Texas Small Estate Affidavit: $75,000 Limit, Wait Time and Rules

Texas lets the heirs of a person who died without a will collect an estate worth up to $75,000, not counting the homestead and exempt property, through a small estate affidavit under Texas Estates Code chapter 205. The affidavit cannot be used until 30 days after the death, and it is not a do-it-yourself bank form: it is filed with the probate court clerk and works only after a judge approves it.

That makes the Texas version stricter than many people expect. It covers only intestate estates, it needs two disinterested witnesses as well as the heirs, and it does not transfer real estate except a homestead that is the only real property in the estate, which applies only when the decedent left a surviving spouse or minor child. For how other states handle this, see our small estate affidavit rules by state.

Information last verified on 2026-10-06. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers the Texas small estate affidavit (Tex. Est. Code §§ 205.001-205.009), the family allowance and order of no administration (§§ 451.001-451.004 and §§ 353.101-353.107), probate of a will as a muniment of title (§§ 257.001, 257.054, 257.102), the surviving-spouse wage affidavit in chapter 453, the TxDMV heirship affidavit for vehicles, and the perjury provisions of Texas Penal Code chapter 37. It does not cover full estate administration, who inherits what under Texas intestacy rules, estate or inheritance tax, or the law of any other state.

When can you use a small estate affidavit in Texas?

You can use the chapter 205 affidavit only when every condition in Section 205.001 is met. The statute requires that the value of the estate assets on the date of the affidavit, "excluding homestead and exempt property, does not exceed $75,000," that 30 days have passed since the death, and that "no petition for the appointment of a personal representative is pending or has been granted."

The heirs are entitled to collect only "to the extent the estate assets, excluding homestead and exempt property, exceed the known liabilities of the estate," not counting debts secured by homestead and exempt property. If the debts are larger, the affidavit does not let the heirs take the property ahead of creditors.

The procedure is also limited to people who died without a will. The affidavit is made by the distributees of an intestate estate. If the person left a will, chapter 205 is the wrong tool, and the family usually looks at a muniment of title instead (covered below).

What counts toward the $75,000 limit

The $75,000 figure is measured on the date of the affidavit and leaves out homestead and exempt property. Chapter 205 defines those terms narrowly: a reference to "homestead" or "exempt property" means only property "that would be eligible to be set aside under Section 353.051 if the decedent's estate was being administered."

Because Section 353.051 sets the homestead aside only for the decedent's surviving spouse and minor children, a home counts as a homestead under chapter 205 only when the decedent left a surviving spouse or minor child. Otherwise the home is not excluded from the $75,000 limit and cannot pass under Section 205.006.

The limit is a flat dollar figure, not indexed for inflation. The legislature's current text of chapter 205 shows amendments in 2015 and 2017 and none in 2025.

Chapter 205 does not say whether assets that pass outside the estate, such as joint accounts with survivorship, payable-on-death accounts, or life insurance with a named beneficiary, count toward the cap. The nonprofit self-help site TexasLawHelp.org says non-probate property does not count as an asset for the affidavit calculation, but we did not find a statute or court rule that settles this. If the estate is close to the limit, ask the probate court clerk or a Texas probate lawyer before relying on the affidavit.

How long do you have to wait?

Thirty days. Section 205.001 requires that "30 days have elapsed since the date of the decedent's death" before the affidavit can be used. Chapter 205 sets no outer deadline, but the affidavit is available only while no petition to appoint a personal representative is pending or has been granted.

Who signs a Texas small estate affidavit?

The affidavit belongs to the distributees, meaning the heirs, of a person who died without a will. Under Section 205.002 it must be sworn to by:

• two disinterested witnesses;
• each distributee of the estate who has legal capacity; and
• if the facts warrant it, the natural guardian or next of kin of any minor distributee, or the guardian of any other incapacitated distributee.

The two witnesses are the requirement people most often miss. Because they must be disinterested, they need to be people who are not taking a share of the estate.

What the affidavit must include

Section 205.002 sets the contents. The affidavit must include "a list of all known estate assets and liabilities," "the name and address of each distributee," and "the relevant family history facts concerning heirship." Assets the heirs claim as exempt are marked as such.

We did not confirm a statewide court-issued small estate affidavit form for Texas, and some county courts use their own. Before preparing anything, ask the clerk of the court in the county where the person lived which form and filing rules that court uses.

