Small Estate Affidavit in Texas: Chapter 205 Rules, Limits, and Court Approval

Section 205.001 lists the conditions, and every one must be true on the day the affidavit is filed. The decedent died intestate. Thirty days have passed since the death. No petition for the appointment of a personal representative is pending or has been granted. The value of the estate assets on the date of the affidavit, excluding homestead and exempt property, does not exceed $75,000. The affidavit meets the content requirements of section 205.002, is filed with the clerk of the court that has jurisdiction and venue, is approved by the judge under section 205.003, and the distributees comply with the delivery rules in section 205.004.

Two of those conditions eliminate most families who ask about the procedure. The intestacy requirement means that a decedent who signed a will, even a will that leaves everything to the same people intestacy would, cannot use Chapter 205; the will must instead be probated as a muniment of title under Chapter 257 or through an administration. And the requirement that the estate's assets exceed its liabilities, other than debts secured by the homestead and exempt property, means an insolvent estate is not eligible either. Families in that position should compare the cost of a Texas probate against the estate's value before spending anything.

The cap is measured on the date of the affidavit, not the date of death, which lets families wait out a market dip or spend down a bank account on funeral bills before filing. The count includes the probate estate only: sole-name bank accounts, vehicles titled to the decedent alone, final wages, refunds, and personal property. It excludes property passing outside the estate, such as accounts with a pay-on-death or survivorship designation, life insurance and retirement accounts with a living beneficiary, and property held in a trust.

It also excludes two categories Texas law protects for the family. The homestead is the decedent's residence, urban or rural, that qualifies under Property Code Chapter 41, and its value does not count no matter how large it is. Exempt property is the personal property described in Estates Code section 353.051 and Property Code section 42.002: home furnishings, provisions, farming and ranching equipment, tools of the trade, clothing, jewelry within limits, two firearms, athletic equipment, one vehicle per licensed household member, pets, and similar items, up to the aggregate limit of $100,000 for a family or $50,000 for a single adult. A modest estate consisting of a house, a car, furniture, and $60,000 in a checking account therefore qualifies, because only the checking account counts.

Our nationwide guide sets out the small estate affidavit thresholds in every state; Texas is unusual in excluding the homestead but also in requiring court approval, and the trade-off is that the Texas affidavit can move title to a house while most states' affidavits cannot.

The affidavit is a compact heirship proceeding on paper. Section 205.002 requires it to be sworn to by two disinterested witnesses and by each distributee who has legal capacity, and to show that the section 205.001 conditions are met. It must list all known estate assets and liabilities, stating which assets the applicant claims are exempt, and it must give the name and address of each distributee. Most importantly, it must set out the facts of the decedent's family history that establish who the heirs are and in what shares under Texas intestacy law, Estates Code Chapter 201.

That family history is where affidavits fail. The witnesses swear to the decedent's marriages and divorces, the names of every child born or adopted (including children from earlier relationships), whether any child predeceased the decedent and left descendants, and, for a decedent without descendants, the parents and siblings. A stepchild who was never adopted is not an heir. A child of a prior marriage is. A surviving spouse's share depends on whether the property is community or separate and whether all the children are also the spouse's children, distinctions that produce different fractions under sections 201.002 and 201.003. The affidavit must also account for Medicaid: Texas probate courts require a statement of whether the decedent applied for and received Medicaid benefits on or after March 1, 2005, and if so the applicant must list the amount owed as a liability or file a Medicaid Estate Recovery Program certification, because the state can assert a claim against the estate, including a homestead passing under the affidavit.

The disinterested witnesses must have personal knowledge of the family history and must not inherit anything. Long-time neighbors, friends of the family, former coworkers, and the decedent's minister are the usual candidates. A spouse of an heir is not disinterested. Most counties publish their own form and reject anything that departs from it, and the judge reads each affidavit personally.

1. Wait 30 days from the date of death. Filing on day 29 draws an automatic rejection.
2. Complete the county's affidavit form with the asset and liability schedules, the heirship chart, and the notarized signatures of every heir with capacity and both disinterested witnesses. A parent or guardian signs for a minor heir.
3. File with the clerk of the court with probate jurisdiction in the county of the decedent's residence: the statutory probate court in the large urban counties (Harris, Dallas, Bexar, Travis, Tarrant, Collin, Denton, El Paso, Hidalgo, Galveston), the county court at law where one exists, or the constitutional county court elsewhere. Filing is through the state's eFileTexas portal. The filing fee varies by county and is generally in the range of $300 to $450 in 2025, with certified copies extra.
4. Judicial review. Section 205.003 requires the judge to approve the affidavit; there is usually no hearing, and review takes from a few days to several weeks depending on the court's docket. Judges commonly return affidavits for missing heirs, ambiguous family history, non-disinterested witnesses, and assets left off the schedule.
5. Obtain certified copies. Under section 205.004, the clerk provides certified copies of the approved affidavit, and the distributees present them to banks, the Texas Department of Motor Vehicles, employers, and other holders, who may then pay or deliver to the distributees named.
6. Record for the homestead. When the homestead passes, section 205.005 requires a certified copy of the affidavit to be recorded in the deed records of the county where the property is located, which is what puts the heirs' names in the chain of title.

