Texas Guides / Inheritance
Small estate affidavit in Texas
Quick answer
If a family member died without a will and left a modest estate, the family may be able to use a small estate affidavit instead of a full probate. Texas law requires that 30 days have passed since the death, that the estate is worth no more than $75,000 (not counting the homestead and other exempt property), and that a judge approves the affidavit. Be careful with land: it can only transfer the home the person lived in, and only if that home was their only real estate. Separate land can't pass this way.
Who this guide is for
- Your parent or spouse died without a will and left modest assets: a bank account, a car, the home they lived in.
- You want to inherit without probate and need to know whether your family qualifies for a small estate affidavit.
- The house is still in your parent's name, and it was the only real estate they owned.
Not for you if…
- There is a will: this procedure doesn't apply if the person left one. See our probate guide.
- Your relative owned land, a lot or another house besides the home they lived in: a small estate affidavit can't transfer that land.
- The family disagrees, or the debts are larger than the assets.
When someone dies without a will and leaves little behind, families want to know how to inherit without probate. Texas has a shorter, cheaper path: the small estate affidavit. It works well for a bank account or a car. For land, it comes with a strict rule many families don't know about.
What a small estate affidavit is
It's a sworn document in which the family states what the person who died owned, what they owed and who their heirs are. It's filed with the probate court in the county where the person lived. Once a judge approves it, the heirs can collect and receive the property without the court appointing a personal representative.
It's simpler than a full probate, but it isn't just a paper you sign in front of a notary: a judge has to approve it.
| Small estate affidavit | Affidavit of heirship | Probate | |
|---|---|---|---|
| Is there a will? | There can't be | Used when there isn't | Yes, or the court appoints an administrator |
| Does a judge approve it? | Yes | No, it's recorded with the county | Yes |
| Does it pass land? | Only the homestead, if it's the only real estate | Documents who inherits the land | Yes |
| Value limit | $75,000, excluding homestead and exempt property | None | None |
For a closer comparison, see our guides to the affidavit of heirship and probate.
Who qualifies: what the statute requires
Texas Estates Code §205.001 requires every one of these conditions:
- No will. The person died intestate.
- 30 days have passed since the death.
- No administrator. No petition to appoint a personal representative is pending or has been granted.
- The assets are worth $75,000 or less on the date of the affidavit, excluding the homestead and exempt property.
- It's filed with the proper court. TexasLawHelp explains that this is usually the court in the county where the person lived at death.
- The judge approves it (§205.003).
- The heirs deliver certified copies to whoever holds the property, such as the bank (§205.004).
The heirs are also entitled to the estate only to the extent the assets exceed the known debts. If the person owed more than they owned, this route won't work.
What counts as exempt? Section 205.009 says that homestead and exempt property here mean only what a court could set aside under §353.051: the homestead for the surviving spouse and minor children, and certain personal property (such as furnishings or a vehicle under Property Code §42.002) for them and for unmarried children living with the family. TexasLawHelp adds that pensions, IRAs and insurance benefits are also exempt, and that payable-on-death and transfer-on-death accounts aren't counted as estate assets.
Who signs and what it must say
Under §205.002, the affidavit must be sworn to by:
- Two disinterested witnesses.
- Each distributee (heir) who has legal capacity.
- Where the facts call for it, the natural guardian or next of kin of a minor heir, or the guardian of an incapacitated heir.
It must include a list of all known assets and liabilities, marking which assets are claimed exempt; each heir's name and address; and the family history that shows each heir's right to a share.
Statute versus practice: the statute says "two disinterested witnesses" but Chapter 205 doesn't define the term. In practice, they are people who knew the family and inherit nothing. "Sworn" means signed under oath, usually before a notary. TexasLawHelp also warns that some courts won't approve a small estate affidavit if any heir is a minor.
Land and houses: the homestead rule
This is the part that matters most if the house is still in a parent's name or the family owns land.
- Only the homestead passes. Section 205.006 allows the affidavit to transfer title to the home the person lived in, but only if that home was their only real property.
- No other land. Section 205.008 says that outside that case, a small estate affidavit doesn't transfer real property. If your mother owned her home in San Antonio and also a lot in the Rio Grande Valley, the affidavit can't transfer either one as real estate.
- It must be recorded. An affidavit that transfers the home has to be recorded in the deed records of the county where the home is.
Example: a father dies without a will in Houston. He owned the home he shared with his wife, a car and $8,000 in the bank, and no other real estate. In a case like that, a small estate affidavit could cover the bank account, the car and the house, if the judge approves it.
