A Texas small estate affidavit is a sworn court filing that lets the heirs of someone who died without a will collect the estate’s assets without opening a full probate case, provided the non-exempt assets are worth $75,000 or less. You file it with the probate court in the county where the person lived, a judge reviews it, and once signed, certified copies let you clear out bank accounts, retitle a vehicle, and transfer the homestead to the people entitled to inherit it. The process is faster and far cheaper than formal administration, but every statutory box has to be checked or the court will deny it and keep the filing fee.
Who Can Use It
Texas Estates Code Section 205.001 sets seven conditions, and all of them must be true on the day the affidavit is signed.1State of Texas. Texas Estates Code 205.001
- The deceased left no valid will. If one surfaces later, even an informal one, the affidavit cannot be used.
- The total value of non-exempt estate assets does not exceed $75,000, measured as of the date the affidavit is signed.
- The estate is solvent. Non-exempt assets must exceed known debts, not counting anything secured by the homestead or exempt property.
- At least 30 days have passed since the date of death.
- No one has a pending application to be appointed personal representative, and no court has already appointed one.
- The estate contains no real property other than the homestead. A rental house, vacant lot, or out-of-state parcel forces you into full probate.
- If the estate includes a homestead, it passes to a surviving spouse or to minor children who were living there at the time of death.
Judges sometimes refuse to approve the affidavit when a minor is among the heirs, even if every other condition is met. If that applies, talk to a probate attorney before filing.
What Doesn’t Count Toward the $75,000
Exempt property is excluded from the cap entirely, so a family can keep a meaningful amount of personal property and still qualify. Texas protects a combined value of up to $100,000 for a family or $50,000 for a single person, covering home furnishings and heirlooms, clothing, household pets, two firearms, one motor vehicle per licensed family member, farming and ranching equipment, and athletic gear.2Texas Law Help. Exempt Property in Debt Collection – Forms and Instructions The homestead is also excluded from the cap, subject to the inheritance rule noted above.
Who Inherits Under Texas Intestacy Rules
Because the affidavit only works when there is no will, Texas intestacy law decides who gets what. The form requires you to list every heir and their exact percentage share, and the judge compares those percentages to the statute.
With a Surviving Spouse
Community property and separate property are handled differently. If the deceased had no children, or every child is also a child of the surviving spouse, the surviving spouse inherits the entire community estate. If any child is from another relationship, the deceased’s half of the community estate passes to the children.3Texas Legislature. Texas Estates Code Chapter 201 – Descent and Distribution For separate property, when children survive, the spouse takes one-third of the personal property and a life estate in one-third of the land, with the rest going to the children. With no children, the spouse takes all the personal property and half the land; the other half goes to the deceased’s parents or siblings.
With No Surviving Spouse
Children and their descendants inherit first. If there are none, the estate goes in equal shares to the deceased’s parents. If only one parent survives, that parent takes half and the siblings share the other half. If no parent survives, the siblings inherit everything.3Texas Legislature. Texas Estates Code Chapter 201 – Descent and Distribution
What to Gather Before You Start
Pull all of this together before you sit down with the form. Stopping partway to track down an account number or an heir’s address is the usual reason filings drag out for weeks.
- Several certified copies of the death certificate from the county clerk or vital statistics office. You will need them for the court and for each institution later.
- A complete asset inventory with values as of the date of death: bank and brokerage statements, vehicle valuations, and any other personal property.
- The legal description of the homestead if one exists. The county appraisal district website usually carries it if you cannot find the deed.
- A list of known debts, including medical bills, credit card balances, funeral expenses, and secured debts. The affidavit has to show non-exempt assets exceed non-exempt debts.
- Full legal name, address, phone, email, relationship to the deceased, and inheritance percentage for every heir.4Parker County Probate Court. Small Estate Affidavit Checklist
- Family history details: marital history, every child (including those who died before the deceased and left descendants), and any children born outside marriage. The judge uses this to confirm you have identified every heir.