A holder of property who pays in reliance on a certified copy of the approved affidavit is released to the same extent as if it had paid a personal representative, which is the incentive for banks to cooperate. The distributees themselves are not released: under section 205.007 they are liable to any person with a prior right and to creditors, up to the value received, and the affidavit is not a determination of heirship binding on anyone under section 205.008.

Section 205.006 is the provision that makes the Texas affidavit more useful than most: if the decedent's homestead is the only real property in the estate, title to the homestead may be transferred under the affidavit, and the recorded affidavit operates as the link in the chain of title. The limits are strict. The homestead must be the only real property; a decedent who also owned a rental, a vacant lot, mineral interests, or an inherited fractional interest in family land cannot use the affidavit for any of it, and the judge will reject an affidavit that lists other real estate.

The heirs also take the homestead subject to whatever attached to it. A mortgage stays. A Medicaid estate recovery claim can follow the property when no exemption applies. And a title company underwriting a later sale will examine the affidavit's family history as carefully as the judge did, sometimes more so; an affidavit with a thin heirship chart will clear the courthouse and then stall the closing years later. When there is more than one parcel, or when the home was not the decedent's homestead, the correct tool is the Texas affidavit of heirship under Chapter 203, which is recorded rather than court-approved and works for any real property, or a judicial determination of heirship under Chapter 202 when the family history is disputed.

Texas offers three abbreviated paths and families routinely pick the wrong one.

• Small estate affidavit (Chapter 205): intestate estates only, $75,000 or less excluding homestead and exempt property, court-approved, moves bank accounts and other personal property plus a homestead. Best for a decedent with no will, modest accounts, and at most a homestead.
• Affidavit of heirship (Chapter 203): no court, no dollar cap, recorded in the deed records, sworn by two disinterested witnesses, and usable for any real property, but it does not compel a bank to release accounts and only becomes prima facie evidence of heirship after five years on record. Best when the estate is mainly real estate, or when it exceeds $75,000 but consists of land the family simply needs to retitle.
• Muniment of title (Chapter 257): a will exists, there are no unpaid debts other than those secured by real estate, and no administration is needed; the court admits the will as a link in the chain of title without appointing an executor. Best when the will names who takes and the estate is mostly a house.

When none fits, the fallback is an independent administration, which in Texas is faster and cheaper than in most states but still involves letters, notice to creditors, and an inventory. The mechanics of all four are compared in our guide to every route for transferring a Texas deed after a death. For a homeowner who is still alive and planning, the same problem disappears entirely with a recorded Texas transfer on death deed under Estates Code Chapter 114 or a lady bird deed, which Texas also recognizes.

• Filing with a will in the drawer. The existence of a will, even an unprobated one, disqualifies the estate from Chapter 205. Concealing it to use the affidavit is perjury and exposes the signer to liability to the will's beneficiaries.
• Omitting a child from a prior relationship. The single most common reason judges return affidavits, and the most expensive to fix later, because the omitted heir's share vests at death regardless of the affidavit.
• Using interested witnesses. A daughter-in-law, a grandchild who inherits through a deceased parent, or a business partner owed money by the estate is not disinterested.
• Listing a second parcel. Any real property besides the homestead disqualifies the affidavit for real estate purposes, and some judges reject the whole filing rather than approve it for personal property only.
• Counting the homestead toward the cap. Families conclude a $300,000 house pushes them over $75,000 and open an unnecessary administration.
• Forgetting the Medicaid statement. Courts require it, and an inaccurate answer can expose the heirs when the state's recovery program later files a claim.
• Distributing before paying debts. Distributees remain liable to creditors up to the value received; paying the funeral home and the last medical bills first is both required and protective.
• Treating a quitclaim as a substitute. Heirs sometimes sign a quitclaim deed among themselves to "fix" title without any affidavit; the chain of title stays broken because no recorded document shows who the heirs were.

The Texas affidavit is short, but it is reviewed by a judge, sworn to by witnesses who must be chosen correctly, and built on a family history that must match Chapter 201 exactly. A licensed attorney confirms the estate qualifies, applies the homestead and exempt-property exclusions, identifies every heir and their fractional share, prepares the affidavit on the county's form with the Medicaid statement and asset schedules, and provides filing and presentation instructions for the specific court and the institutions holding the assets. When Chapter 205 does not fit, the same review identifies whether an affidavit of heirship for the real estate, a muniment of title, or a short administration is the right substitute.