The $75,000 limit, and what actually counts
Value of estate assets on the date of the affidavit, excluding the homestead and exempt property (Est. Code § 205.001(3)). Non-probate assets that pass outside the estate (POD/TOD accounts, joint-with-survivorship accounts, life insurance and retirement benefits with a living beneficiary) are not estate assets and are not counted. Liabilities secured by the homestead and exempt property are likewise disregarded. Separate independent test in the opening clause of § 205.001: the estate assets (excluding homestead and exempt property) must exceed the known liabilities of the estate (excluding liabilities secured by homestead and exempt property), i.e. the estate must be solvent.
What doesn't count toward the limit
This is where most people wrongly rule themselves out. In Texas, these are left out of the calculation:
- Payable-on-death and transfer-on-death accounts
- Life insurance with a living named beneficiary
- Retirement accounts with a living named beneficiary
- The homestead
- Statutory exempt property and family allowances
- Liens and encumbrances on estate property
- Vehicles, where separately excluded
The 30-day waiting period
30 days, counted from the date of the decedent's death. Cite: Tex. Est. Code sec. 205.001(1). '30 days have elapsed since the date of the decedent's death.' The 30 days must have run before the affidavit is filed. There is no separate additional waiting period after filing, but the judge's approval under sec. 205.003 is a further gate and in practice adds days-to-weeks depending on county docket.
Who can sign the affidavit
Every distributee (heir at law) of the intestate estate who has legal capacity must sign and swear to the affidavit; the natural guardian or the guardian of the estate signs for any minor or incapacitated distributee. In addition, two disinterested witnesses must sign and swear to the affidavit (Est. Code § 205.002(a)). All signatures are sworn before a notary or other officer authorized to administer oaths. There is no "any one successor may sign" rule, a missing heir's signature defeats the affidavit.
Intestate only. Sec. 205.001 opens with 'the distributees of the estate of a decedent who dies intestate,' and sec. 205.008(a) provides the chapter 'does not affect the disposition of property under a will or other testamentary document.' If a will exists it cannot be filed first and then a small estate affidavit used: the will must be probated in the ordinary way or, where there is no unpaid debt other than one secured by real property, admitted as a muniment of title under Est. Code ch. 257. Note the practical trap: many counties require the affiants to affirmatively state that no will exists and that no will has been located; a later-discovered will can undo the transfer.
The affidavit must be signed in front of a notary and witnessed by 2 disinterested people, meaning people who will not inherit anything. Most banks and UPS Stores have a notary; many charge under $15.
Can it transfer a house or land in Texas?
Real property does not generally pass. Tex. Est. Code sec. 205.008(b): 'Except as provided by Section 205.006, this chapter does not transfer title to real property.' The single exception is the homestead, under sec. 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.' There is no separate companion real-property affidavit with its own dollar threshold in Texas (unlike CA Prob. Code sec. 13200). Texas has no analogue. Requirements/effects: (1) the homestead must be the only real property in the estate; (2) the homestead's value is excluded from the $75,000 cap; (3) the approved affidavit must be recorded in the deed records of a county in which the homestead is located; (4) sec. 205.006(b) gives a bona fide purchaser for value who relies on the recorded affidavit title free of the interests of heirs not disclosed in it (subject to creditor claims against the estate); (5) sec. 205.006(c) lets an undisclosed heir recover from an heir who received consideration on a transfer for value. Important practice warning: title companies frequently will not insure title acquired solely through a ch. 205 small estate affidavit, so an affidavit-transferred homestead is often unmarketable in practice; heirs intending to sell usually need a ch. 202 determination of heirship or a muniment of title instead. For any non-homestead realty, the correct vehicles are ch. 202 (Determination of Heirship, judicial), ch. 257 (Muniment of Title, testate only), or full administration.
