What the rule says
Texas provides a small-estate affidavit procedure as an alternative to full probate. Under Texas Estates Code § 205.001, the procedure is available when:
- The total value of the estate, excluding homestead and exempt property, does not exceed $75,000 - The decedent died without a will (intestate) - At least 30 days have passed since the date of death - The estate's debts (excluding debts secured by homestead and exempt property) do not exceed the estate's assets
The affidavit is filed with the probate court in the county where the decedent resided. The court reviews the affidavit and, if it complies with the statutory requirements, approves it. Once approved, the affidavit operates to transfer the decedent's property to the entitled heirs.
The small-estate affidavit must be sworn to by:
- All distributees who have legal capacity (over 18 and competent) - Two disinterested witnesses who can attest to the family relationships and that no prior administration is pending
What this means in practice
The Texas small-estate affidavit is more procedurally formal than California's affidavit but less involved than full probate. Key practical points:
- Court approval is required. Unlike California's § 13100 affidavit, which is presented directly to property holders without court involvement, the Texas affidavit must be filed with and approved by the probate court. - Available only for intestate estates. If the decedent left a will, the small-estate affidavit is not available. Probate of the will (or the muniment-of-title procedure under § 257) must be used instead. - Real property is restricted. The small-estate affidavit can transfer the decedent's homestead but generally cannot transfer other real property. Non-homestead real property is typically transferred through other procedures. - The $75,000 threshold excludes homestead and exempt property. Texas exempts substantial property categories from estate calculation, including the homestead, certain personal property up to specified values, and life-insurance proceeds with named beneficiaries. The $75,000 limit applies only to property that would be subject to administration. - Debts must not exceed assets. If the estate is insolvent, the small-estate procedure is not available. Creditors must be paid through formal probate.
How this fits with other Texas procedures
Texas offers several alternatives to full administration:
- Small-estate affidavit (§ 205.001): Intestate, $75,000 threshold, court-approved. Covered by this rule. - Muniment of title (§ 257): Testate estates where no need for administration exists. The will is admitted but no executor is appointed. Useful when there are no debts other than secured debts. - Independent administration (§ 401): Full probate but with minimal court supervision. Texas's default for testate estates and available for intestate estates with court permission. - Dependent administration: Court-supervised probate. Used when independent administration is not available or appropriate.
The small-estate affidavit is the simplest of these procedures but has the narrowest applicability — it requires intestate death, modest estate size, and solvent estate.
What you can do about it
For a survivor of a Texas decedent:
1. Confirm the decedent died intestate. If a will exists, the small-estate affidavit is not available. 2. Calculate the estate value. Total all property excluding homestead and exempt property. If the total exceeds $75,000, the small-estate affidavit is not available; consider independent administration instead. 3. Confirm solvency. Estate assets must exceed estate debts (excluding debts secured by homestead and exempt property). 4. Wait at least 30 days after death. 5. Prepare the affidavit. Texas's standard form is available from the Texas Office of Court Administration and county probate courts. The affidavit must include detailed information about the decedent, family, debts, and property. 6. Obtain signatures from all distributees and two disinterested witnesses. 7. File the affidavit with the probate court. Court filing fees apply. 8. Wait for court approval. Approval typically takes 2-8 weeks depending on the court's caseload. 9. Use the approved affidavit to transfer property. Banks, employers, and other property holders accept the court-approved affidavit and release the decedent's property.
For estate planning, structuring a Texas estate to fit within the small-estate affidavit threshold is rarely the goal. Other procedures (muniment of title for testate estates, independent administration for larger or testate estates) are usually more appropriate.
Who this affects most
The Texas small-estate affidavit is most relevant for:
- Survivors of Texas decedents who died intestate with modest estates - Households where the decedent had no will and limited assets outside the homestead - Heirs without complex family disputes (the affidavit requires all distributees' signatures) - Solvent estates where formal administration would be disproportionate to the value at stake
For Texas decedents with wills, with larger estates, or with complex family structures, other procedures are usually more appropriate. The small-estate affidavit fills a narrow but useful niche in the Texas probate system.