How to File a Small Estate Affidavit in Harris County

To file a small estate affidavit in Harris County, you confirm the estate qualifies under Texas Estates Code Chapter 205, prepare a sworn affidavit listing every asset, debt, and heir, get every heir and two disinterested witnesses to sign before a notary, and submit it to the Harris County Clerk with a $360 filing fee for review by one of the four probate courts.¹ The process avoids a full probate administration when the estate is small, solvent, and owns no real property beyond the decedent’s homestead.

Six Conditions the Estate Must Meet

Every one of the following has to be true on the day you sign. Miss any one and the court will reject the filing.²

The decedent died without a valid will.
At least 30 days have passed since the date of death.
No one has been appointed personal representative and no application for appointment is pending.
The estate’s assets, excluding the homestead and other exempt property, are worth $75,000 or less.
Non-exempt assets exceed known debts (also excluding debts secured by exempt property), so the estate is solvent.
The only real property in the estate is the decedent’s homestead.

The last condition catches more families off guard than any other. A rental house, a vacant lot, mineral interests, a share of family land somewhere else in Texas — any of those disqualifies the affidavit no matter how modest the total value.³ The $75,000 cap is also measured on the date you sign the affidavit, not the date of death, so an account or vehicle that appreciated in the interval can push you over.

Who Inherits Under Texas Intestacy

Because a small estate affidavit only works when there is no will, the shares you list in the paperwork come from Texas intestacy law. Getting the shares wrong is one of the fastest ways to have a filing bounced back.

Community Property

Texas is a community property state. The surviving spouse keeps their own half automatically; what happens to the decedent’s half depends on the children.⁴ If there are no children, or every child is a child of the marriage, the surviving spouse inherits the decedent’s half too. If any child came from outside the marriage, that child (and their descendants) takes the decedent’s half, and the surviving spouse keeps only their own half.

Separate Property

Separate property means anything the decedent owned before the marriage, inherited, or received as a gift. With children, the surviving spouse receives one-third of the personal property and a life estate in one-third of the land; the children take the remaining two-thirds of personal property and all the land in fee simple, subject to that life estate. Without children, the spouse takes all personal property and half the land, with the other half going to the decedent’s parents, siblings, or more distant relatives.⁴

No Surviving Spouse

With no spouse, the estate passes to children first. If there are no children, it goes to parents equally. If only one parent survives, that parent takes half and siblings split the other half. With no surviving parents, siblings inherit everything.⁴

A surviving spouse who assumes they inherit everything, when children from a prior relationship exist, will find the paperwork returned.

Preparing the Affidavit

Use the template published by the Harris County Probate Courts. It is available on each court’s resources page, and judges here are particular enough about format that a homemade version invites extra scrutiny.⁵

The affidavit needs a complete inventory of assets with enough detail to verify values. Bank accounts require the institution name, account number, and balance. Vehicles need the VIN and fair market value. Real property needs the full legal description from the deed, not just a street address. The court uses these entries to confirm the estate is at or below $75,000.²

Every known debt has to be listed too: credit card balances, medical bills, funeral expenses. The court compares debts against non-exempt assets to confirm solvency. Funeral costs alone can sometimes tip a small estate into the insolvent column.

Finally, the affidavit lays out the decedent’s family history with enough detail to identify every heir — names, addresses, relationship — and states each heir’s calculated share under intestacy. Leaving out an heir, even a half-sibling the family lost touch with, can void the affidavit later.

Signatures, Witnesses, and Notarization

Every heir with legal capacity must sign. You cannot proceed with one signature missing because someone lives out of state or will not cooperate. If any heir refuses, the small estate affidavit is off the table and you are looking at full probate.

Two disinterested witnesses must also sign. A disinterested witness knows the family well enough to confirm the facts in the affidavit but stands to receive nothing from the estate. Longtime neighbors or family friends usually work best.

Heirs and witnesses sign before a notary public. Banks, UPS stores, and the Harris County Clerk’s office itself offer notary services. Getting everyone together at the same time is often the hardest logistical piece of the whole process.

Filing With Harris County

The filing fee is $360.¹ Attorneys must e-file through eFileTexas.gov.⁶ Self-represented filers are encouraged to e-file but may still file in person at the County Clerk’s office; bring the original notarized affidavit plus copies for your records.

Once the clerk accepts the filing, a cause number is assigned and the case goes to one of the four Harris County probate judges. The judge reviews the affidavit for compliance with Chapter 205. If family history looks incomplete or values seem off, the court may set a brief hearing or ask for more documentation. When everything checks out, the judge signs an order approving the affidavit.

