Texas: Small Estate Affidavit Thresholds & Procedure

Requirements one by one

Governing law

Texas Estates Code Chapter 205, §§ 205.001–205.009 ("Small Estate
Affidavit"), within Subtitle E (Intestate Succession) of Title 2.

Dollar threshold

$75,000, and the way it's calculated matters: Section 205.001(3) measures
"the value of the estate assets ... excluding homestead and exempt
property," compared against "the known liabilities of the estate,
excluding any liabilities secured by homestead and exempt property." In
other words, it's a net figure (assets minus ordinary debts), not a gross
one, and the homestead and statutory exempt property (a category defined
elsewhere in Texas law) are excluded from both sides of the calculation
entirely. This $75,000 figure was raised from $50,000 by HB 2271 in 2017,
effective September 1, 2017 — some older secondary sources still show the
prior $50,000 number.

Court filing required?

Yes. The affidavit isn't self-executing the way some states' versions are:
it must be "filed with the clerk of the court that has jurisdiction and
venue of the estate," and a judge must personally examine it and approve
it before it takes effect. There's no hearing described in the statute for
the ordinary case, but the judge's approval is a real, required step — a
signed affidavit sitting in a drawer has no legal effect in Texas until a
judge signs off on it.

Waiting period after death

30 days.

Works with a will, intestacy, or both?

Intestate only. Section 205.001 opens by limiting the entire procedure to
"distributees of the estate of a decedent who dies intestate" — if the
decedent left a valid will, this affidavit is not available at all,
regardless of how small the estate is.

Does it cover real property?

Only the homestead, and only under a narrow condition: Section 205.006
allows the affidavit to transfer title to the homestead "if a decedent's
homestead is the only real property in the decedent's estate." If the
estate includes any other real property — a rental house, undeveloped
land, a second home — the homestead exception doesn't apply and neither
piece of real estate can be transferred through this affidavit. The
recorded affidavit must be filed in the deed records of the county where
the homestead is located.

Signature formalities

The affidavit must be sworn to by two disinterested witnesses, by every
distributee of the estate who has legal capacity, and — if the facts call
for it — by the natural guardian or next of kin of any minor distributee,
or the guardian of an incapacitated one. This is a materially higher bar
than a state that only requires the affiant's own signature: Texas
requires outside witnesses in addition to the heirs themselves.

Protection for the bank/holder

Strong, mirroring how a formal personal representative's authority works.
A person who pays, delivers, or transfers property under an approved
affidavit "is released to the same extent as if made to a personal
representative," and cannot be required to see to the affidavit's proper
application or investigate whether its statements are true. That
protection runs to the holder only — the people who signed the affidavit
remain personally liable for any damage or loss that results if the
affidavit turns out to be wrong, and a person who wrongly refuses to honor
a valid, approved affidavit can be sued to force compliance.

What trips people up

The intestacy requirement is the single biggest trap: this procedure is
completely unavailable if the decedent left any will at all, even an
informal one, and even if the will simply confirms what intestacy would
have produced anyway. A second common mistake is assuming the $75,000
figure is a simple gross-value test — it's actually net of ordinary debts,
with homestead and exempt property stripped out of both the asset side and
the liability side before comparing. And because the affidavit needs a
judge's approval, it isn't the same-day, no-court process some people
expect from the phrase "small estate affidavit" — it still means a trip to
the probate court clerk's office and a wait for judicial review.

Common questions

What if the decedent left a will? This affidavit isn't available; a
different procedure (such as an independent administration, which Texas
uses more often than most states) is the option instead.

Can I use this to transfer a rental property or vacant land? No —
the real-property exception only reaches the homestead, and only when
it's the sole piece of real estate the decedent owned.

Does the estate need to be completely debt-free? No, but the
statute's $75,000 comparison already nets out ordinary debts against the
assets — an estate with modest debts and modest assets can still qualify
as long as the net figure clears the test.

Statutes and sources

• Tex. Estates Code § 205.001 — "The distributees of the estate of a
  decedent who dies intestate are entitled to the decedent's estate
  without waiting for the appointment of a personal representative of the
  estate to the extent the estate assets, excluding homestead and exempt
  property, exceed the known liabilities of the estate, excluding any
  liabilities secured by homestead and exempt property, if: (1) 30 days
  have elapsed since the date of the decedent's death; (2) no petition for
  the appointment of a personal representative is pending or has been
  granted; (3) the value of the estate assets on the date of the affidavit
  described by Subdivision (4), excluding homestead and exempt property,
  does not exceed $75,000; (4) an affidavit that meets the requirements of
  Section 205.002 is filed with the clerk of the court that has
  jurisdiction and venue of the estate; (5) the judge approves the
  affidavit as provided by Section 205.003; and (6) the distributees
  comply with Section 205.004." —
  https://codes.findlaw.com/tx/estates-code/est-sect-205-001/
  (accessed 2026-07-06)
• Tex. Estates Code § 205.002(a)(1) — "An affidavit filed under Section
  205.001 must: (1) be sworn to by: (A) two disinterested witnesses; (B)
  each distributee of the estate who has legal capacity; and (C) if
  warranted by the facts, the natural guardian or next of kin of any minor
  distributee or the guardian of any other incapacitated distributee" —
  https://codes.findlaw.com/tx/estates-code/est-sect-205-002/
  (accessed 2026-07-06)
• Tex. Estates Code § 205.003 — "The judge shall examine an affidavit
  filed under Section 205.001. The judge may approve the affidavit if the
  judge determines that the affidavit conforms to the requirements of this
  chapter." —
  https://codes.findlaw.com/tx/estates-code/est-sect-205-003/
  (accessed 2026-07-06)
• Tex. Estates Code § 205.006(a) — "If a decedent's homestead is the only
  real property in the decedent's estate, title to the homestead may be
  transferred under an affidavit that meets the requirements of this
  chapter. The affidavit used to transfer title to the homestead must be
  recorded in the deed records of a county in which the homestead is
  located." —
  https://codes.findlaw.com/tx/estates-code/est-sect-205-006/
  (accessed 2026-07-06)
• Tex. Estates Code § 205.007(a)-(c) — "A person making a payment,
  delivery, transfer, or issuance under an affidavit described by this
  chapter is released to the same extent as if made to a personal
  representative of the decedent. The person may not be required to: (1)
  see to the application of the affidavit; or (2) inquire into the truth
  of any statement in the affidavit. ... Each person who executed the
  affidavit is liable for any damage or loss to any person that arises
  from a payment, delivery, transfer, or issuance made in reliance on the
  affidavit." —
  https://codes.findlaw.com/tx/estates-code/est-sect-205-007/
  (accessed 2026-07-06)