When a loved one passes away in Texas, many families assume they must go through a costly and time-consuming probate process. In reality, Texas law provides a simplified alternative for smaller estates: the Small Estate Affidavit (SEA).
Under the right circumstances, a Small Estate Affidavit allows heirs to transfer property and access assets without opening a full probate case. However, strict legal requirements apply, and mistakes can delay or invalidate the process.
This article explains how Small Estate Affidavits work under Texas law, who qualifies, and when professional legal help is critical.
What Is a Small Estate Affidavit in Texas?
A Small Estate Affidavit is a sworn legal document that allows heirs to collect and distribute a deceased person’s assets without appointing an executor or administrator.
Texas authorizes this procedure under Texas Estates Code § 205.001.
The statute allows heirs to bypass traditional probate when:
“The value of the estate, excluding homestead and exempt property, does not exceed $75,000.”
— Tex. Estates Code § 205.001(a)
When properly approved by the court, the affidavit serves as legal authority to transfer qualifying property.
When Can You Use a Small Estate Affidavit?
Not every estate qualifies. To use a Small Estate Affidavit in Texas, all of the following must be true:
1. No Valid Will Exists
Small Estate Affidavits are available only in intestate cases, meaning:
- The deceased left no valid will, and
- Texas intestacy laws control distribution.
If a will exists, this procedure is unavailable.
2. The Estate Is Below the Statutory Limit
The estate must be worth $75,000 or less, excluding:
- Homestead property, and
- Exempt property (such as certain personal property and vehicles).
See Tex. Estates Code § 205.001(a).
3. No Probate Administration Is Pending
There must be no pending probate proceeding, and no necessity for formal administration.
If creditor issues, business interests, or disputes exist, the court will usually require full probate.
4. At Least 30 Days Have Passed
Texas law requires a waiting period:
“At least 30 days have elapsed since the decedent’s death.”
— Tex. Estates Code § 205.001(a)(2)
You cannot file immediately after death.
What Property Can Be Transferred?
A properly approved Small Estate Affidavit may be used to transfer:
✔ Bank Accounts
✔ Personal Property
✔ Vehicles (in some cases)
✔ Homestead Real Estate
Under Texas Estates Code § 205.006, the affidavit may be recorded in county property records to establish title to homestead property.
This makes SEAs especially valuable in real estate matters.
What Must Be Included in the Affidavit?
Texas law requires detailed disclosures under Estates Code § 205.002, including:
Required Contents
The affidavit must state:
- The decedent’s name and date of death
- A complete list of assets
- A complete list of debts
- Family history and heirship information
- The names and addresses of all heirs
- Each heir’s percentage share
- A statement that no will exists
- A statement that the estate qualifies
All heirs and disinterested witnesses must sign under oath.
Errors or omissions commonly lead to rejection.
How Court Approval Works
Unlike some informal estate procedures, a Texas Small Estate Affidavit requires court approval.
The process generally includes:
- Filing the affidavit with the probate court
- Paying filing fees
- Submitting supporting documents
- Judicial review
- Court order approving the affidavit
Only after approval may third parties rely on the affidavit.
Legal Effect of an Approved Affidavit
Once approved, Texas law provides strong protections.
Under Estates Code § 205.007, a person who relies on an approved affidavit in good faith is released from liability.
This means:
- Banks may release funds
- Title companies may transfer homestead property
- Third parties are protected
However, false statements expose signers to personal liability.
Common Mistakes That Cause Rejection
In practice, many Small Estate Affidavits fail due to avoidable errors:
❌ Underestimating Estate Value
❌ Failing to List Creditors
❌ Incorrect Heirship Information
❌ Missing Signatures
❌ Improper Property Classification
❌ Attempting to Transfer Non-Homestead Real Estate
Courts regularly deny affidavits that do not strictly comply with the statute.
When a Small Estate Affidavit Is Not Enough
Even if the estate appears “small,” an SEA may be inappropriate when:
- The deceased owned rental property
- Business interests exist
- Creditor disputes are likely
- Family conflicts are present
- Title defects exist
- Federal tax issues arise
In these situations, independent administration or muniment of title may be safer.
Tax Considerations
Although most small estates do not owe federal estate tax, other tax issues may arise, including:
- Final income tax returns
- Capital gains issues on sold property
- Basis documentation
- Unreported income
Improper handling can create future IRS problems for heirs.
Why Legal Guidance Matters
While Small Estate Affidavits are designed to simplify probate, they are still technical legal filings.
Mistakes can result in:
- Rejected filings
- Clouded title
- Personal liability
- Delayed access to funds
- Future litigation
An attorney ensures compliance with:
- Texas Estates Code
- Local probate rules
- Real estate recording requirements
- Tax considerations
How a Texas Attorney Can Help
An experienced probate and real estate attorney can:
✔ Evaluate eligibility
✔ Prepare compliant affidavits
✔ Handle court filings
✔ Coordinate with banks and title companies
✔ Resolve creditor issues
✔ Protect heirs from liability
This often saves time and money in the long run.
Final Thoughts: Small Estate Affidavits Can Be Powerful—If Done Right
Texas Small Estate Affidavits offer families a valuable shortcut through probate—but only when statutory requirements are strictly followed.
When used properly, they can:
- Avoid full probate
- Reduce costs
- Speed up distributions
- Preserve family property
When done incorrectly, they create long-term legal headaches.
If you are considering a Small Estate Affidavit in Texas, speaking with a qualified attorney before filing is often the smartest first step.
At David C. Barsalou, Attorney at Law, PLLC, we help clients navigate business, family, tax, estate planning, and real estate matters ranging from document drafting to litigation with clarity and confidence. If you’d like guidance on your situation, schedule a consultation today. Call us at (713) 397-4678, email barsalou.law@gmail.com, or reach us through our Contact Page. We’re here to help you take the next step.