Affidavit of heirship in Texas
Yes, and it is a different instrument from the ch. 205 small estate affidavit. Do not conflate them. Governing law: Tex. Est. Code sec. 203.001 ('Recorded Statement of Facts as Prima Facie Evidence of Heirship') and sec. 203.002 ('Form of Affidavit Concerning Identity of Heirs,' a 16-paragraph statutory form). Critical and widely misunderstood: an affidavit of heirship does not transfer title and is not a conveyance and not a court order. It is only evidence placed in the chain of title. Under sec. 203.001 a statement of facts concerning heirship, made in an affidavit or other instrument legally executed and acknowledged or sworn to before and certified by an officer authorized to take acknowledgments or oaths (or contained in a judgment of a court of record), and recorded in the deed records of a county where the real property is located, becomes prima facie evidence of the facts stated only after it has been of record for five years or more. Before five years it is merely a recorded statement with no statutory evidentiary presumption; even after five years the presumption is rebuttable. Execution: sworn and notarized; the sec. 203.002 statutory form is signed by the affiant and sworn to and subscribed before a notary public: the statutory form itself contains no witness signature lines, though prevailing Texas title-company practice is to have two disinterested affiants (persons who knew the decedent and the family but who take nothing from the estate) execute separate affidavits, and title underwriters commonly impose that requirement plus their own five-year-of-record seasoning. Record it in the real property (deed) records of every county where the decedent owned land. When actual, adjudicated title is needed, the correct instrument is a ch. 202 determination of heirship: a judicial proceeding with an attorney ad litem appointed for unknown/incapacitated heirs, producing a court judgment declaring heirship, which does bind and is what title companies accept. Product copy must never tell a user that recording an affidavit of heirship 'transfers the house to you.'
An affidavit of heirship does not transfer title
This trips up more people than anything else in Texas. The affidavit of heirship is evidence of who the heirs are. It goes into the county property records so a future buyer or title insurer can see the chain of ownership. It does not by itself move the deed into your name.
How to use a small estate affidavit in Texas
- 1
Confirm you're under the limit and past the wait
Add up the property that passes through the estate and check it against the $75,000 ceiling. Value of estate assets on the date of the affidavit, excluding the homestead and exempt property (Est. Code § 205.001(3)). Non-probate assets that pass outside the estate (POD/TOD accounts, joint-with-survivorship accounts, life insurance and retirement benefits with a living beneficiary) are not estate assets and are not counted. Liabilities secured by the homestead and exempt property are likewise disregarded. Separate independent test in the opening clause of § 205.001: the estate assets (excluding homestead and exempt property) must exceed the known liabilities of the estate (excluding liabilities secured by homestead and exempt property), i.e. the estate must be solvent.
- 2
Gather the documents
You'll need certified copies of the death certificate: order at least three, since institutions often keep one: plus account numbers, the vehicle title or VIN, and the names and addresses of every heir.
- 3
Complete the affidavit
Fill in Small Estate Affidavit (Texas Estates Code Chapter 205), listing the decedent, the heirs and their relationships, the assets and their values, and the known debts.
- 4
Sign it in front of a notary
Sign before a notary, together with 2 disinterested witnesses, people who inherit nothing under the estate.
- 5
File it with the probate court
Court filing and judicial approval are mandatory. Texas is the classic exception to the UPC pattern. The affidavit is filed with the clerk of the court that has probate venue/jurisdiction, in the county of the decedent's domicile/fixed place of residence at death (Est. Code sec. 205.001(4)): in most counties the constitutional county court, in others a statutory county court at law or a statutory probate court. The judge then examines it under sec. 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.' Approval is discretionary, not ministerial. Upon approval an order approving the small estate affidavit is entered and the clerk issues certified copies; the affidavit is then maintained as a local government record under Subtitle C, Title 6, Local Government Code, or, in counties not on that system, recorded in a county clerk's book labeled 'Small Estates' with an index showing the decedent's name and any land involved, upon payment of the legal recording fee (sec. 205.005). Filing fees are set by county, not by statute, commonly in the roughly $250-$450 range for the affidavit filing plus certified-copy and recording charges; verify with the specific county clerk. Some counties set a hearing; others approve on the papers.