Filling Out and Signing the Affidavit
Most Texas counties use their own version of the form, so start at the probate clerk’s website for the county where the deceased lived. Dallas County, for example, posts a required PDF.5Dallas County. Small Estate Affidavit Required Form Other counties give you a checklist of required contents and expect you to draft the affidavit yourself or have a lawyer prepare it. Call the clerk’s office first to confirm.
The form tracks the statute. You will state that 30 days have passed, that no personal representative is pending or appointed, and that non-exempt assets stay under $75,000. You then list every asset with its value, every debt, and show the math works. The family history section is where filings most often fail: lay out the deceased’s family tree as it bears on inheritance, name every living heir, and state each share as a percentage that matches the intestacy rules. Wrong percentages are an automatic denial.
Every heir must sign. If an heir cannot sign personally, someone with legal authority, such as a guardian for a minor, signs for them. Two disinterested witnesses also have to sign, verifying the family history and the asset and debt figures. A disinterested witness cannot be an heir, cannot gain financially from the estate, and generally cannot be related by blood or marriage to any heir. A notary witnesses all the signatures before the affidavit goes to court.
Filing With the Probate Court
Take the completed, signed, and notarized affidavit to the probate clerk in the county where the deceased lived. The filing fee is typically $360, covering local and state court costs.6Harris County Clerk’s Office. Probate Courts7Denton County, TX. Probate Fees It is nonrefundable, which is why a flat-fee attorney review before filing is often worth it.
The clerk routes the affidavit to a probate judge, who verifies every statutory requirement. If everything checks out, the judge signs an approval order and the affidavit becomes a public record.8Social Security Administration. Texas Small Estates If anything is wrong, the affidavit is denied and you lose the fee. The usual problems: miscalculated heir shares, missing heirs, assets that push the estate over the cap, and real property beyond the homestead.
Using the Approved Affidavit to Collect Assets
After the judge signs, return to the clerk and order certified copies of both the affidavit and the court order. These usually run $5 per document plus $1 per additional page.9Bexar County Clerk. Probate Department Fee Schedule Order more than you expect to need. Every bank, brokerage, insurer, and government agency will want its own copy, and extra trips to the courthouse waste days.
Bring a certified copy of the affidavit and order, a certified death certificate, and your photo ID to each institution holding the deceased’s assets. Banks release account funds, brokerages transfer investment accounts, and the Department of Motor Vehicles handles vehicle title transfers. Institutions that receive a properly certified copy are protected by law when they release assets to the named heirs, so most comply without resistance. Some will also hand you their own internal form to complete.
Recording the Homestead
If the estate includes a homestead, file a certified copy of the approved affidavit with the county clerk in the county where the property sits.10Texas State Law Library. Informal Methods – Probate Law This puts the affidavit into the property records and establishes a clean chain of title. Skip this step and title companies will flag the gap when the heirs try to sell or refinance later.
Obligations That Don’t End With the Affidavit
Approval closes the probate question but not the deceased person’s other accounts with the federal government.
Someone must file a final federal income tax return on Form 1040 covering income from January 1 through the date of death, due on the same date it would have been otherwise, typically April 15 of the following year. If a refund is owed, attach Form 1310 to claim it.11Internal Revenue Service. File the Final Income Tax Returns of a Deceased Person
Funeral homes usually report deaths to the Social Security Administration automatically. If none was involved, call 1-800-772-1213 with the deceased’s name, Social Security number, date of birth, and date of death.12Social Security Administration. What to Do When Someone Dies Any benefits paid for months after the death must be returned.
If the deceased received Medicaid-funded long-term care, the state may file a claim against the estate through the Medicaid Estate Recovery Program. The claim is paid after secured debts like a mortgage but can shrink what heirs receive. The state will not pursue recovery when an unmarried adult child lived full-time in the Medicaid recipient’s home for at least a year before the death, and a hardship exemption may apply when the homestead is worth less than $100,000 and the heir’s income falls below a yearly threshold. Heirs who kept up the home during a nursing stay can also deduct property taxes, utilities, insurance, and repair costs they paid.13Texas Health and Human Services. Your Guide to the Medicaid Estate Recovery Program