Small Estate Affidavit in Texas: When It Works
A small estate affidavit is a sworn statement that lets heirs of a Texas decedent who left no will collect certain assets without a full probate case. It is available when the estate, not counting the homestead and exempt property, is $75,000 or less, with no will and no probate pending. Two disinterested witnesses sign, a judge approves it, and it can be used to claim assets such as bank accounts and a vehicle.
Who can use it
- There is no will, or no will is being probated.
- No petition for appointment of an executor or administrator is pending.
- The value of the estate, excluding the homestead and exempt property, does not exceed $75,000.
- The estate's debts, other than those secured by real estate, have been paid or provided for.
The affidavit is for heirs of someone who died without a will. If there is a will, a different procedure such as a muniment of title is used.
How it works
- An heir prepares an affidavit listing the assets, debts and heirs.
- Two disinterested witnesses sign it, stating they know the facts and that the estate is within the limit.
- The judge reviews it and, if satisfied, approves it.
- The heirs present the approved affidavit to banks and agencies to collect the assets.
What it can cover
Assets that commonly pass this way include bank accounts, a vehicle, final wages, a tax refund, and personal property. Many institutions accept it, but some require more documents. The affidavit also records who the heirs are, which can help establish title.
Limits
- Real estate is the weak spot. Title companies often want a court order or other proof before they insure a sale, so ask an attorney before relying on the affidavit for a house.
- It does not work if the estate exceeds the limit or debts remain.
- A bank may still refuse it, so be ready with a court order or another route.
- It is not a substitute for a will or a trust. Planning ahead avoids the need for it.
The homestead and exempt property
The $75,000 limit does not count the homestead or exempt property such as certain household goods. But a surviving spouse may have homestead rights and family allowances, which the affidavit does not replace. Ask an attorney before relying on this procedure when a house is involved.
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Book Free ConsultationFrequently asked questions
What is the Texas small estate limit?
The estate, excluding homestead and exempt property, must not exceed $75,000 to use the small estate affidavit procedure.
Can I use it if there is a will?
No. It is for estates without a will being probated. A will calls for a different procedure.
Does it transfer a house?
Often not in practice. Title companies usually want a court order or other proof for real estate, so get legal advice before using it for a house.
Do I need a lawyer?
Not required, but the affidavit has specific requirements, and mistakes can cause banks to refuse it.