Another example: a grandfather lived with one of his sons in Laredo but also owned 10 acres elsewhere in Webb County. A small estate affidavit can't pass those 10 acres. The family would need another route, such as an affidavit of heirship or probate. See our guide to heirs' property.
What if there's no spouse or minor child? TexasLawHelp says the affidavit works for the home only when it will be inherited by the surviving spouse or minor children who lived there. That follows from §§205.009 and 353.051: if no such family member survives, the house may count toward the $75,000 limit. If both parents have died and only adult children remain, talk to a lawyer before you pay the filing fee.
The statute also protects a good-faith buyer who relies on the recorded affidavit. If a left-out heir turns up later, that heir can recover from the heir who sold (§205.006). That's why it matters not to leave anyone out, including children from another relationship.
How to do it, step by step
- Wait 30 days after the death.
- List everything the person owned and owed, with values. Mark what is exempt.
- Get your county's form. TexasLawHelp links to forms for Bexar, Harris, Travis, El Paso, Hidalgo and other counties.
- Fill in the family history: spouse, children (including children from other relationships), and each heir's share.
- Everyone signs before a notary: each adult heir and both disinterested witnesses.
- File it with the county probate court and pay the fee, or ask to file without paying if you can't afford it.
- Wait for the judge's approval. Some courts require a hearing; ask yours.
- Get certified copies and give them to the bank or whoever holds the property.
- If the affidavit transfers the home, record it in the deed records of the county where the home is.
Afterward, to keep the home's tax exemption, see our guide to the homestead exemption for heirs.
What it costs
There's no single statewide fee. These are the official fees we found in October 2026:
| County | Filing the small estate affidavit | Recording in the deed records |
|---|---|---|
| Harris (Houston) | $360 | Varies, ask the county clerk |
| Travis (Austin) | $360 base, plus other charges | $25 first page, $4 each additional page |
| Bexar (San Antonio) | Varies: call the county | $25 first page, $4 each additional page |
TexasLawHelp says every Texas county charges a filing fee, typically a few hundred dollars. If you can't afford it, you can file a Statement of Inability to Afford Payment of Court Costs.
The law doesn't require a lawyer. But if the judge rejects the affidavit, you can lose the fee, which is why TexasLawHelp suggests having a lawyer review it first. Look for free legal help; Bexar County advertises free small estate affidavit clinics for low-income families.
When it doesn't work
- There is a will.
- The assets, excluding the homestead and exempt property, exceed $75,000.
- The debts exceed the assets.
- The person owned land or another house besides the homestead.
- An heir won't or can't sign, or no one knows where they are.
- Someone has already asked the court to appoint an administrator.
- Fewer than 30 days have passed since the death.
In those cases, the usual options are a court determination of heirship, an affidavit of heirship or probate. For terms like distributee or homestead, see our glossary. And remember that a Texas notary is not a lawyer and can't tell you which document you need; see a notary is not a lawyer.
Costs and timing
| Step | Cost | Approximate time | Where |
|---|---|---|---|
| Read the guide and get county forms | Free | A few minutes | TexasLawHelp.org |
| Wait after the death | Free | At least 30 days (by statute) | You can't file sooner |
| File with the Harris County probate courts | $360 (court filing fee) | Varies | Harris County Clerk, Probate |
| File with the Travis County probate court | $360 base fee, plus other charges depending on the case | Varies | Travis County Clerk, Probate |
| Certified copy of the approved affidavit | Travis: $5 per document plus copy cost. Bexar: $5 per document plus $1 per page | Same day or varies | The county clerk |
| Record the homestead affidavit in Bexar or Travis | $25 for the first page and $4 per additional page | Varies | Bexar and Travis County Clerk |
| If you can't afford the court fee | You can ask to file without paying | Varies | Statement of Inability to Afford Payment of Court Costs |
| Get free legal help | Free if you qualify by income | Varies by organization | Free legal help in Texas |
Fees taken from each county's official pages in October 2026; they can change. We could not confirm Bexar County's small estate affidavit filing fee on its official schedule. Call the county probate clerk before you go.
The law and official forms
The law
- Texas Estates Code §205.001: the heirs of someone who died without a will can receive the estate without an administration if 30 days have passed, no petition to appoint a personal representative is pending or granted, the assets (excluding homestead and exempt property) don't exceed $75,000, the affidavit is filed with the proper court, the judge approves it, and the heirs deliver copies (§205.004).