- 6
Present it to whoever holds the property
Sec. 205.004 obliges the distributees to furnish a court-certified copy of the approved affidavit to any person who owes money to the estate, has custody or possession of estate property, or acts as a registrar, fiduciary or transfer agent of or for an interest, indebtedness, property or right of the estate. Sec. 205.007 then supplies the safe harbor: a person making a payment, delivery, transfer, or issuance of property under the affidavit is released to the same extent as if the payment/delivery/transfer/issuance had been made to a personal representative of the decedent; the person is not required to inquire into the truth of any statement in the affidavit and is not required to see to the application of the affidavit. Enforcement: if a person to whom the affidavit is delivered refuses to pay, deliver, transfer or issue the property, the property may be recovered in an action brought for that purpose by or on behalf of the distributees. Distributees receiving property remain answerable to any person having a prior right and accountable to any later-appointed personal representative. Practical note: because Texas requires a judge's approval, banks and transfer agents generally will not accept an unapproved or uncertified copy, always present the clerk-certified copy bearing the approval.
Where to take the signed affidavit
The bank
Sec. 205.004 obliges the distributees to furnish a court-certified copy of the approved affidavit to any person who owes money to the estate, has custody or possession of estate property, or acts as a registrar, fiduciary or transfer agent of or for an interest, indebtedness, property or right of the estate. Sec. 205.007 then supplies the safe harbor: a person making a payment, delivery, transfer, or issuance of property under the affidavit is released to the same extent as if the payment/delivery/transfer/issuance had been made to a personal representative of the decedent; the person is not required to inquire into the truth of any statement in the affidavit and is not required to see to the application of the affidavit. Enforcement: if a person to whom the affidavit is delivered refuses to pay, deliver, transfer or issue the property, the property may be recovered in an action brought for that purpose by or on behalf of the distributees. Distributees receiving property remain answerable to any person having a prior right and accountable to any later-appointed personal representative. Practical note: because Texas requires a judge's approval, banks and transfer agents generally will not accept an unapproved or uncertified copy, always present the clerk-certified copy bearing the approval.
The DMV
Separate, non-court procedure. Texas Department of Motor Vehicles (TxDMV), processed at the county tax assessor-collector's office. Form VTR-262, 'Affidavit of Heirship for a Motor Vehicle' (Rev. 11/20), filed together with Form 130-U 'Application for Texas Title and/or Registration.' No dollar threshold and no court approval required. Conditions per the form: there has been no administration of the estate and none is necessary; no application for administration or probate has been filed (or a court has determined no administration is necessary); the affiants are the sole and only known heirs at law. If a surviving spouse exists, that heir alone signs unless there are surviving children of the decedent by a parent other than the surviving spouse, in which case all surviving children must also sign; with no surviving spouse, all children must sign as affiants; a guardian signs for minor children and attaches Letters of Guardianship. All affiant signatures must be notarized before one notary on the same date, and the section may not be executed by power of attorney; if all heirs cannot appear before one notary on one date, or there are more than three heirs, additional copies of the form are used and all copies are submitted together. Also required as applicable: release of lien, out-of-state title/registration verification, and proof of liability insurance if registering. If the estate WAS probated, VTR-262 is not used, the executor/administrator assigns title with a certified copy of the probate proceedings or Letters attached. Related but distinct pre-death forms: VTR-121 (Beneficiary Designation for a Motor Vehicle) and VTR-122 (Rights of Survivorship Ownership Agreement).
The employer
Final wages and accrued leave can usually be claimed with the same affidavit. Ask their payroll department what they need, most have a standard process.
County by county: which form to file
Texas files the affidavit with a judge, and the biggest counties publish their own forms, most of them mandatory. Our packet contains every answer those forms ask for; in these counties you copy the answers onto the county’s form before filing. Verified against each county’s own website on July 29, 2026.
Harris County (Houston)
County form available · filing fee about $360
The Harris County Probate Courts publish their own Small Estate Affidavit form (Form I-02-22, revised April 2025) and their guidance contemplates either using it or drafting your own affidavit that meets the statutory requirements. Using the county's form is the path of least resistance: the judges see it every day. File with the Harris County Clerk's probate department along with a proposed order for the judge to sign. The Harris County Probate Courts do not require a hearing for approval of a small estate affidavit.
Dallas County (Dallas)
County form required · filing fee $360
Dallas County requires its own Small Estate Affidavit form; the court publishes it with a checklist. Transfer every answer from this packet onto the county's form exactly as written here. File with the Probate Courts Division of the Dallas County Clerk, George Allen Courts Building, 600 Commerce St., 7th floor, Dallas. The fee is due at filing.
