Small Estate Affidavit in Texas: Rules, Limits and Who Qualifies

When someone dies in Texas without a will and leaves only a modest estate, the family may not need a full probate case to collect what they left behind. Texas offers a shortcut called a small estate affidavit. It can move bank accounts, vehicles and, in some cases, the family home to the heirs for a fraction of the cost and time of probate.

It also has strict limits. This guide covers who can use a small estate affidavit in Texas, the $75,000 cap, what the court requires, how it applies to a house, and how it compares to an affidavit of heirship.

What Is a Small Estate Affidavit in Texas?

A small estate affidavit is a sworn statement, filed with the probate court, that lists what the person who died owned and owed and identifies who inherits it under Texas law. Once a judge approves it, the people holding the deceased person's property, such as a bank, can release it to the heirs named in the affidavit. It is governed by Chapter 205 of the Texas Estates Code.

It is meant for simple estates. No executor or administrator is appointed, and there is no ongoing court supervision.

Who Can Use a Small Estate Affidavit?

Under Texas Estates Code Section 205.001, a small estate affidavit can be used only when all of these are true:

• The person died without a will. The procedure is for intestate estates. If there is a will, it generally has to go through probate instead.
• At least 30 days have passed since the date of death.
• No one has asked the court to appoint a personal representative for the estate, and none has been appointed.
• The estate is worth $75,000 or less, not counting the homestead and other property that is exempt under Texas law.
• The affidavit is filed with the clerk of the court that would handle the probate, and a judge approves it.

The $75,000 limit leaves out the homestead and exempt property, which is why a family with a paid-off house can sometimes still qualify.

What Goes Into the Affidavit

Section 205.002 sets out what the affidavit must include and who signs it. It must be sworn to by:

• Each heir (the law calls them distributees) who has legal capacity.
• Two disinterested witnesses, meaning people who knew the family but do not inherit anything.

It must also include:

• A list of all known assets and debts of the estate, with any exempt assets marked as exempt.
• The names and addresses of the heirs.
• The family history facts that show who the heirs are and what share each one receives.

The judge reviews the affidavit for these elements before approving it. If something is missing or the estate does not qualify, the court can reject it.

Can a Small Estate Affidavit Transfer a House?

Sometimes. Under Section 205.006, a small estate affidavit can transfer title to the deceased person's homestead if the homestead is the only real property in the estate. Once approved, the affidavit has to be recorded in the deed records of the county where the house is located.

That leaves some common situations out:

• A rental house, vacant lot or second home cannot be transferred this way.
• If the deceased owned any other real estate besides the homestead, the homestead transfer under this section is not available.
• Title companies review these transfers closely, and some apply the rules more narrowly. Talk to the title company before counting on a small estate affidavit to sell the house.

Small Estate Affidavit vs. Affidavit of Heirship

Families often mix these two up. Both are sworn statements about the family, both use two disinterested witnesses, and both can help heirs deal with property without a full probate. The differences matter:

• Court involvement: A small estate affidavit is filed with the probate court and must be approved by a judge. An affidavit of heirship is recorded with the county clerk, and no court approves it.
• Value limit: A small estate affidavit is capped at $75,000, not counting the homestead and exempt property. An affidavit of heirship has no dollar limit.
• What it covers: A small estate affidavit can collect money and personal property and, in limited cases, transfer the homestead. An affidavit of heirship is mainly used to show who owns real estate.
• Who decides if it works: With a small estate affidavit, the judge decides. With an affidavit of heirship, the title company decides whether it will rely on it.

If the person left a will, neither tool fits well. If they recorded a transfer on death deed before they died, the house may pass to the named beneficiary without either one.

When Several Heirs Share the House

A small estate affidavit splits ownership according to Texas intestacy law, so a house often ends up owned by several children or relatives at once. Every co-owner then has a say in whether to keep, rent or sell the property, and they do not always agree. If that is where your family is, it helps to understand your options when siblings inherit a house together before anyone signs anything.

Heirs who move into the house may also be able to claim the homestead exemption on it as heir property, which can lower the property tax bill while the family decides what to do.

Common Questions About Small Estate Affidavits in Texas

How much does a small estate affidavit cost?

Expect a court filing fee and, if the homestead is involved, a county recording fee. Fees vary by county, so check with the county clerk.

Do I need a lawyer?

No, but courts reject affidavits that are incomplete, and some judges have their own requirements. Free forms and instructions are available through TexasLawHelp.org, and many families have a probate attorney review the affidavit before filing.

Can I use a small estate affidavit if there is a will?

Generally no. Chapter 205 is for estates of people who died without a will. With a will, look at probate options such as muniment of title with a Texas attorney.

What if the estate is worth more than $75,000?

Then a small estate affidavit is not available, not counting the homestead and exempt property. The family will usually need some form of probate or, for real estate, an affidavit of heirship that a title company will accept.

How long does it take?

You must wait at least 30 days after the death to file. After that, it depends on how quickly you can gather the information and signatures and on the court's schedule for reviewing it.

The Bottom Line

A small estate affidavit is a low-cost way to settle a simple Texas estate when there is no will and the estate is under $75,000, not counting the homestead. It needs every heir and two disinterested witnesses to sign, and a judge has to approve it. It can transfer the homestead only when that is the only real estate in the estate. For anything more complicated, compare it with an affidavit of heirship or probate before you file.

This article is general information, not legal advice. Laws and court practices vary, so speak with a Texas probate attorney about your specific situation.