- Texas Estates Code §205.002: the affidavit must be sworn to by two disinterested witnesses and by each distributee with legal capacity (and, where needed, the guardian or next of kin of a minor or incapacitated distributee). It must list all known assets and liabilities, mark which assets are claimed exempt, and give each distributee's name, address and the family history.
- Texas Estates Code §205.003: the judge examines the affidavit and may approve it if it meets the chapter's requirements.
- Texas Estates Code §205.004: the distributees must give a clerk-certified copy to anyone who owes the estate money or holds estate property, such as a bank.
- Texas Estates Code §205.006: if the homestead is the only real property in the estate, the affidavit can transfer title to it. The affidavit must be recorded in the deed records of the county where the homestead is. An heir left out of the affidavit can recover from an heir who sold.
- Texas Estates Code §205.007: everyone who signed the affidavit is liable for losses caused by reliance on it.
- Texas Estates Code §205.008: the chapter doesn't affect property passing under a will, and except for the homestead (§205.006) it does not transfer title to real property.
- Texas Estates Code §205.009 and §353.051: “homestead” and “exempt property” in this chapter mean only property that could be set aside under §353.051: the homestead for the surviving spouse and minor children, and certain personal property for them and other children living with the family.
Official forms
- Small Estate Affidavits (FAQ), TexasLawHelp.org: links to county forms for Bexar, Collin, Dallas, Denton, El Paso, Harris, Hidalgo, Lubbock and Travis.
- Order Approving Small Estate Affidavit, TexasLawHelp.org: sample of the order the judge signs.
- Affidavit of Distributees / Small Estate With Judge's Order of Approval, Harris County Clerk: Harris County probate courts form.
- Small Estate Affidavit, Bexar County: Bexar County form.
- Statement of Inability to Afford Payment of Court Costs, Harris County Clerk: to ask to file without paying court fees.
When to call a lawyer
- Your relative left a will, even if it was never filed with a court.
- They owned land, a lot or another house besides the home they lived in.
- There is no surviving spouse or minor child and the house is valuable: the house may count toward the $75,000 limit.
- An heir is a minor, can't be found or won't sign.
- Debts exceed assets, or there's a mortgage or back taxes on the property.
- The court rejected your affidavit, or a bank or title company wouldn't accept it.
Find free legal help or check a lawyer at texasbar.com.
Frequently asked questions
What is a small estate affidavit in Texas?
It's a sworn statement, signed by the heirs and two witnesses, listing what the person who died owned and owed and who their heirs are. It's filed with the county probate court and approved by a judge. It replaces a full probate when there is no will and the estate, not counting the homestead and exempt property, is worth $75,000 or less.
How do you inherit without probate in Texas?
It depends on the situation. A small estate affidavit works when there's no will and the estate is small. An affidavit of heirship is common for land when there's no will. If the person signed and recorded a transfer on death deed before dying, the property passes without court. Each has limits, and if there is a will you will usually need probate.
Can I put land in my name with a small estate affidavit?
Only if that land is the homestead (the home your relative lived in) and it was the only real estate they owned. Estates Code §205.008 says that otherwise a small estate affidavit does not transfer real property. For separate land, a ranch or a vacant lot, talk to a lawyer about an affidavit of heirship or probate.
How much does a small estate affidavit cost in Texas?
The court fee depends on the county. Harris and Travis both list a $360 base fee (October 2026). Expect extra charges for certified copies and, if the affidavit transfers the house, recording in the deed records ($25 for the first page and $4 per additional page in Bexar and Travis). If you can't afford the fee, you can file a Statement of Inability to Afford Payment of Court Costs.
How long do you have to wait after a death?
The statute requires at least 30 days after the death. After that, approval time depends on each county's court. Some courts hold a hearing with the judge and others don't.
Who counts as a disinterested witness?
The statute requires two disinterested witnesses in addition to the heirs. In practice, they are people who knew the deceased and the family but inherit nothing from the estate. Ask your county's probate court whether it has its own rules on who can serve.
Does a small estate affidavit work if my father left a will?
No. The statute limits this procedure to people who died without a will. If there's a will, see our probate guide; in Texas a will generally has to be offered for probate within 4 years.
Nuestras Tierras, https://nuestrastierras.org/en/texas/guides/small-estate-affidavit/. Updated: 2026-10-23. Legal review: pending. General information, not legal advice.