The Texas Small Estate Affidavit

Short answer

A Texas small estate affidavit is a sworn filing that lets the heirs of a person who died without a will collect certain property without anyone being appointed to run the estate. It works only if every condition in Estates Code section 205.001 is met and a judge approves it. The statute calls the heirs distributees. This guide says heirs.

Eligibility checklist

All of these must be true.

• No will. The person died intestate, meaning without a will (section 205.001).
• 30 days. At least 30 days have passed since the death (section 205.001(1)).
• No personal representative. No petition to appoint a personal representative is pending or has been granted (section 205.001(2)).
• Value limit. On the date of the affidavit, estate assets, not counting qualifying homestead and exempt property, are worth $75,000 or less (section 205.001(3)).
• Assets cover debts. Heirs take only to the extent those assets, leaving out homestead and exempt property, exceed the known debts, leaving out debts secured by homestead and exempt property (opening clause of section 205.001).
• Right signatures and filing. The affidavit meets section 205.002 and is filed with the clerk of the court that has jurisdiction and venue of the estate (section 205.001(4)).
• Judge approval. The judge approves it under section 205.003 (section 205.001(5)).
• Certified copies delivered. The heirs give clerk-certified copies to those who hold estate property or owe the estate money (sections 205.001(6) and 205.004).

Common disqualifiers

• The person left a will (section 205.008(a)).
• A petition to appoint a personal representative for the estate is pending or has been granted.
• The counted assets are over $75,000.
• Known debts are larger than the counted assets.
• The goal is to transfer land other than a homestead that is the estate's only real property (sections 205.006 and 205.008(b)).
• A required person cannot or will not swear to the affidavit.

Homestead and exempt property: what the value test leaves out

It is not true that any house is simply left out of the count. The exclusion is narrower.

Not every house or household item qualifies for the exclusions. Section 205.009 uses property eligible under section 353.051. Under that section, the homestead is set aside for the surviving spouse and minor children. Other exempt property can also benefit unmarried adult children who remain with the family and adult children who are incapacitated. A house inherited only by independent adult children is not automatically an excluded homestead. These survivor requirements matter before you calculate the $75,000 limit or try to transfer a house.

Two more points about the count. The value date is the date of the affidavit, not the date of death. And section 205.002(b) requires the asset list to show which assets are claimed as exempt.

Transferring title to a homestead

Leaving property out of the value test is different from transferring its title. Section 205.008(b) says chapter 205 does not transfer title to real property, except under section 205.006. Section 205.006(a) allows title to a homestead to pass only if that homestead is the only real property in the estate. The affidavit used must then be recorded in the deed records of a county where the homestead is located. That recording is a separate step from filing with the court clerk.

Under section 205.006(b), a good-faith buyer who pays value may rely on a recorded affidavit. A buyer without actual or constructive notice of an heir left out of the affidavit takes the homestead free of that heir's interest, but still subject to any claim a creditor of the deceased person has by law. Section 205.006(c) lets the left-out heir recover from an heir who received payment from the buyer.

Step by step

1. Gather the facts

   List every known asset and debt, the name and address of each heir, and the family history that shows who inherits. Section 205.002(a)(3) requires all of this in the affidavit. The guide to who inherits when there is no will explains how heirs are identified.

2. Check the court's current requirements and forms

   The Texas State Law Library's guide to informal probate methods has a Small Estate Affidavit section that links sample forms and some county materials. The library notes that courts often have specific rules about small estate affidavits. Confirm the current checklist or form with the clerk of the court where you will file.

3. Get the required signatures

   Under section 205.002(a)(1), the affidavit must be sworn to by two disinterested witnesses, by each heir who has legal capacity, and, if the facts call for it, by the natural guardian or next of kin of a minor heir or the guardian of another incapacitated heir. The witnesses are in addition to the heirs.

4. File with the right clerk

   File it with the clerk of the court that has jurisdiction and venue of the estate (section 205.001(4)).

5. Wait for the judge's decision

   Section 205.003 says the judge shall examine the affidavit and may approve it if it conforms to chapter 205. Approval is not automatic.

6. Get certified copies and deliver them

   Section 205.004 requires the heirs to give a clerk-certified copy to each person who owes the estate money, holds estate property, or acts as a registrar, fiduciary, or transfer agent for estate property. If a homestead passes under section 205.006, record the affidavit in the county deed records too.

The library's summary and the statute

The State Law Library's page lists the conditions in plain terms. Some of its shorthand, such as "all the heirs agree," is broader than the statute's wording. The statute's actual rule is that each heir with legal capacity must swear to the affidavit. Where a summary and the statute differ, follow the statute.

After approval: who is protected and who is liable

Section 205.007(a) protects a person who pays or hands over property under the affidavit to the same extent as a payment to a personal representative. That person does not have to check how the affidavit is used or whether its statements are true.

The risk sits with the heirs and signers. Under section 205.007(b), heirs who receive property must answer to anyone with a prior right and account to a personal representative appointed later. Under section 205.007(c), each person who signed the affidavit is liable for any loss caused by a transfer made in reliance on it. If a holder refuses to hand over property, section 205.007(d) allows the heirs entitled to it to sue to recover it.

Small estate affidavit compared with an affidavit of heirship

The two are often confused. The table below uses the statute for the small estate affidavit and the State Law Library's description for the affidavit of heirship.

The library also lists other informal routes, such as a determination of heirship. Which route fits depends on the estate. When the counted assets exceed the limit or a condition fails, the Texas probate process is the usual alternative. The Texas probate and inheritance guides cover those options, alongside every other subject in the full guide library.