Texas Small Estate Affidavit (2026): $75,000 Limit, Judge Approval & County Forms

The Texas small estate affidavit is the state’s shortcut for settling a modest estate without appointing an executor or administrator. It is also the most court-involved version of the shortcut in our 50-state table. In most states an heir signs the affidavit and carries it to the bank. In Texas it goes to the probate court first, and a judge has to sign off.

For the right family the extra step pays off. You walk out with a certified document that a bank can pay on without second-guessing you, and sometimes it moves the house as well. We’ll start with who qualifies. Then comes the $75,000 cap, which measures less than you’d think, followed by the filing itself and the fallbacks for when it won’t fit. Most of the rules here come from Chapter 205 of the Texas Estates Code; the exemptions come from Estates Code Section 353.051 and Property Code Chapter 42.

Who can use a Texas small estate affidavit: 6 conditions

Heirs (the statute’s word is distributees) can collect under Section 205.001 without anyone being appointed. All six boxes have to be checked, though:

1. The person died without a will. The statute applies to a decedent “who dies intestate.” If there is a valid will, this affidavit is not available, even for a tiny estate.
2. At least 30 days have passed since the death.
3. No petition to appoint an administrator is pending or has been granted.
4. The estate is worth $75,000 or less on the affidavit date. The homestead and exempt property don’t count.
5. You file it with the clerk of the court that has jurisdiction over the estate, which is normally in the county where the person lived.
6. The judge approves it and the heirs then give certified copies to each person holding estate property.

A seventh condition sits inside the sixth. Counted assets have to exceed counted debts, and Section 205.001 leaves the homestead and exempt property, along with any debts secured by them, out of that comparison. An estate that owes more than it owns isn’t a candidate.

The $75,000 test: what’s in, what’s out

$75,000 sounds small, yet the test covers only a narrow slice of what the person owned: three categories stay out of the count.

1. The homestead

The family home stays out of the $75,000 no matter what it is worth. The catch: it has to be a homestead a court could set aside for a surviving spouse or minor children (Section 205.009 sends you to Section 353.051 for that test). Picture a surviving spouse with a paid-off $300,000 house and $40,000 in the bank. Only the $40,000 gets measured, so that estate passes the dollar test. Grown children who lived elsewhere are a different story: if they are the only heirs, the house doesn’t get this carve-out.

2. Exempt property

Texas also leaves out “exempt property,” the personal property the law protects from creditors. The Property Code protects household furnishings, tools and equipment of a trade, one vehicle for each licensed family member and certain other items. The cap is an aggregate value of $100,000 for a family or $50,000 for a single adult. Your asset list has to flag each item you claim as exempt (Section 205.002(b)). And since what qualifies can depend on who survives the person, take your time with that list.

3. Assets that pass outside the estate

In Texas, anything with its own built-in transfer stays out of the count: life insurance and retirement accounts with a living beneficiary, payable-on-death accounts, survivorship accounts, and property already in a living trust. Leave them off your list of counted assets.

What does count: bank accounts in the person’s sole name without a beneficiary, non-exempt vehicles, investment accounts without a transfer-on-death designation, and valuables beyond the exemption limits.

Who signs: every heir plus 2 disinterested witnesses

Section 205.002 requires the affidavit to be sworn to by three groups:

• Two disinterested witnesses: people with no stake in the estate. Your county’s form may say more about who qualifies, so ask the clerk.
• Each heir who has legal capacity. Every adult heir signs, not one stand-in for the group.
• A guardian or next of kin signs for a minor or incapacitated heir, if there is one.

The form wants every known asset and debt. It wants each heir’s name and address too. Then comes the family history, and that part carries real weight. Texas intestacy rules change with a marriage, with children from an earlier relationship and with community property. Those answers decide who gets what. If the family facts are messy, a Texas lawyer can tell you whether a court determination of heirship is the better fit. And if any heir is a minor, ask the clerk before you start, because some courts will not approve the affidavit in that case.

How to file: the court step, the fee and the county form

Texas probate filings are local, and so is the small estate affidavit.

1. Get the county’s own form. Dallas County, for one, publishes its own required small estate affidavit form, and many other counties post forms or checklists. Look on the clerk’s or probate court’s website for the county where the person lived.
2. Wait 30 days from the date of death, then have every heir and both witnesses swear to the affidavit. Dallas County’s page says the filing must be signed and notarized, so plan on a notary.
3. File with the clerk of the court that has jurisdiction over the estate (in Dallas County, the County Clerk’s probate division), with a death certificate and the filing fee. Dallas County lists $360 for small estates. TexasLawHelp says the typical fee is a few hundred dollars, so confirm your own county’s amount before you go. Money tight? The clerk can tell you whether the court offers fee relief.
4. A judge reviews it. Under Section 205.003 the judge may approve the affidavit if it conforms to Chapter 205. Hearings vary by county, so ask the clerk whether yours holds one.
5. Get certified copies from the clerk. Section 205.004 requires the heirs to give a certified copy to each bank, company or agency holding estate property.
6. Record it in the deed records if it transfers the homestead (see below).

Once approved, the affidavit becomes a local government record (Section 205.005), and institutions that pay out in reliance on it are protected. That protection gives a bank little reason to refuse an approved affidavit.

Before you sign: check for Medicaid estate recovery

If the person received Medicaid long-term care, the state may have a claim against the estate. HHSC says it may file a claim against the estate of a deceased Medicaid recipient who was 55 or older when the services were received and first applied for certain long-term care services on or after March 1, 2005. That claim is a debt, so it goes on the liability list.

