A Texas small estate affidavit lets heirs claim a deceased person’s property without opening a formal probate case, provided the person died without a will and left $75,000 or less in non-exempt assets that exceed the estate’s debts. Heirs file a sworn statement with the probate court in the county where the decedent lived, a judge reviews and signs an order approving it, and that order becomes the legal authority to collect bank accounts, transfer vehicles, and, in some cases, record title to the homestead.
Who Can Use This Process
Section 205.001 of the Texas Estates Code sets five conditions, and every one has to be met.1State of Texas. Texas Estates Code 205.001 – Entitlement to Estate Without Appointment of Personal Representative
- The decedent died intestate. If any document could function as a will, this route is closed.
- At least 30 days have passed since the date of death.
- No one has applied to be appointed personal representative, and no appointment is pending.
- The estate’s non-exempt assets, valued on the date of the affidavit, total $75,000 or less.
- Those non-exempt assets are worth more than the estate’s known debts.
Miss one, and the affidavit doesn’t apply. You’ll need a different probate path.
What Counts Toward the $75,000
The cap covers non-exempt assets only. Two big categories sit outside it.
The Homestead
The decedent’s primary residence and the land it sits on are excluded, up to 10 acres inside a city or 200 acres in a rural area for a family. A $400,000 house on five acres inside city limits doesn’t count against the $75,000 threshold. Debts secured by the homestead, such as a mortgage, are also excluded from the debt side of the calculation.1State of Texas. Texas Estates Code 205.001 – Entitlement to Estate Without Appointment of Personal Representative
Exempt Personal Property
Texas shields certain personal property from creditors and from the $75,000 count. This typically covers household furnishings, clothing, tools of a trade, and certain vehicles. A surviving spouse and minor children can set aside exempt property before estate debts are paid.
Everything Else
Add up the rest: bank accounts, investment and brokerage accounts, cash, non-exempt vehicles, rental property, and any other assets titled in the decedent’s name. If the total on the day you sign the affidavit is $75,000 or less, you clear the asset test.
Who the Heirs Are
Because a small estate affidavit only works without a will, Texas intestacy law decides who inherits, and the affidavit must list the correct heirs with their shares. Getting this wrong is one of the quickest ways to have a judge reject the filing.
Community Property With a Surviving Spouse
Texas is a community property state. When a spouse dies intestate, the deceased spouse’s half of the community estate passes to the surviving spouse if all of the couple’s children are also the surviving spouse’s children, or if there are no children at all. If the decedent had children from a previous relationship, the deceased spouse’s half of the community property goes to those children instead, and the surviving spouse keeps only their own half.2State of Texas. Texas Estates Code 201.003 – Community Estate of Intestate
Separate Property
Separate property is anything the decedent owned before the marriage or received during it as a gift or inheritance. If the decedent left children, the surviving spouse takes one-third of the separate personal property and two-thirds goes to the children. For separate real property when children survive, the spouse receives a one-third life estate and the children get the remainder. With no children or descendants, the surviving spouse inherits all separate property.3State of Texas. Texas Estates Code Chapter 201 – Descent and Distribution
No Surviving Spouse
The entire estate passes to the children in equal shares. If a child died before the decedent, that child’s children step into the share. With no descendants, the estate passes to the decedent’s parents, then siblings, then more distant relatives.3State of Texas. Texas Estates Code Chapter 201 – Descent and Distribution
What Goes in the Affidavit
Most counties publish a fillable form, but every version calls for the same core content.
Start with the decedent’s full legal name, date of death, and Social Security number. Then identify every potential heir by name, Social Security number, and current address. Leaving out an heir, even one the family has lost touch with, is a defect the judge will catch.
Next comes the asset inventory. List each non-exempt asset with a fair market value as of the date of death, supported by account statements, vehicle valuation tools, or appraisals where appropriate.
Then debts. Disclose every known liability, including credit card balances, medical bills, and outstanding loans. The court uses this section to confirm that assets exceed debts. Understating debts is a bad idea: if a creditor later shows up with a legitimate claim, the heirs who received property can be personally liable.
