What to gather for a small estate in Texas

Pick a procedure and check off what you already have. Download or print the list to take with you.

Papers most holders ask for
Papers for this procedure: Small Estate Affidavit (Texas Estates Code chapter 205)
Other formats

Your checklist

Small Estate Affidavit (Texas Estates Code chapter 205)

A sworn statement by all the heirs and two disinterested witnesses, filed with the county court that handles probate. After the judge approves it, the heirs give certified copies to banks and others who hold the person's property. It can be used only if the person died without a will.

Limit

Up to $75,000

The estate's assets, not counting the homestead and exempt property, cannot be worth more than $75,000 on the date of the affidavit. Those assets must also be worth more than the person's known debts, not counting debts secured by the homestead or exempt property.

What counts

The value of the estate's assets on the date of the affidavit, not counting the homestead and exempt personal property that could be set aside for the surviving spouse and children. The assets (without homestead and exempt property) must also be worth more than the known debts (not counting debts secured by the homestead or exempt property).

Waiting period

At least 30 days must have passed since the death. No petition to appoint an executor or administrator can be pending or granted.

Who can use it

Every heir (distributee) who has legal capacity must swear to the affidavit, plus two disinterested witnesses. For a minor heir, the natural guardian or next of kin may sign if the facts warrant; for another incapacitated heir, the guardian. It is only for a person who died without a will.

Court or where to file

The clerk of the court that has jurisdiction and venue of the estate, usually in the county where the person lived (county court, county court at law or statutory probate court). Some courts hold a hearing; ask the clerk.

Notary

The affidavit must be sworn to (signed under oath before a notary or other officer) by each heir and both witnesses.

Papers to attach
  • Copy of the death certificate
  • List of all known assets and debts, marking which assets are claimed as exempt
  • Name and address of each heir
  • Family history facts showing who the heirs are
  • Legal description of the homestead, if it is transferred by the affidavit
  • If the person received Medicaid benefits on or after March 1, 2005: the Medicaid Estate Recovery Program claim listed as a debt, or proof there is no claim
Steps
  1. Wait until at least 30 days after the death.
  2. List every asset and debt and mark which assets are exempt.
  3. Fill in the affidavit (the TexasLawHelp.org form or your county's form).
  4. All heirs with legal capacity and two disinterested witnesses swear to it before a notary.
  5. File it with the county clerk of the court that handles probate and pay the filing fee.
  6. After the judge approves it, get certified copies from the clerk and give one to each bank, company or person that holds the property or owes money to the estate.
  7. If the homestead is transferred, record the approved affidavit in the deed records of the county where the home is.
Fee

A filing fee applies in every county; the amount is set by each county, so ask the clerk. Recording in the deed records has its own county fee.

If you can't pay

If you cannot afford court costs, you can file a Statement of Inability to Afford Payment of Court Costs.

Debts and responsibility

The heirs who receive property must answer to anyone with a prior right to it and account to any executor or administrator appointed later. Everyone who signed the affidavit, including the witnesses, is liable for any damage or loss caused by a payment or transfer made in reliance on it.

What the bank or holder must do

A person who pays, delivers or transfers property under an approved affidavit is released from liability as if they had paid an executor or administrator, and does not have to check the truth of the statements. If the holder refuses, the heirs can sue to recover the property on proof of the facts stated in the affidavit.

Law: Tex. Estates Code secs. 205.001-205.009, 353.051; Prop. Code 42.001-42.002

Source: Official page

Death certificates in Texas

Immediate family (child, parent, brother or sister, grandparent, spouse), a guardian or a legal representative can order a certified copy online, by mail or in person. Others must show a direct, tangible interest. From DSHS, the first copy is $20 and each additional copy ordered at the same time is $3.

Law: 25 Tex. Admin. Code 181.1

Where to get it
Texas Department of State Health Services (DSHS), Vital Statistics Section, or the local registrar or county clerk
Official page
Official page

Car or vehicle title after a death in Texas

If no administration is needed, the heirs can transfer a Texas vehicle with the Affidavit of Heirship for a Motor Vehicle (VTR-262), signed by the heirs before a notary, plus the Application for Texas Title and/or Registration, filed at the county tax assessor-collector's office. If there is a surviving spouse, only the spouse signs, unless the person had children with someone else; then those children also sign. With no spouse, all the person's children sign. If an executor or administrator was appointed, they sign the title instead and attach letters or the probate order.

Law: Tex. Transp. Code secs. 501.031, 501.0315, 501.074, 501.138; Estates Code ch. 115

Source: Form 130-U

Agency
Texas Department of Motor Vehicles (TxDMV), through the county tax assessor-collector
Form
VTR-262 Affidavit of Heirship for a Motor Vehicle
Fee

The county tax office charges the title application fee ($33 in some counties with air-quality programs, $28 in other counties) and any registration fees.

Transfer-on-death title

An owner can name one beneficiary on the title (Beneficiary Designation for a Motor Vehicle, VTR-121). After the death, the beneficiary applies for a new title within 180 days with proof of death. Two or more joint owners can also sign a rights of survivorship agreement (VTR-122); the survivor then transfers the vehicle with a copy of the death certificate.

Source: Official page

Surviving spouse in Texas

Texas is a community property state: the surviving spouse already owns half of the community property. If the person died without a will and all of their children are also the surviving spouse's children (or there are no children), the person's half of the community property passes to the spouse and no administration of it is needed; the spouse can collect community claims and manage community property. The spouse can collect the final paycheck by affidavit. In an administration, the homestead and exempt property are set aside for the spouse and minor children, with a family allowance for one year's support.

Related pages

Free help in Texas

A court self-help center or a legal aid office can check whether the estate qualifies, free of charge or at low cost.