Tarrant County (Fort Worth)
County form required · filing fee $400, including one certified copy
The Tarrant County Probate Courts publish an official Small Estate Affidavit form with instructions (the current packet was updated in 2025). Use the county's packet and fill it in from the answers here. File with the Tarrant County Clerk's probate division, 100 W. Weatherford St., room 233, Fort Worth. The published fee includes one certified copy and the posted citation.
Bexar County (San Antonio)
County form required · filing fee $360
Bexar County requires its own Small Estate Affidavit form; the probate courts publish it with a checklist that the judges apply line by line. Transfer every answer from this packet onto the county's form. File with the Bexar County Clerk's probate department in San Antonio. The fee is on the county's published probate fee schedule.
Travis County (Austin)
County form required · filing fee about $360
The Travis County Probate Court requires its own Small Estate Affidavit form by administrative order (current form dated October 2024). Do not file anything else; transfer every answer from this packet onto the court's form. File with the Travis County Clerk for the Probate Court in Austin. Certified copies of the approved affidavit run about $13 each; get one per institution.
Any other county: call the probate clerk and ask whether they require their own small estate affidavit form. Fees change; confirm the current amount when you call.
Debts and your personal liability
Yes, debts must be disclosed and the estate must be solvent. Sec. 205.002(b)(1) requires the affidavit to include 'a list of all known estate assets and liabilities,' identifying which assets are claimed as exempt. The opening clause of sec. 205.001 requires that assets (excl. homestead and exempt property) exceed known liabilities (excl. liabilities secured by homestead and exempt property). The statute does not itself prescribe a creditor-notice or claims process and does not require debts to be paid before distribution, but distributees who receive property remain answerable to persons having a prior right and are accountable to any personally-appointed representative later appointed; under sec. 205.006(b) a homestead transferred to a bona fide purchaser remains subject to creditor claims against the decedent's estate. Distributees who overstate assets or conceal heirs/liabilities are swearing falsely in a sworn court filing and expose themselves to civil liability and perjury exposure.
When you can’t use it
Texas takes the affidavit route off the table when:
- Decedent died testate (left a will). Chapter 205 is available only where the decedent 'dies intestate'; § 205.008(a) confirms the chapter does not affect disposition of property under a will. A will must instead be probated, or admitted as a muniment of title under ch. 257.
- Estate assets on the date of the affidavit, excluding homestead and exempt property, exceed $75,000 (§ 205.001(3)).
- Estate is insolvent, assets (excluding homestead and exempt property) do not exceed known liabilities (excluding liabilities secured by homestead and exempt property) (§ 205.001 opening clause).
- Fewer than 30 days have elapsed since the date of death (§ 205.001(1)).
- A petition for appointment of a personal representative is pending or has already been granted (§ 205.001(2)).
- The estate contains any real property other than the decedent's homestead. § 205.008(b) bars transfer of title to real property except a homestead under § 205.006, and § 205.006(a) permits homestead transfer only if the homestead 'is the only real property in the decedent's estate.' Out-of-state real property, mineral interests, rental property, raw land or a second home all defeat the homestead transfer (and in most counties defeat approval outright).
- The judge declines to approve, approval is discretionary ('the judge MAY approve the affidavit if the judge determines that the affidavit conforms to the requirements of this chapter,' § 205.003). Many Texas counties impose local requirements beyond the statute and routinely reject affidavits.
- Any distributee with legal capacity refuses or is unavailable to sign, or two disinterested witnesses cannot be produced (§ 205.002(a)).
- Family history / heirship cannot be pleaded with the specificity § 205.002(b)(3) requires (e.g. unknown or unlocatable heirs, disputed paternity, prior marriages with unknown children).
- Practical (non-statutory) disqualifier: many county courts will approve a homestead transfer only where the homestead passes to the surviving spouse and/or minor children; check local court practice.
If any of those apply, a probate attorney is the right call. A typical small-estate proceeding runs $1,000–$3,000 plus the court’s fee.