After the Judge Approves

The signed order is what unlocks the assets. Order several certified copies from the County Clerk, because banks, title companies, and the Texas Department of Motor Vehicles will each want their own.

Present a certified copy plus a valid photo ID at each bank; most institutions release funds or retitle accounts within a few business days. For vehicles, the Texas DMV uses the certified copy to transfer title to the heir named in the affidavit.

Recording the Homestead

If the estate includes homestead property, the approved affidavit has to be recorded in the Harris County deed records to move title. That is a separate step from the probate filing. Recording fees are $25 for the first page, $4 for each additional page, and $0.25 for each name beyond five that has to be indexed.⁷ Until it is recorded, heirs will have trouble selling or refinancing, because title companies check the deed records to confirm ownership.

Common Reasons Courts Reject the Affidavit

An heir with legal capacity did not sign.
The asset or debt list is incomplete, throwing off the solvency check.
Assets on the signing date exceed $75,000.
Debts exceed non-exempt assets, so the estate is insolvent.
The estate includes real property besides the homestead.
The notarization is missing, or a signer was not present before the notary.

When the court sends the paperwork back, you can fix the deficiency and refile, but you pay the filing fee again each time. Getting it right the first time matters.

Signers Are Personally Liable

Everyone who signs a small estate affidavit is personally liable for damages that flow from payments or transfers made based on the document.³ That reaches both heirs and witnesses. If someone omits a known creditor, hides an asset, or misstates the family tree to cut out a rightful heir, anyone harmed can sue the signers. The affidavit is sworn, so knowingly false statements can also mean criminal perjury exposure. Verify every entry before you sign.

Medicaid Estate Recovery

If the decedent received Medicaid-funded long-term care after age 55, the Texas Health and Human Services Commission may file a claim against the estate through the Medicaid Estate Recovery Program.⁸ A claim large enough to make the estate insolvent will block the affidavit.

Texas does not pursue recovery when the decedent is survived by a spouse, a child under 21, a child of any age who is blind or permanently disabled, or an unmarried adult child who lived full-time in the decedent’s home for at least one year before death. The state also skips recovery if the estate is worth $10,000 or less or the Medicaid costs total $3,000 or less.⁹

Heirs who do not fit an automatic exemption can apply for a hardship waiver. For homestead property valued under $100,000, the state may waive recovery if household income falls below annual thresholds. For 2025, the limits were $46,950 for a single person and $63,450 for a family of two.⁹ The waiver is not automatic; you have to apply and document the hardship.

The Decedent’s Final Tax Return

The small estate affidavit does not remove the duty to file a final federal income tax return for the decedent covering January 1 through the date of death. The usual filing deadlines apply, and a surviving spouse who has not remarried during the year of death can still file jointly for that year. If a refund is owed and no court-appointed representative exists, whoever files the return attaches IRS Form 1310 to claim it. A surviving spouse filing a joint return skips Form 1310 and signs with the notation “filing as surviving spouse.”¹⁰ Federal estate tax is not a concern at this size; the exemption sits far above the $75,000 cap.¹¹

When This Route Will Not Work

Families sometimes get partway in before realizing they do not qualify. A valid will exists — even a handwritten one. The estate owns non-homestead real property. One heir will not sign. In any of those situations, you are looking at probate of the will, an independent administration, or a determination of heirship proceeding through the same Harris County probate courts. Those cost more and take longer, but they handle what a small estate affidavit cannot. The Harris County Probate Courts publish guidelines and forms for people trying to figure out where their situation fits, and their pro se policies apply to self-represented filers, though staff cannot advise you on whether your facts meet the statute.¹²⁵

1
Harris County Clerk’s Office. Probate Courts
2
State of Texas. Texas Estates Code Section 205-001 – Entitlement to Estate Without Appointment of Personal Representative
3
Justia. Texas Estates Code Chapter 205 – Small Estate Affidavit
4
Texas Legislature. Texas Estates Code Chapter 201 – Descent and Distribution
5
Harris County Probate Courts. Probate Court No. 1 – Resources
6
eFileTexas.Gov. Official E-Filing System for Texas
7
Harris County Clerk’s Office. Real Property
8
Medicaid.gov. Estate Recovery
9
Texas Health and Human Services. Your Guide to the Medicaid Estate Recovery Program
10
Internal Revenue Service. Filing a Final Federal Tax Return for Someone Who Has Died
11
Internal Revenue Service. Estate Tax
12
Harris County Probate Courts. Helpful Guidelines