Texas Small Estate Affidavit: Step-by-Step Process (2026)

If someone died in Texas without a will and the non-exempt assets are $75,000 or less, the estate may be able to use a small estate affidavit instead of a full probate administration. This guide explains the general steps.

Who May Qualify

The small estate affidavit (Texas Estates Code Chapter 205) may be available if:

• The decedent died without a will
• Non-exempt assets total $75,000 or less (the homestead and other exempt property are not counted)
• At least 30 days have passed since death
• No petition for appointment of a personal representative is pending or has been granted
• The assets exceed the known liabilities

Timeline: 30-Day Wait, Then a Court Filing

Day 0: Death occurs.

Day 30 or later: The affidavit can be filed (filing a day later avoids any counting dispute) with the court clerk. A judge must approve it. Timing after filing depends on the court.

Step-by-Step Process

Step 1: Wait 30 Days

Texas requires 30 days to pass after death. The affidavit procedure cannot be used before then.

Step 2: Gather Documents

• Certified death certificates (ask each institution how many it needs)
• Asset list with values
• Liabilities list
• Names, addresses, and family relationship of each distributee
• Identification for each person signing

Step 3: Determine Distribution

Because there is no will, Texas intestacy law decides who receives the estate. The result depends on whether the decedent had a spouse, children, parents, or siblings and whether property is community or separate. A summary: the surviving spouse and children often share, and the rules change if any of those are missing. Ask the court clerk or an attorney if the family situation is not simple.

Step 4: Prepare the Affidavit

The affidavit must show that the conditions in the statute are met and include:

• A list of all known assets and liabilities, marking any asset claimed as exempt
• The name and address of each distributee
• Family history showing each distributee's right to receive property

It is sworn to by two disinterested witnesses and by each distributee with legal capacity, plus the guardian or next of kin of a minor or incapacitated distributee (Estates Code Section 205.002). The affidavit cannot transfer real property other than a homestead that is the only real property (Sections 205.006 and 205.008(b)).

Step 5: File With the Court Clerk

File the sworn affidavit with the clerk of the court that has jurisdiction over the estate. Ask the clerk for the county's forms and filing fee. A judge examines the affidavit and may approve it.

Step 6: Send Required Copies and Collect Property

After approval, provide clerk-certified copies to debtors, holders and transfer agents as Section 205.004 requires. Then present the approved affidavit to each bank, brokerage, or other asset holder. People who pay or deliver property in reliance on the affidavit are generally protected, and each signer is liable for any loss arising from a payment made in reliance on the affidavit (Section 205.007(c)).

Step 7: Keep Records

Keep receipts for each transfer and copies of everything filed.

Cost

Item	Cost
Court filing fee	Varies by county
Death certificates (10)	$150 - $250
Notary fees	$10 - $30
Document copies	$20 - $50
Postage and misc.	$30 - $50

This is generally far less than full probate with attorney fees ($5,000 - $15,000+; typical; varies by county).

Common Mistakes to Avoid

• Using the affidavit when there is a will
• Filing before 30 days have passed
• Counting exempt property or homestead toward the $75,000 limit, or leaving out assets that count
• Not listing all known liabilities and distributees
• Not ordering enough death certificates upfront

Unsure Which Route Applies?

Use our free small estate eligibility checker to see the route that usually applies to the numbers you enter.

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Disclaimer: ExecutorBench is self-help software. It is not a law firm, it does not give legal advice, and it is not a substitute for the advice of an attorney. Using it does not create an attorney-client relationship, and what you enter is not protected by attorney-client privilege. For specific questions about Texas small estate procedures, consult an attorney licensed in Texas.