A Travis County small estate affidavit lets the heirs of someone who died without a will collect estate assets without opening a full probate, provided the non-exempt assets total $75,000 or less and five other conditions are met. You file the sworn affidavit with the Travis County Probate Court, pay a $360 fee, and wait for a judge to approve it. The fee is not refunded if the judge says no, so the eligibility rules and the contents of the affidavit need to be right the first time.
Who Can Use a Small Estate Affidavit
Texas Estates Code Chapter 205 lists six conditions, and all six must be true before a Travis County probate judge will approve the affidavit.1State of Texas. Texas Estates Code Section 205.001 – Entitlement to Estate Without Appointment of Personal Representative
- No will. The person who died must have been intestate. Any valid will, including a handwritten one, forces a different procedure.
- 30 days have passed. You cannot file until at least 30 days after the date of death.
- $75,000 or less in non-exempt assets. Measured on the date you sign the affidavit, and calculated without counting the homestead or exempt property.
- Assets exceed debts. After subtracting known debts (other than those secured by the homestead or exempt property), something must remain for the heirs.
- No competing probate. No one has applied to have a personal representative appointed, and no court has already appointed one.
- Judge’s approval. A probate judge must review and sign off before the affidavit has legal effect.
The $75,000 cap is where most filers stumble. Exempt property under Texas law includes items such as household furnishings, certain personal property, and family allowances, and the line between exempt and non-exempt is not always obvious. If you are unsure how an item should be counted, it is cheaper to ask an attorney than to lose the filing fee.
How Texas Decides Who Inherits What
Because the affidavit is only available when there is no will, Texas intestacy rules determine each heir’s share. You will have to list those shares in the affidavit, so the math has to match what the statute requires.
Community Property
Texas is a community property state, so most assets acquired during a marriage belong equally to both spouses. If every surviving child of the deceased is also a child of the surviving spouse, the surviving spouse keeps the entire community estate. If the deceased had any child who is not a child of the surviving spouse, the deceased’s half of the community estate passes to the deceased’s children or their descendants, and the surviving spouse keeps only their own half.2State of Texas. Texas Estates Code Chapter 201 – Descent and Distribution
Separate Property
If the deceased had children or their descendants, the surviving spouse receives one-third of the separate personal property and a life estate in one-third of the separate real property. The remaining two-thirds of the personal property and the remainder interest in the real property go to the children. With no children, the surviving spouse takes all the separate personal property; for separate real property, the spouse gets half outright and the other half passes to the deceased’s parents, siblings, or more distant relatives.2State of Texas. Texas Estates Code Chapter 201 – Descent and Distribution
No Surviving Spouse
When no spouse survives, the entire estate passes first to the children and their descendants. If none exist, it goes to the deceased’s parents in equal shares. If only one parent survives, that parent takes half and the other half passes to the deceased’s siblings and their descendants.2State of Texas. Texas Estates Code Chapter 201 – Descent and Distribution
Blended families with children from more than one relationship produce the most errors. Getting the family tree wrong, or miscalculating a share, is one of the most common reasons judges reject these affidavits.
What the Affidavit Has to Contain
Travis County uses its own approved form, and an administrative order from the court requires you to use it rather than a generic template. Download the current version from the Travis County Probate Court’s forms page.3Travis County, Texas. Probate – Small Estate Affidavits
Section 205.002 of the Estates Code sets the required contents.4State of Texas. Texas Estates Code Section 205.002 – Affidavit Requirements You must include:
- Every known asset of the deceased and every known debt, with a note on which assets you claim are exempt from the $75,000 cap. For the homestead, use the full legal description from the county deed records, not a street address.
- The name and address of every heir.
- Enough detail about marriages, children, and other relatives to show why each listed heir qualifies under the intestacy rules.
The affidavit also has to confirm the three threshold facts: 30 days have passed since death, no personal representative has been applied for or appointed, and the non-exempt assets do not exceed $75,000.
