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.
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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).
- 3
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).
- 4
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).
- 5
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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Texas Requirements for Small Estate Affidavit
30-Day Waiting Period
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.
$75,000 Limit Excluding Homestead
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.
No Will Required
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.
Assets Must Exceed Liabilities
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.
Court Must Approve the Affidavit
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.
Two Disinterested Witnesses
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).
Homestead Is the Only Real Property
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.
Sworn Family History
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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