Dallas County’s required form makes you check a box for this. Either the person did not receive Medicaid on or after March 1, 2005, or did and any Medicaid Estate Recovery Program (MERP) claim is listed as a debt, or did but no claim exists. In that last case you file a MERP certification or add information showing no claim will be filed. HHSC says you find out whether MERP has a claim by sending its Authorization and MERP Certification form to the state’s estate recovery contractor. Other counties’ forms may ask the same thing, so ask the clerk. MERP cannot collect more than the estate is worth, and family members are not required to pay from their own pockets.

Passing the homestead with the affidavit

Texas lets its affidavit move real estate, but only one kind. Section 205.006 allows it only when the homestead is the only real property in the estate. In practice that means a home going to a surviving spouse or minor child, and Dallas County’s form says so outright. After approval you record the affidavit in the deed records of the county where the house sits. Don’t skip that part. TexasLawHelp, a legal-aid site, reads the rules more strictly. It lists owning no other real property as a condition for using the affidavit at all. If the person left other land, ask the clerk before you count on this route.

Two limits matter. First, other real estate (a rental house, a lot, mineral interests) is not covered. Section 205.008 says the chapter doesn’t transfer title to it, so the family needs another route for that property. Second, a buyer acting in good faith can rely on the recorded affidavit. An heir who was left off may lose the claim against that buyer and have to chase the heir who sold. That is why the family history has to be right.

When there is a will or the estate is too big

Texas offers other paths when the affidavit does not fit.

• Muniment of title: if there is a valid will and the only unpaid debts are secured by real estate, a court can admit the will to probate as a muniment of title. The order gives banks and others legal authority to pay or transfer the property without administration, so no executor is appointed (Section 257.102). With a small estate and a will, it is the first option to ask the clerk about.
• Affidavit of heirship: Own land beyond the homestead? Heirs often record an affidavit of heirship in the deed records for it. It does not require court approval. It is evidence of who the heirs are, and by statute it carries prima facie weight only after it has been of record in the deed records for five years (Section 203.001), so a title company may ask for more before then. See our affidavit of heirship template.
• Determination of heirship: a judge formally declares who the heirs are. That settles disputed or complicated family facts.
• Independent administration: Full probate, Texas style. It is a less court-supervised form of administration (Estates Code Chapter 401), but it still means an application and an appointed executor or administrator.

If you are budgeting for one of these, our probate cost estimator breaks down court and executor costs.

Liability: what you are promising when you sign

The affidavit shifts risk from the institutions to the family. Under Section 205.007, a bank that pays out on an approved affidavit is released as if it had paid a court-appointed representative, and it does not have to check whether the statements are true. Heirs who take property still answer to anyone with a better right to it. Every signer, too, can be liable for losses from a payout made in reliance on the affidavit.

If a signer leaves out an heir or a known debt, the signers can end up paying for it. And if a bank refuses to honor an approved affidavit, the heirs can sue to recover the property.

How does Texas stack up against other states?

At $75,000, Texas lands right on the median of the state limits in our table. What sets it apart is elsewhere:

• In our table it is the only state where the affidavit itself goes to a judge for approval: 28 jurisdictions use the affidavit alone, 11 want a filing with a court office, and 11 use a short court petition.
• It works only for estates without a will, so a will points you to a muniment of title or full probate.
• Its homestead and exempt-property carve-outs can let a surviving spouse with a paid-off home and a car still pass the dollar test.

For comparison, California allows $208,850 with no court filing, while Florida uses a court petition process called summary administration up to $150,000. The full comparison is in our small estate affidavit limits by state table. Want the general steps that apply in most states? Our small estate affidavit template guide walks through them.

Frequently Asked Questions

Does a will rule out a small estate affidavit in Texas?

Yes. The affidavit is for someone who died intestate, meaning without a valid will (Section 205.001). If there is a will and the only debts are secured by real estate, ask the probate court about a muniment of title. The court admits the will, and its order lets banks and others transfer the property without anyone being appointed executor.

How much does a Texas small estate affidavit cost?

Every Texas county charges a filing fee. TexasLawHelp says the typical amount runs to a few hundred dollars. Dallas County lists $360, due at filing. Ask the clerk about certified-copy charges and, if the affidavit passes the homestead, recording charges in the deed records. If the fee is a real hardship, ask the clerk what fee relief the court offers.

Does the house count toward the $75,000 limit in Texas?

Not if it is a homestead that would be set aside for a surviving spouse or minor children. That homestead and exempt personal property are excluded from the $75,000 calculation. The affidavit can also transfer the homestead, as long as it is the only real property in the estate, by recording the approved affidavit in the county deed records.

Who are the two disinterested witnesses?

They are two people with no stake in the estate, meaning they will not inherit anything from it. The statute has them swear to the affidavit alongside the heirs (Section 205.002). A friend or neighbor with no claim to the property may fit; ask the clerk if your county’s form says more about who qualifies.

How long does approval take in Texas?

Chapter 205 gives the judge no deadline. The judge reviews the filing and can approve it once it meets Chapter 205. Whether you’ll see a hearing depends on the county, so ask the clerk. Before you file, make sure the affidavit lists every known asset and debt, each heir’s name and address, and the family history.

Can the affidavit transfer a car in Texas?

Yes. A car is personal property, so it goes on the asset list. The TxDMV Motor Vehicle Title Manual says a clerk-certified copy of the approved affidavit must accompany the title application, so ask your county tax office what else it needs. The car may also be exempt property, which stays out of the $75,000 count.

ClearLegalTips

ClearLegalTips is an independent publisher of plain-English legal guides, free document templates, and cost calculators for common U.S. legal tasks. Every article is reviewed by founder and editor Fatih Öztürk and fact-checked against official sources: statutes, court fee schedules, and government filing pages. Not a law firm; nothing here is legal advice.