To transfer property after death without a will in Texas, you use one of three tools: a small estate affidavit for modest estates, an affidavit of heirship for real estate held long-term, or a court proceeding to declare heirship when the estate is larger or a quick sale is needed. Which one fits depends on the size of the estate, whether it includes real property beyond the family home, and how soon the heirs want to sell. Before choosing a tool, you need to know who legally inherits under Texas law, because that answer drives every document you file.
Who Inherits When There Is No Will
Texas Estates Code Chapter 201 sets a fixed order of heirs. The rules turn on two questions: was the deceased married, and is the property community property or separate property? Community property is generally what either spouse earned or acquired during the marriage. Separate property is what a spouse owned before the marriage or received as a gift or inheritance during it.
Community Property
If the deceased was married and every surviving child is also a child of the surviving spouse, the spouse inherits the deceased’s entire half of the community estate. The spouse already owns the other half, so in practice the surviving spouse keeps everything acquired during the marriage.1State of Texas. Texas Estates Code 201.003 – Community Estate of an Intestate
When the deceased has children from a prior relationship or outside the marriage, the picture changes. The surviving spouse keeps their own half of the community property, but the deceased’s half passes entirely to those children. The surviving spouse inherits none of that half.1State of Texas. Texas Estates Code 201.003 – Community Estate of an Intestate
Separate Property
When the deceased leaves both a surviving spouse and children, the spouse receives one-third of the separate personal property outright, and the children split the remaining two-thirds. Separate real estate is treated differently. The spouse does not get outright ownership of one-third of the land. Instead, the spouse takes a life estate in one-third, meaning they can use it during their lifetime but cannot sell it or leave it to anyone else. On the spouse’s death, that one-third reverts to the children. The children inherit the other two-thirds of the land immediately.2State of Texas. Texas Estates Code 201.002 – Separate Estate of an Intestate
No Spouse or No Children
If the deceased was unmarried, the whole estate passes to the children in equal shares. If no children survive, the estate flows to parents, then siblings, then to more distant relatives such as grandparents, aunts, uncles, and cousins.3State of Texas. Texas Estates Code 201.001 – Estate of an Intestate Not Leaving Spouse Texas searches exhaustively for heirs before any estate escheats to the state, so truly heirless estates are rare.
Documents to Gather First
Every transfer method starts with the same paperwork. Order several certified copies of the death certificate. Banks, courts, and title companies will each want their own. Build a complete family tree that accounts for every biological and adopted child, every prior marriage, and any relatives who died before the deceased. That record is what proves no heir has been left out.
Pull together a full inventory of assets and debts: bank statements, recorded deeds, vehicle titles, appraisals or tax assessments showing fair market value on the date of death, and any outstanding mortgages, credit card balances, or medical bills. Some assets bypass this whole process. Life insurance with a named beneficiary, retirement accounts, payable-on-death bank accounts, and transfer-on-death deeds all pass directly to the named recipient and do not count toward the limits below.
Small Estate Affidavit
The fastest and cheapest route is the small estate affidavit under Texas Estates Code Chapter 205. It works when the estate’s assets, not counting the homestead, exempt property, and non-probate assets, total $75,000 or less.4State of Texas. Texas Estates Code 205.001 – Small Estate Affidavit
Several other conditions apply. Assets must exceed debts. The only real property the deceased can have owned is the homestead, and that homestead must pass to a surviving spouse or minor children who lived there at the time of death. At least 30 days must have passed since the death, and no application for a personal representative can be pending.
Every heir signs the affidavit under oath. When heirs are scattered or any heir is a minor, this becomes harder. Some courts will not approve the affidavit at all if minor heirs are involved. Two disinterested witnesses, people who know the family history but stand to inherit nothing, must also sign. The document lists every asset, every debt, and every heir with their share under the intestacy rules.
You file the notarized affidavit with the probate clerk in the county where the deceased lived. Filing fees vary by county and typically run several hundred dollars. A probate judge reviews it and, if satisfied, signs an order approving it without a hearing. That order is what unlocks the assets. Banks release funds on seeing a certified copy. The Texas Department of Motor Vehicles retitles vehicles based on it. For the homestead, record the approved affidavit in the county’s real property records so the chain of title is clear. Order several certified copies from the clerk at the start.
Real property other than the homestead cannot transfer through this method. If the deceased owned other land, you need one of the tools below.
