Texas Small Estate Affidavit: Who Can Use It, What It Covers, and How to File It

A Texas small estate affidavit is a court-filed procedure for distributing an intestate estate, one with no will, without appointing a personal representative. Under Estates Code § 205.001 (opens in a new tab), more than 30 days must have passed since the death, no petition to appoint a personal representative can be pending or granted, and the estate assets, not counting homestead and exempt property, cannot exceed $75,000. Those assets must also exceed the known liabilities that qualify. Each legally capable distributee and two disinterested witnesses swear to the affidavit, the clerk files it, a judge examines and approves it, and certified copies then go to the people or offices holding the property.

What a small estate affidavit does

The procedure comes from Chapter 205 of the Texas Estates Code (opens in a new tab). It lets the people entitled to a deceased person's property, called distributees, receive it without waiting for a court to appoint an executor or administrator. It does not remove the court from the process. The affidavit is filed with the court clerk, and under § 205.003 a judge examines it and may approve it only when it conforms to the chapter.

The procedure also has a narrow reach. It applies when the person died without a will, and it does not change property that passes under a will. If a will exists, a different route fits, and our Texas probate process guide walks through the main ones. If you are sorting out what happens when there is no will at all, dying without a will in Texas explains who inherits.

What conditions must be met before filing?

Section 205.001 sets out the conditions, and all of them have to be true, not only the dollar amount:

1. At least 30 days have passed since the death.
2. No petition for appointment of a personal representative is pending or granted.
3. The qualifying estate assets are $75,000 or less.
4. Those assets exceed the known liabilities that count under the statute.
5. A compliant affidavit is filed with the proper clerk and a judge approves it.

The limit has not always been $75,000. House Bill 2271 (opens in a new tab) raised it from $50,000, effective September 1, 2017, and the current Estates Code keeps the $75,000 figure.

What property counts toward the $75,000 limit?

The statute measures the value of estate assets on the date of the affidavit and leaves out homestead and exempt property. Both terms are defined by reference to property that can be set aside under Estates Code § 353.051 (opens in a new tab). Section 205.001 does not list a separate family allowance as an additional exclusion, so do not assume one applies.

The debt side works the same way. The statute compares the assets that count against known liabilities, and it leaves out liabilities secured by the homestead and exempt property. It is not a simple net-worth subtraction of every debt from every asset. The affidavit lists assets and liabilities, and it points out which assets the family claims as exempt under § 205.002(b).

Who signs the affidavit?

Under § 205.002 (opens in a new tab), the affidavit is sworn to by two disinterested witnesses and by each distributee who has legal capacity. When a distributee is a minor, the natural guardian or next of kin signs where the statute allows it. When a distributee is otherwise incapacitated, that person's guardian signs.

Two points trip people up. One heir cannot sign for everyone else, because each capable distributee must swear to the affidavit. And the two witnesses must be disinterested, so heirs do not qualify as the witnesses. TexasLawHelp also lists an heir who cannot be found and an heir who refuses to sign as situations where its small estate instructions should not be used.

What information and documents does it need?

The affidavit has to show that the 30 days have passed, that no personal representative petition is pending or granted, and that the asset condition is met. It includes:

• A list of all known estate assets and liabilities.
• The name and address of each distributee.
• Family history facts that show each distributee's right to the money or property.
• An indication of which listed assets are claimed as exempt.

In practice, TexasLawHelp's small estate affidavit form (opens in a new tab) and the Texas court instructions (opens in a new tab) also point to a death certificate, a proposed order approving the affidavit, a civil case information sheet or other local forms, and either the filing fee or a fee-waiver application. Some courts have their own checklist; the Bexar County Probate Court small estate checklist (opens in a new tab) is one example.

Where is it filed, and what does it cost?

The affidavit goes to the clerk of the court that has jurisdiction and venue over the estate. The Texas court instructions generally direct filing in the county where the person lived at death, with special venue rules when the person lived outside Texas or did not live in the filing county. Ask the county clerk or probate court whether a local form is required and whether e-filing is available.

Costs are set county by county. The Travis County Clerk's probate fee page (opens in a new tab) lists a Small Estate Affidavit filing fee of $360, and other charges can apply for certified copies, recording, or local requirements. That is one county's example, not a statewide amount. Check the current fee schedule for the county where you would file.

