Texas Small Estate Affidavit: Skip Probate Under $75,000 (2026)

· Published on

When someone dies leaving only a modest estate and no will, full probate can feel like using a sledgehammer to hang a picture. Texas offers a lighter tool: the small estate affidavit. It lets the heirs collect the assets by filing a sworn statement, without opening a formal administration, as long as the estate is small enough and a specific set of conditions is met.

The rules are set out in Chapter 205 of the Texas Estates Code.1 This guide covers the dollar threshold, who qualifies, what the affidavit can and cannot do, and the step-by-step process.

The essentials at a glance
  • The estate, excluding the homestead and exempt property, must be worth $75,000 or less.1
  • There must be no valid will (the person died intestate).
  • At least 30 days must have passed since the death.
  • Estate assets must exceed the debts (not counting debts secured by exempt property).
  • No petition for a personal representative can be pending or granted.

The $75,000 threshold

The headline requirement is size. To use a small estate affidavit, the total value of the estate's assets, not counting the homestead and exempt property, must be $75,000 or less.1 Because the homestead is excluded from that count, a family home does not automatically push an estate over the line. Exempt property, such as certain household items and a vehicle, is also left out of the calculation.

Another condition sits alongside the dollar cap: the estate's assets must exceed its known liabilities, apart from debts secured by exempt property. In other words, the small estate affidavit is for solvent estates that are simply small, not for insolvent ones.

Who qualifies to use it

The small estate affidavit is only available when the person died without a valid will.2 If there is a will, the correct path is to probate it, potentially as a muniment of title if the estate is clean. Beyond that, every one of these must be true:

  • At least 30 days have passed since the death.
  • No petition for the appointment of a personal representative is pending or has been granted.
  • The estate's value, excluding homestead and exempt property, does not exceed $75,000.
  • The assets exceed the liabilities (excluding debts secured by exempt property).
  • Everyone entitled to inherit under Texas intestacy law is identified and signs the affidavit.

The affidavit must be sworn to by the distributees and by two disinterested witnesses, then filed and approved by the judge in the county where the person lived.1

The step-by-step process

  1. Wait 30 days after the death before filing.
  2. Confirm the estate qualifies under the $75,000 cap, the no-will requirement, and the solvency test.
  3. Identify all the heirs under Texas intestacy law and determine each one's share. Our dying without a will in Texas guide explains those shares.
  4. Prepare the affidavit, listing the assets, their values, the debts, the family history, and each heir's fractional interest.
  5. Have it sworn and signed by all the distributees and by two disinterested witnesses.
  6. File it with the court in the county of residence and pay the filing fee. A judge reviews and, if everything is in order, approves it.
  7. Use the approved affidavit to collect the assets. Present certified copies to banks and others holding the property.2
What it cannot do. A small estate affidavit is limited. It cannot transfer real estate other than the deceased's homestead passing to heirs, so it will not move rental property or land. It cannot be used when there is a will. And every heir must cooperate and sign. If any of those is a problem, the estate needs a different route, often a formal probate or an heirship proceeding.

If the small estate affidavit does not fit

Plenty of estates fall just outside these rules, too large, real property beyond the homestead, or a will that exists. In those cases the usual answer is one of the regular probate routes. Because Texas independent administration is efficient, even a full probate is rarely the ordeal people fear. Our guide on how probate works in Texas walks through the alternatives, including muniment of title.

The bigger lesson: write a will

Notice the recurring theme: the small estate affidavit only exists because the person did not leave a will. Dying intestate forces the family through the intestacy formula and limits which shortcuts they can use. A simple, valid will avoids that entirely, letting you decide who inherits and making the whole process smoother for the people you leave behind. To put one in place, read how to write a will in Texas or create your Texas will here.

Sources

  1. 1Texas Estates Code Chapter 205, Small Estate Affidavit (statutes.capitol.texas.gov)
  2. 2Small Estate Affidavits, Texas Law Help (texaslawhelp.org)
  3. 3Texas Estates Code Sec. 205.001, Entitlement to Estate Without Administration (statutes.capitol.texas.gov)

Frequently Asked Questions

What is the dollar limit for a Texas small estate affidavit? The estate, excluding the homestead and exempt property, must be worth $75,000 or less.