Affidavit of Heirship
When real estate is the main asset and the family wants to stay out of court, an affidavit of heirship under Chapter 203 is often the practical answer. It is not a court filing. It is a sworn statement recorded in the county deed records that identifies who inherited the property.5State of Texas. Texas Estates Code 203.001 – Recorded Statement of Facts as Prima Facie Evidence of Heirship
The affidavit follows a statutory form. It covers the deceased’s full marital history, every child (biological and adopted), whether a will was left, and whether any estate debts remain unpaid. It has to describe the real property using the legal description from the deed, not the street address.6State of Texas. Texas Estates Code 203.002 – Affidavit of Facts Concerning Identity of Heirs Two disinterested witnesses who know the family but have no stake in the property sign along with the affiant. It gets notarized and recorded in the deed records of the county where the property sits.
There is a catch on timing. An affidavit of heirship becomes prima facie evidence of heirship, meaning courts and title companies treat it as presumptively true, only after it has been on file for at least five years.5State of Texas. Texas Estates Code 203.001 – Recorded Statement of Facts as Prima Facie Evidence of Heirship Most title insurers will not insure a sale based on the affidavit alone until that period has passed. If the heirs plan to sell sooner, they will likely need the court proceeding described below. For families keeping the property, recording the affidavit now locks in the chain of title cheaply and heads off the tangled “heir property” problems that can lead to tax foreclosures a generation later.
Proceeding to Declare Heirship
When the estate is too large for the small estate affidavit, includes non-homestead real property the heirs want to sell soon, or contains any dispute about who the heirs are, the standard route is a formal proceeding to declare heirship under Chapter 202. This is a real court case with a hearing, testimony, and a binding judgment.
Anyone with an interest in the estate can file the application with the probate court in the county where the deceased lived. The court appoints an attorney ad litem to represent any heirs whose identities or locations are unknown.7State of Texas. Texas Estates Code 202.009 – Attorney Ad Litem The court can also expand that attorney’s role to protect an heir who is incapacitated.
At the hearing, the applicant and at least one witness who is not an heir testify about the deceased’s family, marital history, and the identity of every heir. If the judge is satisfied, the court enters a judgment naming the legal heirs and their shares. Title companies, banks, and government agencies treat that judgment as definitive. There is no five-year wait, and the property can be sold immediately.
This route costs more because it involves attorney fees, the ad litem’s fees, and higher court costs. For estates with real property worth selling, or where any heir’s identity or share is contested, the judgment is usually worth the cost. It clears title now.
Debts, Homestead Rights, and the Order of Payment
Heirs do not owe the deceased’s debts personally, but valid creditor claims come out of the estate before anything is distributed. Texas ranks claims by class: funeral and last-illness expenses first (each with a $15,000 priority cap), then administration costs, then secured debts like mortgages paid from the property that secures them, then delinquent child support, taxes, and other categories through general unsecured debts. Higher classes are paid in full before lower classes receive anything.8State of Texas. Texas Estates Code 355.102 – Classification of Claims
Some property is shielded from most creditor claims. A surviving spouse has the right to live in the homestead for life, even if the home was the deceased’s separate property and the intestacy rules would otherwise send it elsewhere. Minor children share that right. The spouse must keep up with property taxes, mortgage payments, and basic maintenance. The homestead and up to $100,000 in specified personal property pass free from most creditor claims when a surviving spouse, minor child, or adult child living in the home survives the deceased. These protections apply automatically, though recording the right documents avoids later confusion.
Taxes and Why Getting Title Right Matters
Texas has no state estate tax and no inheritance tax. The only estate-level concern is federal, and the 2026 federal estate tax exemption is $15 million per person, or $30 million for a married couple, following the increase enacted by the One Big Beautiful Bill Act signed in July 2025.9Internal Revenue Service. Whats New – Estate and Gift Tax Nearly all Texas estates fall well below that threshold and owe nothing.
Inherited property carries a tax advantage worth protecting. Under federal law, the tax basis of an inherited asset is its fair market value on the date of death, not what the deceased paid for it.10Office of the Law Revision Counsel. 26 USC 1014 – Basis of Property Acquired From a Decedent If a parent bought a house for $80,000 and it was worth $350,000 at their death, the heir’s basis is $350,000. A sale at $360,000 triggers capital gains tax on $10,000, not on $280,000. This stepped-up basis can save heirs tens of thousands of dollars, and capturing it depends on documenting date-of-death value and completing the title transfer properly instead of leaving the property in the deceased’s name.