Step by step: filing and approval

1. Wait at least 30 days after the date of death, and confirm no one has asked the court to appoint an executor or administrator.
2. Gather what the affidavit must state: every known asset and debt, each heir's name and address, and the family history that shows who the heirs are.
3. Line up the signers: both disinterested witnesses and every heir with legal capacity, plus a guardian or next of kin for any minor or incapacitated heir.
4. File the affidavit with the clerk of the court that has jurisdiction and venue of the estate (Section 205.001). The clerk charges a filing fee that varies by county; the nonprofit TexasLawHelp.org describes it as typically a few hundred dollars. Ask the clerk for the current amount.
5. Wait for the judge. The judge examines the affidavit and may approve it (Section 205.003). The affidavit has no effect unless it is approved. Approval is up to the judge, and TexasLawHelp.org reports that some courts will not approve a small estate affidavit when any heir is a minor; if a minor is an heir, ask the clerk or a lawyer before relying on it.
6. Get certified copies. An approved affidavit is kept as a local government record or recorded in the clerk's "Small Estates" book on payment of the legal recording fee (Section 205.005). Chapter 205 does not set a dollar amount for that fee, so ask the county clerk what it charges.
7. Deliver the certified copy. The distributees give a copy, certified by the court clerk, to each person who owes money to the estate, has custody or possession of estate property, or acts as a registrar, fiduciary, or transfer agent.

What a Texas small estate affidavit covers

Once approved, the affidavit lets the distributees collect the estate's money and property from the banks, employers, brokers, and others who hold it. The person who pays is protected: chapter 205 provides that a person making a payment, delivery, transfer, or issuance under the affidavit "is released to the same extent as if made to a personal representative of the decedent," and that person does not have to look into whether the affidavit is true.

If someone holding estate property refuses to honor an approved affidavit, chapter 205 allows the heirs to sue to recover it.

Can you transfer a house with a small estate affidavit in Texas?

Usually not. Chapter 205 states the rule directly: "Except as provided by Section 205.006, this chapter does not transfer title to real property."

The exception in Section 205.006 covers a homestead that is the only real property in the estate. Under Sections 205.009 and 353.051, a home is a homestead for this purpose only if the decedent left a surviving spouse or minor child, so a house left only to adult children cannot pass this way. An affidavit for that homestead can be recorded in the deed records of the county, and "a bona fide purchaser for value may rely on an affidavit recorded under this section." An heir who was left out of the affidavit may recover from an heir who received payment for the property. Any other real estate, such as a second house, vacant land, or a rental, needs a different procedure, such as a muniment of title if there is a will or a proceeding to declare heirship if there is not (both covered below). For how Texas deed records work, see our guide to Texas property records.

Vehicles: TxDMV Form VTR-262

A titled vehicle usually does not need the court affidavit. The Texas Department of Motor Vehicles uses Form VTR-262, Affidavit of Heirship for a Motor Vehicle. The form states: "If there has been no administration on the estate, and no administration is necessary, the heirs may complete this form, and no further documentation is required."

Up to three heirs can sign on one form, before a notary. The completed form is filed with the title application, Form 130-U, at the county tax assessor-collector. If one heir is a surviving spouse, only the spouse signs, unless the decedent's surviving children have a different parent. The form carries no value cap, and it warns that falsifying it is a third-degree felony.

Final paycheck

A surviving spouse can collect the deceased spouse's final wages without the court affidavit. Under Estates Code chapter 453, an employer that owes current wages, including unpaid sick or vacation pay, is released by paying a person who provides an affidavit "stating that the affiant is the surviving spouse and that no one has qualified as executor or administrator of the deceased spouse's estate." The spouse remains answerable to anyone with a prior right to the money. The statute states no dollar cap. This route is for a spouse only; other heirs use the chapter 205 affidavit or probate. More broadly, when a spouse dies without a will and the community property passes to the surviving spouse, "no administration of the community property is necessary," and while no executor or administrator has qualified the surviving spouse may collect claims due to the community estate (Sections 453.002-453.003).

Unclaimed property held by the Comptroller

The Texas Comptroller handles unclaimed property claims, including claims by heirs. We did not confirm whether the Comptroller accepts a chapter 205 affidavit from heirs or applies any dollar limit to heir claims. Check the Comptroller's current claim instructions before you file, and see our guide to Texas unclaimed property for how searches and claims work.

Liability and false affidavits

Signing this affidavit carries real responsibility. Under chapter 205, the distributees are answerable to anyone with a prior right to the property they collect, and they must account to a personal representative if one is appointed later. Each person who swears to the affidavit is liable for any loss caused by someone relying on it.

