Small Estate Affidavit in Texas: When It Fits

What is a small estate affidavit in Texas?

A small estate affidavit is a sworn statement filed with the clerk of the court that has jurisdiction over the estate. If the judge approves it, the people who inherit the intestate estate, the distributees, take it without waiting for a court to appoint a personal representative (Texas Estates Code §205.001, §205.003, read 2026-10-27).

The statute applies to "the estate of a decedent who dies intestate" and requires 30 days since the death, no petition to appoint a personal representative pending or granted, and assets excluding homestead and exempt property no greater than $75,000 (Texas Estates Code §205.001, read 2026-10-27). It is not a will substitute or a finding of heirship, and each signer is liable for damage or loss when someone relies on it (Texas Estates Code §205.008(a), §205.007(c), read 2026-10-27).

What counts toward the small estate limit?

The limit counts estate assets on the date of the affidavit, "excluding homestead and exempt property" (Texas Estates Code §205.001(3), read 2026-10-27). TexasLawHelp says a qualifying homestead, exempt personal property and non-probate property do not count (TexasLawHelp, Small Estate Affidavits, read 2026-10-27). The estate must also be solvent: assets excluding homestead and exempt property must exceed known liabilities, and debts secured by homestead or exempt property are not counted (TexasLawHelp, Small Estate Affidavits, read 2026-10-27).

Does a small estate affidavit transfer the house?

Usually not. The chapter says that, "except as provided by Section 205.006," it "does not transfer title to real property" (Texas Estates Code §205.008(b), read 2026-10-27). The one exception is narrow: if the decedent's homestead is the only real property in the estate, title to the homestead may be transferred under an affidavit recorded in the county deed records where the homestead is located (Texas Estates Code §205.006(a), read 2026-10-27).

The statute defines "homestead" here as property eligible to be set aside under §353.051, the homestead "for the use and benefit of the decedent's surviving spouse and minor children" (Texas Estates Code §205.009, §353.051(a), read 2026-10-27). Harris County's form says the affidavit "may not be used to transfer title to real property other than the decedent's homestead," and the homestead "only passes to a surviving spouse or minor children" (Harris County Clerk Form I-02-22, read 2026-10-27).

So if the house is not the homestead, or passes to adult children, the affidavit cannot transfer it, and the title company decides whether to insure a sale. If the affidavit cannot reach the house, read selling a house in probate in Texas or how an affidavit of heirship works in Texas.

What has to be in the small estate affidavit?

The affidavit is sworn to by two disinterested witnesses, by each distributee with legal capacity, and, if warranted, by the natural guardian or next of kin of a minor distributee or the guardian of an incapacitated one (Texas Estates Code §205.002, read 2026-10-27). It lists all known estate assets and liabilities, marking the assets claimed as exempt, each distributee's name and address, and the family history facts showing each distributee's right (Texas Estates Code §205.002, read 2026-10-27). Harris County's form combines the affidavit, a heirship affidavit completed by the two disinterested witnesses, and the judge's order (Harris County Clerk Form I-02-22, read 2026-10-27).

How do you file a small estate affidavit in Harris County?

1. Wait 30 days after the death before signing or filing, and use the county's small estate affidavit form; the county says no form should be completed or filed until then (Harris County Clerk Form I-02-22, read 2026-10-27).
2. Sign before a notary: every distributee with legal capacity, a guardian or next of kin for a minor or incapacitated distributee, and two disinterested witnesses (Texas Estates Code §205.002, read 2026-10-27).
3. File with the Harris County Clerk's Probate Department, 201 Caroline, Suite 800, Houston, Texas 77002, weekdays 8:00 a.m. to 4:30 p.m., with a late filing drop box outside; by mail, a cashier's check or money order for the $360 fee goes to P.O. Box 1525, Houston, Texas 77251-1525 (Harris County Clerk, Probate Courts, read 2026-10-27; Harris County Clerk Form I-02-22, read 2026-10-27).
4. After approval, send a certified copy of the order with the affidavit attached to each distributee and to each person who owes the estate money or holds its property (Texas Estates Code §205.004, read 2026-10-27).
5. For a homestead, record the approved affidavit in the county deed records where the homestead is (Texas Estates Code §205.006(a), read 2026-10-27).

What happens after the judge approves it?

A person who pays or transfers estate property under an approved affidavit is released as if paying a personal representative and need not inquire into its truth (Texas Estates Code §205.007(a), (b), read 2026-10-27). The distributees remain answerable to anyone with a prior right or a later-appointed personal representative, and a refusal to pay or transfer can be challenged in court (Texas Estates Code §205.007(b), (d), read 2026-10-27).

What if the estate does not qualify?

The affidavit is unavailable if the decedent left a will, the estate exceeds $75,000 outside homestead and exempt property, is insolvent, owns other real property, or the homestead passes to anyone other than a surviving spouse or minor children (Texas Estates Code §205.001, §205.008, read 2026-10-27; TexasLawHelp, Small Estate Affidavits, read 2026-10-27). TexasLawHelp adds that a missing heir, an heir who will not sign, or a minor heir can also block it (TexasLawHelp, Small Estate Affidavits, read 2026-10-27).

The routes that remain:

• A will can be probated, sometimes as a muniment of title when the estate owes no unpaid debt except a debt secured by real estate (Texas Estates Code §257.001, read 2026-10-27); read muniment of title in Texas.
• With no will, an affidavit of heirship is a sworn family history recorded in the county deed records, and the title company decides whether to accept it (Texas Estates Code §203.001, read 2026-10-27); read how an affidavit of heirship works in Texas.
• A court administration may be needed to sell or clear the house, or a court can determine heirship (Texas Estates Code §202.201, read 2026-10-27). Read selling a house in probate in Texas.

How does HTX Sell My House fit in?

If the house is in the Houston ZIP codes we work in and the family has decided to sell, there are two ways with us. We buy it: we make an offer and close once the title company can insure the sale, and no repair is needed to get a number. We take it to the builders for you: for an older house on a good lot, we bring it to the builders buying there and you take the best offer, with one contract. Either way you pay nothing to talk to us, and you see the buyer's name before you sign.

Not us, and worth comparing: a listing agent, other cash buyers, instant-offer companies, or keeping the house. If another route nets you more, we say so.

An assistant answers the phone and takes the details, and Susan or Alex calls back within one business day: (346) 752-6836. Tell us about the house.

This page is general information, not legal advice. HTX Sell My House is not a law firm, and a probate attorney and the title company decide what applies to your estate.

Terms used on this page

• Small estate affidavit: a sworn statement filed with the probate court that lets distributees take an intestate estate without a personal representative (Texas Estates Code §205.001, read 2026-10-27).
• Intestate: died without a valid will.
• Distributee: a person entitled to take from the estate.
• Personal representative: a court-appointed executor or administrator.
• Homestead: the place the decedent lived and owned, if it would be set aside for a surviving spouse and minor children (Texas Estates Code §205.009, §353.051, read 2026-10-27).

Questions people ask