Texas Estates Code 353.051 – Exempt Property to Be Set Aside
(a) Unless an application and verified affidavit are filed as provided by Subsection (b), immediately after the inventory, appraisement, and list of claims of an estate are approved or after the affidavit in lieu of the inventory, appraisement, and list of claims is filed, the court by order shall set aside:
(1) the homestead for the use and benefit of the decedent‘s surviving spouse and minor children; and
(2) all other exempt property described by Section 42.002(a), Property Code, for the use and benefit of the decedent’s:
(A) surviving spouse and minor children;
(B) unmarried adult children remaining with the decedent’s family; and
(C) each other adult child who is incapacitated.
(b) Before the inventory, appraisement, and list of claims of an estate are approved or, if applicable, before the affidavit in lieu of the inventory, appraisement, and list of claims is filed:
(1) the decedent’s surviving spouse or any other person authorized to act on behalf of the decedent’s minor children may apply to the court to have exempt property described by Subsection (a), including the homestead, set aside by filing an application and a verified affidavit listing all exempt property that the applicant claims is exempt property described by Subsection (a); and
(2) any of the decedent’s unmarried adult children remaining with the decedent’s family, any other adult child of the decedent who is incapacitated, or a person who is authorized to act on behalf of the adult incapacitated child may apply to the court to have all exempt property described by Subsection (a), other than the homestead, set aside by filing an application and a verified affidavit listing all the exempt property, other than the homestead, that the applicant claims is exempt property described by Subsection (a).
Terms Used In Texas Estates Code 353.051
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Affidavit: means a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office. See Texas Government Code 312.011
- Child: includes an adopted child, regardless of whether the adoption occurred through:
(1) an existing or former statutory procedure; or
(2) an equitable adoption or acts of estoppel. See Texas Estates Code 22.004 - Claims: includes :
(1) liabilities of a decedent that survive the decedent's death, including taxes, regardless of whether the liabilities arise in contract or tort or otherwise;
(2) funeral expenses;
(3) the expense of a tombstone;
(4) expenses of administration;
(5) estate and inheritance taxes; and
(6) debts due such estates. See Texas Estates Code 22.005 - Court: means and includes:
(1) a county court in the exercise of its probate jurisdiction;
(2) a court created by statute and authorized to exercise original probate jurisdiction; and
(3) a district court exercising original probate jurisdiction in a contested matter. See Texas Estates Code 22.007 - Decedent: A deceased person.
- Estate: means a decedent's property, as that property:
(1) exists originally and as the property changes in form by sale, reinvestment, or otherwise;
(2) is augmented by any accretions and other additions to the property, including any property to be distributed to the decedent's representative by the trustee of a trust that terminates on the decedent's death, and substitutions for the property; and
(3) is diminished by any decreases in or distributions from the property. See Texas Estates Code 22.012 - Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Exempt property: means the property in a decedent's estate that is exempt from execution or forced sale by the constitution or laws of this state, and any allowance paid instead of that property. See Texas Estates Code 22.013
- Minor: means a person younger than 18 years of age who:
(1) has never been married; and
(2) has not had the disabilities of minority removed for general purposes. See Texas Estates Code 22.022 - Person: includes a natural person and a corporation. See Texas Estates Code 22.027
- Property: means real and personal property. See Texas Government Code 311.005
(c) At a hearing on an application filed under Subsection (b), the applicant has the burden of proof by a preponderance of the evidence. The court shall set aside property of the decedent’s estate that the court finds is exempt.