TX · County Court at Law / Statutory Probate Court
Texas
Personal property
$75,000
statutory cap
30-day wait
Excludes homestead and exempt property.
Who is eligible to file
The Texas small estate affidavit is only for a decedent who died without a will (Tex. Est. Code § 205.001). Each distributee of the estate who has legal capacity, as an heir or assignee, swears to it together with two disinterested witnesses (§ 205.002). Distributees can include:
- Surviving spouse
- Children, and the descendants of a child who died before the decedent
- Parents, siblings and other kindred, in the order set by Texas intestate succession (Estates Code ch. 201)
- For a minor or incapacitated distributee, the natural guardian, next of kin or guardian swears to it, where the facts warrant
If the decedent left a will, the small estate affidavit is not available. The will goes through probate, or the court may admit it to probate as a muniment of title when the estate owes no unpaid debt other than debt secured by a lien on real estate, or there is otherwise no need for administration. See Tex. Est. Code ch. 205; Tex. Est. Code ch. 257.
What counts toward the threshold
The threshold counts only assets that pass through probate. The following do not count against the cap:
Joint tenancy property
Passes by right of survivorship.
Community property w/ ROS
Vests in surviving spouse.
Beneficiary-designated
Life insurance, IRAs, 401(k)s.
TOD / POD accounts
Bank, brokerage, vehicle titles.
Living trust assets
Distributed by the trust, not the will.
Wages owed to surviving spouse
Often a separate path.
State note: Excludes homestead and exempt property.
Real property
Homestead and exempt property are excluded from the $75K cap. The affidavit can transfer title to the homestead only when the homestead is the only real property in the estate, and it must then be recorded in the deed records of the county where the homestead is located (§ 205.006). Otherwise the affidavit does not transfer title to real property (§ 205.008).
Where to file
File with the County Court at Law / Statutory Probate Court in the county where the decedent resided at death.
We do not maintain a county-by-county directory. The Texas judicial system operates an authoritative court locator.
Find your county’s County Court at Law / Statutory Probate Court via the Texas judicial council website. Search for “Texas County Court at Law / Statutory Probate Court county locator” or visit the state government court directory.
Form & statute
Form
- Small Estate Affidavit
Statute