Texas small estate affidavit FAQ
Statute and sources
Last verified July 29, 2026. None found in the last three years. The most recent amendment to Est. Code sec. 205.001 shown in the section's history is Acts 2017, 85th Leg., R.S., ch. 844 (H.B. 2271), sec. 12, eff. Sept. 1, 2017. The chapter was originally enacted by Acts 2009, 81st Leg., R.S., ch. 680 (H.B. 2502), sec. 1, eff. Jan. 1, 2014, recodifying repealed Probate Code sec. 137 et seq. No amendment from the 88th Legislature (2023) or the 89th Legislature (2025) affecting the $75,000 cap, the 30-day period, or the homestead limitation was located; a code compilation stated current as of January 1, 2026 (which post-dates the 89th Legislature's Sept. 1, 2025 effective dates) still shows $75,000. Texas does not index this threshold. Unrelated caution: the TxDMV form VTR-262 in circulation is Rev. 11/20; check TxDMV for a newer revision before shipping a filled PDF.
- Tex. Est. Code § 205.001 (Entitlement to Estate Without Appointment of Personal Representative)
- Tex. Est. Code § 205.002 (Affidavit Requirements)
- Tex. Est. Code § 205.003 (Examination and Approval of Affidavit)
- Tex. Est. Code § 205.004 (Copy of Affidavit to Certain Persons)
- Tex. Est. Code § 205.005 (Affidavit as Local Government Record)
- Tex. Est. Code § 205.006 (Title to Homestead Transferred Under Affidavit)
- Tex. Est. Code § 205.007 (Liability of Certain Persons)
- Tex. Est. Code § 205.008 (Effect of Chapter)
- Tex. Est. Code § 203.001 (Recorded Statement of Facts as Prima Facie Evidence of Heirship)
- Tex. Est. Code § 203.002 (Form of Affidavit Concerning Identity of Heirs)
- Tex. Est. Code ch. 202 (Determination of Heirship)
- Tex. Transp. Code ch. 501 (motor vehicle certificate of title; TxDMV Form VTR-262)
- statutes.capitol.texas.gov(opens in a new tab)
- texas.public.law(opens in a new tab)
- texas.public.law(opens in a new tab)
- texas.public.law(opens in a new tab)
- texas.public.law(opens in a new tab)
- texas.public.law(opens in a new tab)
- texas.public.law(opens in a new tab)
- texas.public.law(opens in a new tab)
What we're less sure about
- The Texas Legislature's own server (statutes.capitol.texas.gov) returned only a JavaScript navigation shell to automated fetching, so the statutory text was verified from two independent code publishers (texas.public.law and FindLaw, the latter stated current through January 1, 2026) rather than read directly off the .gov host. Recommend one manual eyeball of https://statutes.capitol.texas.gov/Docs/ES/htm/ES.205.htm before launch, and re-verification after each odd-year legislative session (next: 90th Legislature, convening January 2027, with effective dates typically September 1, 2027).
- Web search quota was exhausted during this session, so a targeted bill-level search of the 89th Legislature (2025) for any Chapter 205 amendment could not be run. The January 1, 2026 currency date on the compiled code is the substitute check, and it is a good one, but it is not a bill-level confirmation.
- Filing fees are set county-by-county and are not statutory; the roughly $250-$450 range given is indicative only and must be surfaced to users as 'varies by county. Call the clerk,' never as a fixed number.
- Whether a county will approve a homestead transfer where the homestead does NOT pass to a surviving spouse or minor children varies by local practice; sec. 205.006 does not on its face impose that limit, but TexasLawHelp and common county practice describe it. Treat as a local-practice caveat, not a statutory rule.
- Marketability of a homestead transferred under ch. 205: title underwriters frequently decline to insure on a small estate affidavit alone. This is underwriting practice, not statute, and varies by underwriter, but it is the single most common way a Texas SEA disappoints a user, and product copy should warn about it.
- Whether the two disinterested witnesses must be wholly unrelated, or merely take nothing under the estate, is not defined in sec. 205.002; counties interpret 'disinterested' with varying strictness.
- No statewide official form exists; a generated document must be reconciled against the specific county's local form and local rules, several of which demand content beyond ch. 205 (e.g. sworn statements about the absence of a will, sworn asset valuations, or specific caption formats).
Kinclaim is not a law firm and does not provide legal advice. We provide self-help software and statutory forms.