Texas Small Estate Affidavit

Updated August 3, 2026. Quick answer: Texas lets the heirs of a small estate collect it without opening a probate administration, using a court-approved small estate affidavit. Two limits decide whether it is available to you, and both are routinely dropped from summaries: it is only for someone who died without a will, and the $75,000 ceiling excludes the homestead and exempt property — so estates that look far too large on paper often still qualify.

The statute

The distributees of the estate of a decedent who dies intestate are entitled to the decedent’s estate without waiting for the appointment of a personal representative of the estate to the extent the estate assets, excluding homestead and exempt property, exceed the known liabilities of the estate, excluding any liabilities secured by homestead and exempt property, if: (1) 30 days have elapsed since the date of the decedent’s death; (2) no petition for the appointment of a personal representative is pending or has been granted; (3) the value of the estate assets on the date of the affidavit…, excluding homestead and exempt property, does not exceed $75,000; (4) an affidavit that meets the requirements of Section 205.002 is filed with the clerk of the court that has jurisdiction and venue of the estate; (5) the judge approves the affidavit as provided by Section 205.003; and (6) the distributees comply with Section 205.004.

— Tex. Est. Code §205.001

The two limits people get wrong

1. Intestate only. The section opens with “a decedent who dies intestate“. If there is a will, this procedure is not available at all — Texas has separate routes for a will, including probating a will as a muniment of title. No amount of smallness makes the affidavit work where a will exists.

2. The $75,000 is not the whole estate. It is the value of estate assets excluding homestead and exempt property. In Texas the homestead exemption is substantial and exempt personal property is a real category, so a family home does not by itself put an estate over the line. Reading the figure as a total-estate cap is the most common way people wrongly conclude they do not qualify.

Note also the framing at the top of the section: the assets, excluding homestead and exempt property, must exceed the known liabilities excluding those secured by homestead and exempt property. An estate underwater on that measure does not qualify.

The six conditions, in order

1. 30 days have elapsed since the death.
2. No personal representative appointment is pending or has been granted.
3. Assets under $75,000, excluding homestead and exempt property, valued on the date of the affidavit.
4. An affidavit meeting section 205.002 is filed with the clerk of the court with jurisdiction and venue.
5. The judge approves it. This is the step that surprises people — unlike many states, a Texas small estate affidavit is not simply presented to a bank. It goes to a court and a judge approves it.
6. The distributees comply with section 205.004, which governs giving a copy of the affidavit to certain persons.

What the affidavit itself must contain

An affidavit filed under Section 205.001 must: (1) be sworn to by: (A) two disinterested witnesses; (B) each distributee of the estate who has legal capacity; and (C) if warranted by the facts, the natural guardian or next of kin of any minor distributee or the guardian of any other incapacitated distributee; (2) show the existence of the conditions prescribed by Sections 205.001(1), (2), and (3); and (3) include: (A) a list of all known estate assets and liabilities; (B) the name and address of each distributee; and (C) the relevant family history facts concerning heirship… (b) A list of all known estate assets under Subsection (a)(3)(A) must indicate which assets the applicant claims are exempt.

— Tex. Est. Code §205.002

The sworn-by requirement is the demanding part: two disinterested witnesses and every distributee with legal capacity, plus a guardian or next of kin where a distributee is a minor or incapacitated. “Disinterested” means someone who does not stand to inherit — finding two people who knew the family well enough to swear to the heirship facts but who take nothing from the estate is the practical bottleneck.

And the content requirement is heavier than a form suggests: all known assets and liabilities, every distributee’s name and address, and the family history facts that establish each person’s right to inherit. That last item is doing the work a court would otherwise do in determining heirship.

The asset list must also indicate which assets are claimed as exempt — which is the same carve-out that decides the $75,000 test.

What this does not do

• It does not transfer real property generally. Texas small estate affidavits have long-standing limits around real estate beyond the homestead; if land is involved, get advice before relying on this route.
• It does not bind a third party to hand assets over merely because it exists — the judge’s approval is what gives it force.
• It does not resolve disputes. Every capable distributee must swear to it, so a single disagreeing heir ends this route.

Honest gaps

We have quoted sections 205.001 and 205.002 in full. Sections 205.003 (examination and approval), 205.004 (copy to certain persons) and the real-property limitations are referenced by the statute and are not reproduced here — check them before filing. Court practice varies by county, and some clerks maintain their own required form. This is the statute, not legal advice, and an estate with real property, disputed heirship or unclear liabilities is one to take to a Texas probate lawyer.

Source note. The statutory text above was read from a published mirror of the Texas Estates Code. The state’s own statute site returns a page that does not carry the section text in a form we could verify, which is why this jurisdiction had been left unpublished until now.

Related: small estate limits by state.

General information drawn from state statutes and official state or court forms, not legal advice. These instruments are governed by the law of the state where the property sits or the document is signed, and formalities differ from state to state — execution, witnessing and recording requirements are the parts that void a document when they are missed. Your own state’s current statute governs.