What does the judge do, and how long does approval take?

Under § 205.003 (opens in a new tab), the judge examines the affidavit and may approve it if it conforms to Chapter 205. Chapter 205 does not set a number of days for that review. The timing depends on the court's own procedures, how complete the filing is, and whether the judge asks for corrections or a hearing, so ask the clerk or probate court how long review usually takes in that county. For a wider look at timing across probate routes, see how long probate takes.

What happens after approval?

After approval, the distributees give certified copies of the affidavit to the people who owe money to the estate, who hold estate property, or who act as a registrar, fiduciary, or transfer agent for an estate interest, debt, or right, as § 205.004 (opens in a new tab) describes. Under § 205.005, the approved affidavit is kept as a local-government record. If the county does not keep records that way, the county clerk records it in a Small Estates book after the legal recording fee is paid.

Section 205.007 protects a person who pays, delivers, or transfers property in reliance on the affidavit, to the same extent as if they were dealing with a personal representative. The distributees stay answerable to anyone with a prior right and accountable to a personal representative appointed later. Each person who signed the affidavit may be liable for damage or loss that comes from a transfer made in reliance on it.

Can it transfer a bank account or a vehicle?

Chapter 205 is written broadly for estate money, property, and rights that are identified in the affidavit and covered by the judge's approval. Bank accounts and personal belongings are common examples, and each bank or holder may add its own documentation requirements. A certified court copy is the starting document, and a different institution may use a different intake process.

Vehicles have their own step. The TxDMV Motor Vehicle Title Manual (opens in a new tab) says a court-approved small estate affidavit must be recorded in the Small Estates records, and a certified copy must accompany the title transaction. A minor heir needs the right guardian papers or court authorization. TxDMV's deceased-owner FAQ (opens in a new tab) separately lists an Affidavit of Heirship for a Motor Vehicle, Form VTR-262, for estates that are not probated, so confirm which route fits with your county tax assessor-collector's office.

Can it transfer a house or other land?

Usually not. Under § 205.008(b), Chapter 205 does not transfer title to real property except as provided by § 205.006, which covers a limited homestead situation. If the person owned land other than that homestead, the small estate affidavit is not the tool for it, and TexasLawHelp lists ownership of other real property among the reasons not to use its small estate instructions.

What are the alternatives when Chapter 205 does not fit?

TexasLawHelp (opens in a new tab) describes several other routes, and the right one depends on the will, the property, the debts, and the heirship facts:

• Affidavit of heirship: a non-court affidavit commonly used to document heirship, especially for real property, subject to acceptance by the title or property-records office.
• Determination of heirship: a court proceeding that decides who the heirs are and what each one receives.
• Muniment of title: a way to probate a will without a full administration, when the will exists and the statutory requirements are met.
• Independent or dependent administration: a probate administration with lighter or heavier court supervision.

If the person received Medicaid, ask whether the state's Medicaid Estate Recovery Program (opens in a new tab) could apply before you list assets and liabilities.

Frequently asked questions

These answers add details that matter once you have the basics in hand.

Can I file a small estate affidavit without an attorney?

TexasLawHelp and the Texas courts publish forms, instructions, and proposed orders for people who file on their own. Those materials also say the requirements can be complex and that local courts may add their own rules, so check with the clerk before you file.

How much does a small estate affidavit cost in Texas?

Fees depend on the county. Travis County lists a $360 Small Estate Affidavit filing fee, and Texas Local Government Code § 135.102 sets a $223 local civil fee on filing a probate case. Certified copies, recording, and local requirements can add charges.

How long does a small estate affidavit take?

The statute sets a 30-day waiting period after death but no deadline for the judge. The review time depends on the court and on how complete the filing is, so ask the county clerk or probate court for the current expectation.

Where can I find Spanish-language help?

When you contact the county clerk, use the English names of the statute and the court forms, such as small estate affidavit, and ask whether Spanish assistance or translated instructions are available. Many Spanish searches use phrases like declaración jurada de pequeña sucesión.

Next step

If your situation does not fit these conditions, or you want someone to review the affidavit before you swear to it, you can find a Texas probate lawyer near you on Counselado, and the Texas probate process guide covers the other routes in more detail.