Small estate checker for Texas
Enter the date of death and what the person owned. The page adds what the state counts and compares it with the limit for that date. It does not decide anything.
The limits this checker uses
These come from the state's law as we checked it. The checker picks the row that matches the date of death you enter.
Small Estate Affidavit (Texas Estates Code chapter 205)
30 days after the death.
Also in Texas (not tested here)
These procedures have their own rules, so the checker does not test them. See the state page.
- Probate of Will as Muniment of Title (Estates Code chapter 257)
- Collection of a deceased spouse's final paycheck by affidavit
What counts toward the limit in Texas
Add up the value, on the date of the affidavit, of the property that would go through probate. Leave out the homestead and exempt personal property that could be set aside for the surviving spouse and children, and leave out property that passes outside probate. The total must be $75,000 or less and must be more than the known debts (not counting debts secured by the homestead or exempt property).
Law: Tex. Estates Code secs. 205.001, 205.009, 353.051; Prop. Code 42.001-42.002
| Kind of property | How it is treated | Details |
|---|---|---|
Bank accounts in the person's name alone | Counts | Bank accounts in the person's name alone, with no payable-on-death beneficiary, count. Law: Estates Code 205.001 |
Joint or payable-on-death (POD) bank accounts | Left out | Payable-on-death accounts, and joint accounts with a signed right-of-survivorship agreement, belong to the survivor or beneficiary and are left out. In Texas a joint account passes to the other owner only if there is a written survivorship agreement signed by the person who died. Law: Estates Code 113.151, 113.152 |
Cars and other vehicles | Left out up to $100,000 | If the person left a surviving spouse, a minor child, an unmarried adult child living with the family, or an incapacitated adult child, one car or other motor vehicle for each family member who holds a driver's license (or who relies on someone else to drive for them) is exempt property and is left out. The exempt personal property together cannot be worth more than $100,000 for a family ($50,000 for a single adult). If none of those family members survive, the vehicle counts. A vehicle can also be transferred with the DMV heirship affidavit. Law: Estates Code 205.009, 353.051; Prop. Code 42.001(a), 42.002(a)(9) |
Boats and mobile or manufactured homes | Not clear | Boats and motor vehicles used in a trade or profession are exempt property. A manufactured home that is the homestead is treated as the homestead. The law does not name other boats or mobile homes. Law: Prop. Code 42.002(a)(4) |
Real estate in Texas | Counts | Texas real estate other than the homestead counts toward the value, but the small estate affidavit cannot transfer title to it. Only the homestead can pass by the affidavit, and only if it is the only real property. Law: Estates Code 205.006, 205.008(b) |
Main home (primary residence) | Left out | The homestead is left out of the $75,000 only when it could be set aside for a surviving spouse or minor children. If there is no surviving spouse or minor child, the home counts. If it is the only real property, the approved affidavit can transfer its title once recorded in the county deed records. Law: Estates Code 205.001(3), 205.006, 205.009, 353.051 |
Real estate in another state | Not clear | The law does not say how real estate in another state is treated. Law: Estates Code 205.001 |
Unpaid wages owed to the person | Has its own procedure | A surviving spouse can collect the final paycheck, including sick and vacation pay, by affidavit to the employer, if no executor or administrator has been appointed. Law: Estates Code 453.004 |
Military pay owed to the person | Not clear | The law does not separately address military pay owed to the person. Law: Estates Code 205.001 |
Life insurance or retirement money paid to a named person | Left out | Life insurance and retirement benefits paid directly to a named beneficiary pass outside probate and are left out. |
Life insurance or retirement money paid to the estate | Not clear | The law does not clearly say whether insurance or retirement money payable to the estate counts toward the $75,000. Law: Estates Code 205.009; Prop. Code 42.0021 |
Property in a living trust | Left out | Property in a trust passes outside probate and is left out. |
Property owned jointly with right of survivorship | Left out | Property held with a right of survivorship passes to the surviving owner and is left out. |
Property going to a surviving spouse | Not clear | The surviving spouse already owns half of the community property. The person's half of community property and their separate property are part of the estate and pass under the inheritance rules; the law does not say whether property passing to the spouse is left out of the $75,000. Law: Estates Code 201.002, 201.003, 453.002 |
Stocks, bonds and brokerage accounts | Counts | Stocks, bonds and brokerage accounts in the person's name alone, with no transfer-on-death beneficiary, count. Law: Estates Code 205.001 |
Furniture, jewelry and other belongings | Left out up to $100,000 | If the person left a surviving spouse, a minor child, an unmarried adult child living with the family, or an incapacitated adult child, home furnishings, family heirlooms, clothing, some jewelry, two firearms, sports equipment, pets and similar items are exempt property and are left out. The exempt personal property together cannot be worth more than $100,000 for a family ($50,000 for a single adult), and jewelry no more than 25% of that. If none of those family members survive, these items count. Law: Estates Code 205.009, 353.051; Prop. Code 42.001(a), 42.002(a) |
Source: Official page
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
- Wait until at least 30 days after the death.
- List every asset and debt and mark which assets are exempt.
- Fill in the affidavit (the TexasLawHelp.org form or your county's form).
- All heirs with legal capacity and two disinterested witnesses swear to it before a notary.
- File it with the county clerk of the court that handles probate and pay the filing fee.
- 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.
- 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
Bank accounts after a death in Texas
Money in a payable-on-death account, or in a joint account with a written right-of-survivorship agreement signed by the person, belongs to the beneficiary or surviving owner. A joint account without that agreement does not automatically pass to the other owner. For an account in the person's name alone, the heirs can use a court-approved small estate affidavit (if there was no will) or a muniment of title order (if there was a will), or open an administration.
Law: Tex. Estates Code secs. 113.151, 113.152, 205.004, 205.007, 257.102
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.
- TexasLawHelp.org (Texas Legal Services Center): legal help directory and clinics
- State Bar of Texas Lawyer Referral & Information Service
- TexasLawHelp.org: Small Estate Affidavits
- TexasLawHelp.org: Transferring the deceased's property without going to court
- TexasLawHelp.org: Small estates (transferring property when someone dies)
- LawHelp.org
- Legal Services Corporation (LSC) - Find legal aid
- Eldercare Locator · 1-800-677-1116
- Consumer Financial Protection Bureau (debt collection and mortgage complaints) · (855) 411-2372