A false sworn statement can also be a crime. Texas Penal Code chapter 37 makes perjury, a false sworn statement required or authorized by law, a Class A misdemeanor, and makes aggravated perjury, a material false statement in an official proceeding, a third-degree felony. Every signer should read the affidavit closely and swear only to what they know is true.

When to use another procedure instead

The small estate affidavit does not fit every Texas estate. These routes also go through the court, but they reach situations chapter 205 cannot.

If there is a will: muniment of title

When the person left a will, the court may admit it to probate as a muniment of title under chapter 257, without an administration. There is no dollar cap. The applicant must show that the estate "does not owe an unpaid debt, other than any debt secured by a lien on real estate," or that for another reason there is no need for administration, and the application generally must be filed within four years of the death. After that, a will can be admitted only if the applicant shows they were not in default in failing to present it sooner (Section 256.003).

The order lets the person who takes property under the will deal with it "as if the record of title to the property was vested in the person's name," which includes real estate. Not later than the 180th day after the will is admitted, the applicant must file a sworn affidavit with the court clerk reporting on whether the will's terms have been fulfilled; the court may waive or extend that deadline.

Spouse and minor children: order of no administration

When the estate, excluding homestead and exempt property, is worth no more than the family allowance, an application may be filed by or on behalf of the surviving spouse, minor children, or adult incapacitated children for an order of no administration under chapter 451. The family allowance must be enough to support them "for one year from the date of the decedent's death"; the court sets the amount, and the statute names no dollar figure.

If the court finds the application's facts true and the expenses of the last illness, the funeral, and the proceeding paid or secured, it can assign the entire estate to the family. The order is sufficient legal authority for anyone who owes the decedent money or holds the decedent's property to pay or transfer it. Any interested person may ask the court to revoke the order within one year if more property turns up or the property was misvalued.

If there is no will: proceeding to declare heirship

When a person dies without a will and there has been no administration of the estate in Texas, a court may conduct a proceeding to declare heirship under Estates Code chapter 202. Section 202.0025 provides that it "may be brought at any time after the decedent's death." It is a court route for intestate property, including real estate, that chapter 205 cannot reach.

Full probate administration

If the estate is over $75,000 (excluding homestead and exempt property), includes real estate other than a lone homestead, or otherwise misses one of the chapter 205 conditions, and none of the routes above fits, a full administration is usually needed. Our Texas probate guide explains how that process works.

Related

• Small estate affidavit rules by state
• Texas probate guide
• Texas unclaimed property
• Texas property records

Disclaimer: This article provides general legal information about the Texas small estate affidavit and related procedures under the Texas Estates Code, verified on 2026-10-06. It is not legal advice. For help with a specific estate, contact the probate court clerk in the county where the person lived, a legal aid office, or a lawyer licensed in Texas.

Last updated: 2026-10-06.

Frequently Asked Questions

What is the small estate limit in Texas?

A Texas small estate affidavit is available when estate assets on the date of the affidavit, excluding homestead and exempt property, do not exceed $75,000 (Tex. Est. Code § 205.001). The figure is flat and not indexed.

How long after death can I use a small estate affidavit in Texas?

At least 30 days must have passed since the date of death, and no petition to appoint a personal representative can be pending or granted (Tex. Est. Code § 205.001).

Does a Texas small estate affidavit need to be filed with the court?

Yes. It is filed with the clerk of the court that has jurisdiction and venue of the estate, and the judge must approve it before anyone can rely on it (Tex. Est. Code §§ 205.001, 205.003).

Can I use a small estate affidavit in Texas if there is a will?

No. Chapter 205 is for intestate estates. When there is a will, families often ask the court to probate it as a muniment of title under Estates Code chapter 257, which generally must be sought within four years of the death (a later application requires showing the applicant was not in default, under Section 256.003).

Can I transfer a house with a small estate affidavit in Texas?

Only a homestead that is the only real property in the estate, through an affidavit recorded in the county deed records under Section 205.006. The home counts as a homestead for this purpose only if the decedent left a surviving spouse or minor child (Sections 205.009, 353.051). Otherwise chapter 205 does not transfer title to real property.

Who has to sign a Texas small estate affidavit?

Two disinterested witnesses, each distributee with legal capacity, and, where the facts call for it, a guardian or next of kin for any minor or incapacitated distributee (Tex. Est. Code § 205.002).

How do I transfer a car title after a death in Texas without probate?

If there is no administration and none is necessary, the heirs can complete TxDMV Form VTR-262, sign it before a notary, and file it with the Form 130-U title application at the county tax assessor-collector.