Texas Small Estate Affidavit: Who Qualifies, the $75,000 Limit and How to File

When someone dies in Texas without a will and leaves a modest estate, the family can often skip a full administration. The Texas small estate affidavit lets the heirs collect bank accounts, vehicles and other property with a sworn statement approved by the probate judge, without appointing an administrator. This guide covers who qualifies, what counts toward the $75,000 limit, who must sign, the filing steps and what an approved affidavit does and does not do.

Who can use a Texas small estate affidavit

Chapter 205 of the Texas Estates Code sets the conditions. All of them must be met:

Approval is not automatic: the statute says the judge may approve an affidavit that conforms to the chapter. Local courts also add their own rules. Tarrant County's 2026 instructions say the affidavit cannot be used to leave out an heir, or where an heir is under 18 or incapacitated, even though § 205.002 lets a guardian or next of kin swear for a minor distributee. Read your county court's instructions before you draft anything.

What counts toward the $75,000

The limit applies to the estate's assets excluding the homestead and exempt property. Under § 205.009, those two terms cover only property that could be set aside for the family under § 353.051 if the estate were being administered. That set-aside protects a surviving spouse and minor children, and for some exempt property, unmarried adult children living at home or an incapacitated adult child. Everything else counts: bank balances, non-exempt personal property and money owed to the person who died. A vehicle can be exempt property for a qualifying family, otherwise it counts.

This has a practical consequence. If there is no surviving spouse or minor child, the house is generally not an excluded homestead: it counts toward the $75,000 and cannot pass by the affidavit. Tarrant County's instructions say so directly.

The asset list must show which assets you claim as exempt (§ 205.002(b)).

Assets that pass outside the estate, such as accounts with a named beneficiary or property held with a right of survivorship, are not estate assets and are not transferred by the affidavit.

The statute measures the value on the date of the affidavit. Tarrant County's packet is inconsistent on this point (its instructions mention the date of death, its form the affidavit date), so check with the clerk. Courts expect each asset to be identified precisely: Tarrant County asks for the last four digits of account numbers, or the address and legal description for real estate, with a value and, for a married decedent, whether it is separate or community property.

The homestead and other real estate

The affidavit can pass title to only one kind of real estate: the homestead, and only where it is the estate's only real property (§ 205.006). The approved affidavit must then be recorded in the deed records of the county where the home is located. Because the homestead is defined by reference to the family set-aside, Dallas and Tarrant counties both treat it as passing only to a surviving spouse or minor child, and the standard order form on TexasLawHelp refers to a home that was the homestead of both the decedent and the heirs on the date of death.

Any other land, such as a second house or a lot, cannot pass this way (§ 205.008). That estate needs a different route.

Who signs the affidavit

• Every distributee with legal capacity, meaning each heir entitled to a share under Texas intestacy law.
• Two disinterested witnesses. Tarrant County asks for witnesses with personal knowledge of the family history, and Dallas County requires each witness to state that they have no interest in the estate and are not related to the decedent under the intestacy rules.
• A notary: each signer swears before a notary, and Tarrant County requires each one to appear in person.

The affidavit must list all known assets and liabilities, the name and address of each distributee, and the family history facts showing why each person inherits (§ 205.002). County forms spell out what that means: marriages, divorces, births and deaths of children, children of a child who died and, where relevant, parents and siblings.

Filing a Texas small estate affidavit, step by step

1. Wait 30 days after the death and confirm no one has applied to be administrator.
2. Get the death certificate. Tarrant County asks for a redacted copy filed with the affidavit.
3. List assets and debts with values on the affidavit date, including funeral bills and any attorney fees paid from estate money.
4. Check Medicaid. Tarrant and Dallas counties ask whether the person received Medicaid on or after March 1, 2005. If so, any Medicaid Estate Recovery Program (MERP) claim is listed as a debt, or the file shows that no claim will be made, for example with a MERP certificate.
5. Complete the heirship section and the share each heir takes.
6. Sign before a notary, with all distributees and both witnesses.
7. File with the county clerk of the court in the county where the person lived (Tarrant County requires a permanent residence there), with the proposed order form the court uses. Fees are set locally: Tarrant County's 2026 packet lists $404, including one certified copy.
8. Wait for the judge's order. Tarrant County's packet mentions no hearing; the judge reviews the papers and signs or refuses the order. Its fee includes a posted citation, so allow time for that notice.
9. Order certified copies and give one to each bank, transfer agent or other holder of estate property (§ 205.004).
10. Record the affidavit in the deed records if it transfers the homestead (§ 205.006).

What approval does and does not do

A bank or other holder that pays or transfers property on the strength of the affidavit is released as if it had dealt with a court-appointed representative, and it does not have to check the facts sworn in it (§ 205.007). The protection runs one way. Each person who signed the affidavit is liable for any loss caused by relying on it, and heirs who receive property remain answerable to anyone with a prior right and to any administrator appointed later. If a holder refuses to release property, the heirs can sue to recover it.

The approval order does not judicially determine the heirs, decide whether property is separate or community, cut off the rights of creditors or heirs left out, transfer property missing from the affidavit or transfer real estate other than the homestead. An error in the family history is the most expensive mistake, so build the heirship facts carefully.

When the affidavit is not the right route

• There is a will. Chapter 205 applies only without a will. A will with no unpaid debts, other than debts secured by real estate liens, can often be probated as a muniment of title, normally within four years of death (§§ 257.001, 257.054), with a late filing possible only where the applicant was not in default (§ 256.003).
• The estate is over $75,000, or includes real estate other than the homestead. A determination of heirship or an administration is usually needed. See our Texas probate checklist for the routes and deadlines.

Frequently asked questions

How long after a death can a Texas small estate affidavit be filed? No earlier than 30 days after the death, and only while no petition for an administrator is pending or granted.

Does the $75,000 include the house? Not if it is a homestead that could be set aside for a surviving spouse or minor child. Without such a family member, the house generally counts toward the limit and cannot pass by the affidavit.

Can the affidavit be used if there is a will? No. Chapter 205 is for people who died without a will. With a will, the usual low-cost route is probate as a muniment of title.

The Steady Executor Texas kit organises this work in five files: a user guide to routes, deadlines and steps, an executor workbook that records assets, debts and distributions and calculates due dates from your dates, financial letters for banks, insurers, retirement plans and creditors, services and agencies letters for utilities, credit bureaus, employers and government offices, and beneficiary letters with a receipt form for distributions.

Sources

• Texas Estates Code ch. 205 (Small Estate Affidavit)
• Texas Estates Code ch. 353 (Exempt Property and Family Allowance)
• Texas Estates Code ch. 257 (Probate of Will as Muniment of Title)
• Texas Estates Code ch. 256 (Probate of Wills Generally)
• Tarrant County Probate Courts: Small Estate Affidavit packet (2026)
• Dallas County Probate Courts: Small Estate Affidavit required form
• TexasLawHelp: Order Approving Small Estate Affidavit
• Texas Property Code ch. 42 (Personal Property)