Last verified 2026-10-24; facts checked against the primary sources below
Texas small estate affidavit: requirements, the $75,000 limit, and the no-will rule
Last verified: October 24, 2026
The short answer: A Texas small estate affidavit works only when the person died without a will, at least 30 days have passed, no one has asked the court to appoint an executor or administrator, and the estate is worth $75,000 or less, not counting the homestead and exempt property (Texas Estates Code § 205.001). It is not a form you hand to the bank. It is filed with the court, and a judge must approve it (§ 205.001, § 205.003). If there was a will, this path is closed.
Requirements at a glance
| Requirement | What the law says | Source |
|---|---|---|
| Will | Only for a person who "dies intestate," meaning without a will | § 205.001 |
| Waiting period | 30 days must have passed since the death | § 205.001(1) |
| No other case | No petition to appoint a personal representative is pending or has been granted | § 205.001(2) |
| Value limit | Estate assets on the date of the affidavit, excluding homestead and exempt property, of $75,000 or less | § 205.001(3) |
| Debts | Heirs take only to the extent assets (excluding homestead and exempt property) exceed known debts (excluding debts secured by them) | § 205.001 |
| Where it is filed | With the clerk of the court that has jurisdiction and venue of the estate | § 205.001(4) |
| Approval | The judge examines it and may approve it if it meets the chapter's requirements | § 205.003 |
| Who signs | Two disinterested witnesses, every heir with legal capacity, and, where needed, a guardian or next of kin for a minor or incapacitated heir | § 205.002(a)(1) |
Section 205.001 was last amended effective September 1, 2017, and the official code shows no later change to the $75,000 limit as of October 24, 2026 (§ 205.001 history note).
What goes in the affidavit
The statute requires the affidavit to include (§ 205.002):
| Item | Detail |
|---|---|
| Assets and debts | A list of all known estate assets and liabilities, marking which assets are claimed as exempt |
| Heirs | The name and address of each heir |
| Family history | The facts about the family that show each heir's right to inherit |
| The conditions | Facts showing the 30-day wait, no pending case, and the $75,000 limit are met |
Courts can add their own requirements. Fort Bend County's courts, for example, require their own form, will not accept any asset listed at "unknown value," and ask whether the person received Medicaid on or after March 1, 2005, because the state may have a claim (Fort Bend County Courts at Law checklist). Check the website of the county court where the person lived before you file.
What the affidavit can and cannot transfer
| Property | Can the affidavit transfer it? | Source |
|---|---|---|
| Bank accounts, vehicles and other personal property | Yes. The heirs give a court-certified copy to each bank, debtor or transfer agent holding estate property | § 205.004 |
| The homestead, when it is the only real property in the estate | Yes, and the affidavit must be recorded in the deed records of the county where the home is | § 205.006 |
| Any other real estate | No | § 205.008(b) |
| Property left by a will | No. The chapter does not affect property passing under a will | § 205.008(a) |
"Homestead" and "exempt property" here mean only property that could be set aside for the family under Estates Code § 353.051 if the estate were being administered (§ 205.009). Fort Bend County's courts add that a homestead passes by affidavit only to an heir who lived there with the person who died, such as a spouse or unmarried child (Fort Bend County checklist).
Who is protected, and who is on the hook
| Person | Rule | Source |
|---|---|---|
| A bank or company that pays on the approved affidavit | Released as if it had paid an executor; it need not check the facts | § 205.007(a) |
| Heirs who receive the property | Answerable to anyone with a prior right, and to any executor or administrator appointed later | § 205.007(b) |
| Everyone who signed the affidavit | Liable for loss caused by a payment made relying on it | § 205.007(c) |
| A holder who refuses to pay on it | The heirs can sue to recover the property | § 205.007(d) |
If there was a will
The small estate affidavit cannot be used. One alternative Texas law offers is probating the will as a "muniment of title," which a court may allow when the estate owes no unpaid debt other than debt secured by a lien on real estate, or when it finds no other need for administration (Texas Estates Code § 257.001). Whether it fits a given estate is a question for a Texas probate lawyer.
Common reasons affidavits are denied
Fort Bend County's courts say many affidavits are denied for problems that cannot be fixed, and that the filing fee is lost when that happens (Fort Bend County checklist). The checklist names these:
- The person left a will.
- It was filed within 30 days of the death.
- Not every asset and debt is listed, or values are missing.
- Debts are larger than the assets that count.
- The heirs and their shares do not match Texas inheritance law.
For how banks handle accounts while this is sorted out, see can a bank freeze an account after death. If the person lived in California instead, the rules are different: see the California small estate affidavit guide.
This is general information about Texas law, not legal advice. A Texas probate lawyer or the county court's self-help resources can tell you whether your situation qualifies.
The Estate Desk helps families settle estates. theestatedesk.com