Texas Small Estate Affidavit
In Texas an heir can use a small estate affidavit under Estates Code Chapter 205 when the decedent died without a will, 30 days have passed, and the estate assets excluding homestead and exempt property are $75,000 or less. The probate court must approve it. Attorney review available.
Introduction
A small estate affidavit is a sworn statement that lets a decedent's heirs collect the estate without a full probate administration. In Texas it is used under Estates Code Chapter 205, and it works differently from the affidavits in many states in two ways. First, it is available only when the decedent died without a will. Second, it must be filed with the probate court and approved by the judge before it has effect, rather than being handed straight to a bank. It is available only when the value of the estate assets, excluding homestead and exempt property, does not exceed $75,000, and when those assets exceed the known liabilities of the estate, excluding liabilities secured by homestead and exempt property. The affidavit may be filed only after 30 days have elapsed since the date of death, and only when no petition for the appointment of a personal representative is pending or has been granted. The affidavit must be sworn to by two disinterested witnesses. The homestead is the only real property that may pass this way, and only if it is the sole real property in the estate. DocDraft builds your Texas small estate affidavit from your facts, with attorney review available before you sign.
Key Things to Know
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A small estate affidavit is a sworn statement that lets a decedent's heirs collect the estate without full probate; Texas provides it under Estates Code Chapter 205.
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It is available only when the value of the estate assets, excluding homestead and exempt property, does not exceed $75,000 (Texas Estates Code Section 205.001).
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It is available only when the decedent died without a will and no petition for the appointment of a personal representative is pending or has been granted (Texas Estates Code Section 205.001).
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The affidavit may be filed only after 30 days have elapsed since the date of the decedent's death (Texas Estates Code Section 205.001).
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The estate assets, excluding homestead and exempt property, must exceed the known liabilities of the estate, excluding liabilities secured by homestead and exempt property (Texas Estates Code Section 205.001).
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The affidavit must be filed with the court and approved by the judge, who examines it and may approve it if it conforms to Chapter 205 (Texas Estates Code Section 205.003). It is not simply handed to a bank.
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The homestead is the only real property that may be transferred by the affidavit, and only if it is the sole real property in the estate; the affidavit must be sworn to by two disinterested witnesses (Texas Estates Code Sections 205.006 and 205.002).
Key decisions before you file
Before you file a Small Estate Affidavit in Texas, a few decisions shape the document: which option to choose and what each one means. The Small Estate Affidavit guide walks through them.
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Once your Small Estate Affidavit is ready, you can check whether it needs to be notarized in Texas in about a minute, and notarize it online through DocDraft if it does.
Texas Requirements for Small Estate Affidavit
In Texas the small estate affidavit may be filed only after at least 30 days have elapsed since the date of the decedent's death (Texas Estates Code Section 205.001). The affidavit states that this 30-day period has passed.
The affidavit is available only when the value of the estate assets, excluding homestead and exempt property, does not exceed $75,000 (Texas Estates Code Section 205.001). The homestead and exempt property are not counted toward the limit.
A Texas small estate affidavit is available only when the decedent died without a will, and only when no petition for the appointment of a personal representative is pending or has been granted (Texas Estates Code Section 205.001). If there is a will, the affidavit is not available.
The estate assets, excluding homestead and exempt property, must exceed the known liabilities of the estate, excluding any liabilities secured by homestead and exempt property (Texas Estates Code Section 205.001). The affidavit is available only for a solvent small estate.
The affidavit is filed with the court, and the judge examines it and may approve it if it conforms to the requirements of Chapter 205 (Texas Estates Code Section 205.003). Unlike states where the affidavit is handed to a bank, in Texas court approval comes first.
The affidavit must be sworn to by two disinterested witnesses and by each distributee of the estate who has legal capacity, with a guardian or agent signing for a distributee who does not (Texas Estates Code Section 205.002).
The homestead is the only real property that may be transferred by the affidavit, and only if it is the sole real property in the estate (Texas Estates Code Section 205.006). No other real property passes this way.
The affidavit must set out the decedent's family history showing the right of each distributee to the estate, and it is signed under oath (Texas Estates Code Chapter 205). Do not sign if the facts, the values, or the heirs are uncertain.
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Check my Small Estate AffidavitFrequently Asked Questions
It is a sworn statement under Texas Estates Code Chapter 205 that lets a decedent's heirs collect the estate without a full probate administration. In Texas it is available only when the decedent died without a will, and it must be filed with the probate court and approved by the judge before it takes effect. It is available when the estate assets, excluding homestead and exempt property, are $75,000 or less, and it may be filed 30 days after the death. Once approved, a certified copy is used to collect assets and, in some cases, transfer the homestead.
Full probate in Texas appoints an executor or administrator to gather assets, pay debts, and distribute the estate. A Texas small estate affidavit under Chapter 205 skips appointing a representative: the heirs swear to the affidavit, the judge examines and approves it, and the approved affidavit is used to collect the property. It is available only when there is no will, the estate assets excluding homestead and exempt property are $75,000 or less, and those assets exceed the known liabilities.
Under Texas Estates Code Section 205.001, the value of the estate assets, excluding homestead and exempt property, must not exceed $75,000. The homestead and exempt property are not counted toward the limit. In addition, those countable assets must exceed the known liabilities of the estate, excluding liabilities secured by homestead and exempt property, so the Texas affidavit is available only for a solvent small estate.
At least 30 days must have elapsed since the date of the decedent's death before the affidavit may be filed (Texas Estates Code Section 205.001). The affidavit states that 30 days have passed. If fewer than 30 days have elapsed, or if a petition for the appointment of a personal representative is pending or has been granted, the Texas small estate affidavit is not available and the estate must use another process.
Only the homestead. Under Texas Estates Code Section 205.006, if the decedent's homestead is the only real property in the estate, title to the homestead may be transferred under the affidavit. No other real property passes this way. If the decedent owned real property other than the homestead, the Texas small estate affidavit cannot be used to transfer it, and a different probate procedure is needed.
A Texas small estate affidavit is available only when the decedent died without a will. It must be filed with the court, and the judge examines the affidavit and may approve it if it conforms to the requirements of Chapter 205 (Texas Estates Code Section 205.003). Unlike states where the affidavit is presented directly to a bank, in Texas the court approval comes first, and a certified copy of the approved affidavit is then used to collect the assets.
Under Texas Estates Code Section 205.002, the affidavit must be sworn to by two disinterested witnesses and by each distributee of the estate who has legal capacity, with a guardian or agent signing for a distributee who does not. The distributees are the heirs entitled to the estate under Texas intestacy law, since the affidavit is available only when there is no will. Every required signer swears to the truth of the affidavit.
The affidavit is sworn to under oath and examined by a judge, so false statements carry legal consequences. If the estate assets excluding homestead and exempt property exceed $75,000, if there is a will, or if the assets do not exceed the known liabilities, the Texas affidavit is not the right tool. Because Chapter 205 has several strict conditions, a Texas small estate affidavit should not be signed if the facts are uncertain.