When someone dies without a will and leaves a modest estate, Texas allows the family to collect and distribute the property with a sworn statement approved by the court, instead of a full probate administration. It is called a small estate affidavit.
Who can use it
Generally, all of the following must be true:
- The person died without a will.
- At least 30 days have passed since the death.
- No petition for an administration is pending or has been granted.
- The estate's property, not counting the homestead and exempt property, is worth $75,000 or less.
- The known assets exceed the known debts, not counting debts secured by the homestead or exempt property.
The homestead rule catches people
A small estate affidavit can pass the family homestead, but only to the heirs entitled to it under Texas law — and it cannot be used to transfer other real estate, such as a rental house, a lake lot or inherited land. If the person owned real property other than a homestead, a different procedure is usually needed.
What goes into the affidavit
- A list of all known assets and debts.
- The names and addresses of the heirs and their relationship to the person who died.
- The family history facts that establish heirship: marriages, children, and so on.
- Signatures of the distributees and two disinterested witnesses who knew the family.
The affidavit is filed with the probate court in the county where the person lived. If the judge approves it, certified copies can be given to banks and others holding property, and they may release it to the heirs.
The affidavit looks simple, but judges scrutinize it. Common reasons for rejection: an incomplete family history, missing heirs, witnesses who are not disinterested, and real estate that does not qualify. A rejected affidavit costs time. Getting the heirship facts right the first time is most of the work.
If the small estate affidavit doesn't fit
- There is a will
- Consider a muniment of title or independent administration.
- Over $75,000, or non-homestead real estate
- A determination of heirship, often with an independent administration.
- Only real estate, no will, years later
- A determination of heirship, which also establishes who owns the property of record.
Common questions
Does a car need a small estate affidavit?
Often not. The Texas Department of Motor Vehicles has its own heirship affidavit process for vehicles in many situations.
Do accounts with a named beneficiary count toward $75,000?
No. Accounts with payable-on-death or beneficiary designations pass directly to the named person and are not part of the probate estate.
This guide is general information about Texas law as of September 2026, not legal advice for your situation. Laws and dollar figures change, and small facts change outcomes. Reading it does not create an attorney-client relationship. Grover C. Peters III is responsible for this content.