Signatures, Witnesses, and the Notary
The affidavit must be sworn to by two disinterested witnesses, every heir with legal capacity to sign, and a natural guardian, next of kin, or court-appointed guardian for any minor or incapacitated heir.4State of Texas. Texas Estates Code Section 205.002 – Affidavit Requirements
The two disinterested witnesses cannot be heirs or anyone who stands to gain from the estate. They do need to know enough about the deceased’s family to confirm the heirship information. Finding witnesses who actually knew the family can be the hardest part, especially if the deceased was elderly or had few close contacts.
Because the document must be sworn, every signature has to be taken under oath by a notary or other authorized officer. One missing signature and the court will reject the filing.
The Homestead Rule for Real Estate
Under Section 205.0025, a small estate affidavit can transfer the deceased’s homestead only if the homestead is the only piece of real property in the estate. If the deceased owned any other real property, even a vacant lot, the homestead cannot be transferred this way and the other property cannot be transferred this way either. Families in that situation generally need a different procedure, such as a determination of heirship.
When the homestead does qualify, you file a certified copy of the approved affidavit and the court’s order in the Travis County deed records to update the chain of title. Title companies and future buyers rely on that recorded document.
Where and How to File in Travis County
The filing fee is $360, and it is nonrefundable even if the judge denies the affidavit.5Travis County Clerk. Probate Fee Information
Attorneys must file probate documents electronically through the county’s e-filing system. If you are representing yourself, e-filing is available but not required.6Travis County Clerk. Civil eFiling Self-represented filers who prefer to deliver documents in person can file through the Probate Division of the County Clerk’s office. Once the clerk processes the filing, the case receives a cause number that serves as the identifier for tracking its status.
If You Cannot Afford the Fee
Texas courts allow a fee waiver through a Statement of Inability to Afford Payment of Court Costs. The form asks for household income, government benefits, expenses, and dependents. You qualify if you receive means-tested public benefits such as Medicaid, SNAP, SSI, or TANF, if a legal aid provider has represented you or found you eligible, or if paying the fee would prevent you from covering basic household needs. The clerk reviews the statement and may use federal poverty guidelines as a reference. If granted, the waiver covers filing fees and other court-charged costs.
What the Judge Does, and What Happens if the Answer Is No
The statute gives the judge discretion. The court “may approve the affidavit” if it conforms to the requirements of Chapter 205, but is not required to approve it even when the paperwork looks correct on its face.7State of Texas. Texas Estates Code Section 205.003 – Examination and Approval of Affidavit The judge checks that the asset and liability lists are complete and consistent, that the family history supports the claimed heirship, and that the distributive shares match the intestacy statutes.
If the judge approves it, the court issues a signed Order Approving Small Estate Affidavit. If the judge denies it, Chapter 205 does not provide a specific appeal route. Families in that position usually have to start over with a different probate procedure, such as an application for administration or a determination of heirship. The $360 does not come back. That is the reason to be certain of the estate’s eligibility before you file.
Collecting the Assets After Approval
Approval does not deliver anything to the heirs on its own. Under Section 205.004, the distributees have to give a certified copy of the approved affidavit to every person or institution that owes money to the estate, holds estate property, or acts as a transfer agent for estate assets.8State of Texas. Texas Estates Code Section 205.004 – Copy of Affidavit to Certain Persons
You get certified copies from the Travis County Clerk at $5.00 per document plus copying charges.5Travis County Clerk. Probate Fee Information Order several. Each bank, brokerage, and insurance company holding assets will want its own certified copy, and if a homestead is involved you will file one in the Travis County deed records.
What Signers Are on the Hook For
Signing a small estate affidavit carries personal exposure. Under Section 205.007, every person who signed is personally liable for damage or loss arising from payments or transfers made in reliance on the affidavit. Distributees also answer to anyone with a prior right to the property and to any personal representative appointed later.9State of Texas. Texas Estates Code Section 205.007 – Liability of Certain Persons
In practice, if the affidavit got something wrong, whether an asset, a debt, or an heir, and someone is harmed, the people who signed can be sued. A creditor whose debt was left off can pursue the distributees directly. An omitted heir can come forward and demand their share. That exposure is the trade-off for skipping the oversight and statutory protections of a formal probate administration. The heirs who sign are vouching for the whole document.