Texas law offers several paths to avoid full probate. For intestate estates (no will) where the total probate property is $75,000 or less (excluding the homestead and other exempt property), the Texas Small Estate Affidavit (TEC §205.001) allows heirs to collect assets without appointing an executor or opening a court case. Two disinterested witnesses and a notary are required — no county court filing.
Small Estate Affidavit is for intestate estates only. If the deceased left a valid will, the Texas Small Estate Affidavit procedure under TEC §205.001 is NOT available. For testate estates with no unsecured debts, consider Muniment of Title (TEC §257.001) instead. For testate estates with a small value, full probate with Independent Administration may be the only option.
The Requirements for Texas Small Estate Affidavit
- No will — the deceased died intestate (without a valid will)
- At least 30 days have passed since the date of death
- No application for appointment of a personal representative is pending or has been granted
- Total assets (excluding homestead and other exempt property under TEC §42.002) are $75,000 or less
- Two disinterested witnesses who are familiar with the deceased's family history and property must sign the affidavit
- The affidavit must be sworn and notarized
Real estate does not qualify. The Texas Small Estate Affidavit covers personal property — bank accounts, vehicles, investment accounts, and similar assets. If the deceased owned real estate solely in their name, you cannot transfer it using the Small Estate Affidavit. For real property in an intestate estate, use an Affidavit of Heirship (TEC Chapter 203) instead — or open full probate.
What Counts Toward the $75,000 Threshold?
Count: Personal property solely owned by the deceased with no beneficiary designation or surviving joint owner — sole-name bank accounts, vehicles titled in the deceased's name only, investment accounts without TOD, and brokerage accounts without beneficiaries.
Do NOT count (excluded from the $75,000 calculation):
- The homestead — excluded under TEC §205.001 and Texas homestead protection laws
- Other exempt personal property under TEC §42.002 (up to $100,000 for a family; $50,000 for a single adult) — includes home furnishings, clothing, jewelry, two firearms, vehicles, and livestock
- Accounts with a named beneficiary (POD, TOD, IRA, life insurance) — pass directly to the named beneficiary
- Joint tenancy property — passes to the surviving owner
- Trust assets — controlled by the trustee
- The surviving spouse's half of community property
Texas community property reduces the probate estate. Texas is a community property state. The surviving spouse already owns half of all community property acquired during the marriage — that half passes outside probate automatically. For a married couple where most assets are community property, the decedent's probate estate may be much smaller than the couple's total assets, making the Small Estate Affidavit available even for couples with significant total wealth.
Qualifying and Non-Qualifying Examples
| Asset | Value | Counts Toward $75K? | Reason |
|---|---|---|---|
| Sole checking account (no beneficiary) | $32,000 | ✅ Yes | Personal property in deceased's name only |
| Vehicle (sole title, not exempt) | $18,000 | ✅ Yes | Total so far: $50,000 |
| Savings account (no beneficiary) | $20,000 | ✅ Yes | Total: $70,000 — under $75,000 ✅ |
| Homestead (family home) | $450,000 | ❌ No | Excluded as homestead — use Affidavit of Heirship for title transfer |
| IRA with named beneficiary | $200,000 | ❌ N/A | Passes directly to beneficiary — not probate property |
| Home furnishings (exempt personal property) | $15,000 | ❌ No | Exempt personal property under TEC §42.002 |
| Deceased's half of community checking account | $25,000 (half of $50K) | ✅ Potentially | Only deceased's half ($25K) counts toward threshold |
How to Use the Texas Small Estate Affidavit — Step by Step
- Confirm no will exists — check safe deposit boxes, home files, the county clerk's will deposit registry (some counties accept will deposits), and attorney offices
- Wait 30 days from the date of death
- Confirm eligibility — total non-exempt personal property is $75,000 or less; no probate proceeding is pending; no will
- Identify all heirs under Texas intestacy law (TEC Chapter 201) — who inherits depends on the family situation (spouse, children, parents, siblings)
- Draft the affidavit — the affidavit must contain: the deceased's name, date of death, and county of domicile; confirmation that 30+ days have passed; that no probate proceeding is pending; the names and addresses of all heirs and their relationship; a listing of all known estate assets and their values; a listing of all debts; a statement that total non-exempt property does not exceed $75,000; and each heir's entitlement
- Obtain two disinterested witnesses — witnesses must be familiar with the deceased and must not be heirs or beneficiaries
- Sign before a notary public
- Attach a certified death certificate from Texas DSHS Vital Statistics
- Present the affidavit directly to each asset holder — bank, TxDMV (vehicle title), investment broker
- The asset holder must transfer the property — they are legally protected when acting on a valid affidavit under TEC §205.001
No county court filing is required. Unlike some states where the small estate affidavit is filed with the court, Texas's Small Estate Affidavit under TEC §205.001 is presented directly to the institution holding the asset. Take it to the bank, TxDMV, or brokerage — not to the county courthouse. There is no filing fee.
Texas's Three No-Court Options Compared
| Procedure | Who Can Use It | Covers Real Estate? | Threshold | Wait |
|---|---|---|---|---|
| Small Estate Affidavit (TEC §205.001) | Intestate estates only (no will) | ❌ No | $75,000 non-exempt personal property | 30 days |
| Muniment of Title (TEC §257.001) | Testate estates (will required); no unsecured debts except homestead lien | ✅ Yes — primary purpose | No dollar limit | Court proceeding (weeks) |
| Affidavit of Heirship (TEC Chapter 203) | Intestate estates; real property only | ✅ Yes — exclusively for real property | No dollar limit | No wait; recorded in deed records |
What If the Estate Doesn't Qualify for Small Estate Affidavit?
If the deceased left a will, or if personal property exceeds $75,000, or if real estate is involved, the Small Estate Affidavit is not the right tool. Consider:
- Muniment of Title (TEC §257.001) — for testate estates with no unsecured debts, to transfer real property without appointing an executor
- Affidavit of Heirship (TEC Chapter 203) — for intestate estates with real property, recorded in county deed records (no court required, but title companies may require a 5-year seasoning period)
- Full Probate — Independent Administration (TEC §401.001) — for all other Texas estates; court appointment followed by largely unsupervised administration
No Texas estate tax or inheritance tax — ever. Texas has no state estate tax and no inheritance tax. Whether you use the Small Estate Affidavit, Muniment of Title, Affidavit of Heirship, or full Independent Administration — no Texas state death tax applies. Only the federal estate tax (for gross estates over $13.61 million in 2024) could apply.
Texas Small Estate Affidavit vs. Neighboring States
| State | Threshold | Wait | Testate Estates? | Real Estate? |
|---|---|---|---|---|
| Texas | $75,000 | 30 days | No — intestate only | No |
| Oklahoma | $200,000 (raised from $50K, eff. Nov 2022) | None | Yes (with will) | No |
| New Mexico | $50,000 | 30 days | Yes (UPC) | No |
| Louisiana | $125,000 | 45 days | Yes | No (movables only) |
| Arkansas | $100,000 | 45 days | Yes | No |
Texas's $75,000 threshold is mid-range for the region, but the requirement that the estate be intestate (no will) is a significant limitation compared to states like New Mexico that allow the affidavit procedure even when a will exists.