Can I use a small estate affidavit if there is a will? No. It is only for estates where the person died without a valid will. With a will, you probate it, possibly as a muniment of title.

How long do I have to wait to file? At least 30 days must pass after the date of death before you can file the affidavit.

Can a small estate affidavit transfer a house? Only the deceased's homestead passing to heirs. It cannot transfer other real estate such as rental property or land.

Max Kuch

About the author

Max Kuch

Max Kuch writes about estate planning, wills and inheritance for Texas Will Template. He gathers the rules from the Texas statutes and the leading public data, then explains them in plain, accessible language so anyone can put their wishes in writing.

Your personal draft will in 15 minutes

Answer a few simple questions and get a draft tailored to your situation, instantly as PDF, Word and OpenOffice.

Create your will now

Personalized · Legally sound · Download instantly

Frequently asked questions

Yes, provided you finish it the right way. Under Tex. Est. Code Sec. 251.051 and 251.052, a holographic will is valid when it is written wholly in your own handwriting and signed by you. No witnesses are required and no date is required. What we hand you is a clean, correctly structured draft. It becomes a legally valid holographic will the moment you copy the whole thing out by hand on paper and sign it yourself.

Because Texas recognizes two separate paths, and printing points you toward the harder one. A typed or printed will has to be signed in front of two credible witnesses to be valid. A holographic will skips the witnesses entirely, but only if it is written completely in your own handwriting. If you print our draft and sign it alone, it is neither a valid witnessed will nor a valid holographic will. Copying the full text by hand is what makes the witness-free route work, so the handwriting is not a formality, it is the whole point.

Texas gives you unusually wide freedom here. There is no forced heirship and no elective share, so you are not required to leave a fixed portion to your spouse or to your children, and you can disinherit an adult child if you choose. One thing you cannot give away, though, is property that is not fully yours. Texas is a community property state, which means your surviving spouse already owns one half of everything the two of you acquired during the marriage. Your will can only dispose of your own half of the community property plus your separate property, so name what is genuinely yours to give.

Keep the signed original somewhere safe and dry, and make sure the person you named as executor knows exactly where it is, because a copy is far weaker than the original if the will ever has to be probated. If you want extra security, the clerk of the county where you live can hold your will for safekeeping during your lifetime under Tex. Est. Code Sec. 252.001, whether you are in Houston, Dallas, Austin, San Antonio or anywhere else in the state. Texas has no statewide will registry, so there is no central database to file it in.

We strongly recommend against a single shared document. A holographic will has to be wholly in one person's handwriting, so two people physically cannot create one valid handwritten will together. Beyond that, joint wills tend to lock the survivor into terms that are painful to change after the first death. The clean solution is two separate mirror wills, one in each spouse's own handwriting, each signed by that spouse. You can make them say almost the same thing while keeping each one independently valid and freely revocable.

Yes, and it is easy. A Texas will has no expiration, but life does not stand still, so revisit it after a marriage, a divorce, a birth, a death or a move. The safest way to make a change is to handwrite and sign a brand new holographic will that revokes all previous wills, then destroy the old signed original so no stale version can surface later. Avoid scribbling edits in the margins of a finished will, since alterations can raise doubt about what you actually intended.

No, and we do not pretend it does. This service gives you a solid, well-organized draft for a straightforward estate, which covers a great many Texas families perfectly well. But if your situation is complex, for example a blended family, a business, property in more than one state, a beneficiary with special needs or a plan that involves a trust, you should have a Texas estate attorney review it. Think of this as a strong, affordable starting point, not as legal advice.

Built for Texas

Structured around Texas Estates Code rules for holographic wills

Private and secure

SSL encrypted, your data stays private

Real support

Questions answered by a real person, not a bot

Up to date

Current Texas law