Every heir listed must sign, and every signature must be notarized. On top of that, two disinterested witnesses with no financial stake in the estate must sign in front of a notary, swearing the information is true.1State of Texas. Texas Estates Code 205.001 – Entitlement to Estate Without Appointment of Personal Representative
Debts Get Paid Before Heirs
Texas law sets a strict priority order for paying claims against an estate, and that order applies here. Funeral expenses and expenses of last illness come first, each capped at $15,000. Administrative expenses come next, then secured debts to the extent they can be paid from the secured property, then delinquent child support, certain state tax obligations, and finally general unsecured debts like credit cards.4State of Texas. Texas Estates Code 355.102 – Claims Classification Priority of Payment
The practical effect: if the estate holds $50,000 in assets and $30,000 in debts, heirs share $20,000, and the higher-priority debts get paid in full before lower ones see a dollar. If the decedent received Medicaid, Texas Health and Human Services may file a Medicaid Estate Recovery Program claim that has to be addressed.
Filing and Getting the Judge’s Approval
File the signed, notarized, and witnessed affidavit with the clerk of the probate court in the county where the decedent lived. Bring a certified copy of the death certificate.
Filing fees vary by county. Dallas County and Travis County both charge $360.5Dallas County. Probate Courts Division – Know Before You Come6Travis County Clerk. Probate Fee Information Smaller counties may charge less. Plan on the filing fee plus a few dollars for each certified copy you’ll need later.
A probate judge reviews the affidavit to confirm the correct heirs are named, assets are properly valued, debts are disclosed, and signatures and disinterested witnesses are in order. If everything checks out, the judge signs an Order Approving Small Estate Affidavit. That order is the legal authority to collect the estate’s assets.1State of Texas. Texas Estates Code 205.001 – Entitlement to Estate Without Appointment of Personal Representative
If the judge spots a problem, expect a rejection rather than a fix from the bench. Common issues include missing heir signatures, asset values that don’t reconcile, undisclosed debts, or any hint that a will might exist. Corrections usually mean refiling, and a new filing may mean another fee.
Using the Order to Collect the Property
Once the order is signed, request several certified copies of both the affidavit and the order from the clerk. Every institution holding an asset will want its own certified copy.
Bank and Investment Accounts
Present a certified copy to each bank or brokerage where the decedent held accounts. The institution verifies the order and releases funds to the heirs identified in the affidavit. Processing usually takes a few business days, and some institutions require their own forms in addition to the court documents.
Vehicles
For motor vehicles, the Texas Department of Motor Vehicles offers a separate Affidavit of Heirship for a Motor Vehicle (Form VTR-262) that heirs can use when no administration has been opened. If the estate has already gone through the small estate affidavit process, heirs can present the certified court order along with the proceedings to transfer title.7Texas Department of Motor Vehicles. Affidavit of Heirship for a Motor Vehicle – Form VTR-262
The Homestead
If the homestead is the only real property in the estate, the approved affidavit can be recorded in the deed records of the county where the homestead sits, which transfers title. That recording creates a chain of title future buyers and title companies can rely on, and a bona fide purchaser without notice of an undisclosed heir takes clear title.8State of Texas. Texas Estates Code 205.006
One boundary worth knowing: the small estate affidavit does not transfer title to non-homestead real estate. A rental property or a vacant lot in the decedent’s name needs a separate proceeding, such as a determination of heirship, to establish ownership.
When This Route Won’t Work
Several situations knock an estate out of eligibility:
- A will exists, even a handwritten one.
- Non-exempt assets exceed $75,000.
- Debts exceed non-exempt assets.
- Someone has already applied to administer the estate.
- An heir refuses to sign or can’t be located.
Texas offers other options when the small estate affidavit is off the table. If a will exists and the estate has no unpaid debts (other than those secured by real property), probating the will as a muniment of title is a relatively simple procedure that establishes ownership without a full administration. For intestate estates over $75,000, heirs who agree can petition for independent administration, which puts one person in charge with minimal court oversight. Dependent administration, with the court supervising every step, is the most involved option and is generally used when heirs disagree or debts are complicated.