What a small estate affidavit is in Texas
A Texas Small Estate Affidavit is a sworn statement that the distributees of an intestate estate file with the probate court. If the judge approves it, the family can collect personal property and, in a narrow case, transfer the homestead without opening a full administration. The procedure lives in Texas Estates Code Chapter 205. It is not an out of court bank form. A judge must examine and approve the affidavit before it has legal effect.
The tool on this site is built for families handling a small estate without a lawyer. You can still file yourself for free using the county probate clerk and the statewide packet on Texas Law Help. This service is a convenience, not a requirement.
Who qualifies
Under Texas Estates Code section 205.001, the distributees may use this path only if every one of these is true. The person died without a will. At least 30 days have passed since the date of death. No petition to appoint a personal representative is pending or has been granted. The value of the estate assets, excluding homestead and exempt property, does not exceed $75,000. The remaining assets exceed the known liabilities, excluding debts secured by homestead and exempt property. An affidavit that meets section 205.002 is filed in the court with jurisdiction and venue. The judge approves it.
Eligible filers are the distributees: typically a spouse, adult child, parent, sibling, or other heir entitled to the property. All distributees must sign. Two disinterested witnesses must also sign. If a distributee is a minor or incapacitated, a parent or guardian signs as the statute requires.
What assets count and what assets do not count
Count bank accounts titled in the decedent's name alone, vehicles, household goods, brokerage cash, and other probate personal property. Do not count the homestead or exempt property when you test the $75,000 cap. Do not count nonprobate assets such as life insurance payable to a named beneficiary, payable on death accounts, or property held in joint tenancy with right of survivorship. Those pass outside this affidavit.
The estate must be solvent on the affidavit date. If known unsecured debts exceed the nonexempt assets, the court should not approve the shortcut.
What real estate rules apply in Texas
Chapter 205 does not transfer ordinary real estate. Section 205.006 allows the homestead only if it is the only real property in the estate. Title may pass to a surviving spouse or minor child who occupied the homestead, and the approved affidavit must be recorded in the deed records of a county where the homestead sits. If there is any other tract of land, a different probate path is required.
Step by step filing process
- Wait 30 days from the date of death and confirm no administration is pending.
- List every asset and known debt. Separate homestead and exempt property from the $75,000 calculation.
- Complete the Small Estate Affidavit used in the county of residence. Many counties accept the Texas Law Help form. Some large counties publish a local packet that must be used instead.
- All distributees and two disinterested witnesses sign. Most clerks expect notarized signatures.
- File with the county court that handles probate. Pay the clerk's fee. Fees vary. Some counties charge a small filing fee.
- The judge examines the affidavit. If it is approved, buy certified copies.
- Deliver certified copies to banks, the Texas Department of Motor Vehicles, and other holders. If a homestead is included, record the affidavit in the deed records.
Common mistakes that cause rejection
Filing before 30 days. Using the procedure when there is a will. Omitting an heir. Counting the homestead inside the $75,000 cap. Listing land other than the homestead. Skipping a disinterested witness. Leaving the asset and debt tables incomplete. Using a generic form when the local judge requires a county packet. These are the errors clerks and judges cite most often.
How long the process takes
The statute forces a 30 day wait. After filing, approval is a local matter. Quiet files in smaller counties can be signed in a couple of weeks. Busy urban courts often take a month or more, especially if the clerk sends the affidavit back for corrections.
Build in time to gather a certified death certificate, account printouts, vehicle titles, and a simple list of known bills. Families who walk in with a complete packet spend less time in the clerk line. After the judge signs, banks and the Texas Department of Motor Vehicles still run their own review. Plan on a few more days to a few more weeks before money or a title actually moves.
What happens if the estate is too large to qualify
If the nonexempt assets exceed $75,000, or if there is a will, or if there is real property besides the homestead, this affidavit is the wrong tool. Families then look at a muniment of title, a determination of heirship, or a full administration. Those paths need a licensed Texas attorney in most counties. This site will tell you when the shortcut does not fit rather than selling you a packet that the court will refuse.
A will that was never offered for probate does not become a Chapter 205 case. If someone already opened an administration, stop and speak with that lawyer or the court. If the only problem is a house that is not the homestead, or land in more than one county, use a different title path. The free check on this site is meant to catch those facts before you pay.