Small estate
affidavits in Texas

The classic candidate: a parent dies without a will, leaving a paid-off house and a checking account with $30,000 in it. There are three adult children and no debts to speak of. Nobody needs an executor. They just need the bank to release the money and the house to be in their names.

Chapter 205 exists for exactly that family. Instead of opening an administration, the distributees file a sworn affidavit setting out the family history, the assets, the debts, and who is entitled to what. A judge approves it, and the approved affidavit becomes the authority for banks and other holders to hand over the property.

It is genuinely one of the cheapest procedures in Texas probate. It is also the one that fails most often when self-prepared.

1. The decedent died intestate. No valid will. If a will exists, Chapter 205 does not apply.
2. At least 30 days have elapsed since the date of death.
3. No petition for appointment of a personal representative is pending or has been granted.
4. Assets do not exceed $75,000, excluding the homestead and exempt property, as of the date of the affidavit.
5. Assets exceed known liabilities, excluding liabilities secured by the homestead and exempt property.
6. The affidavit contains all statutory content — a complete list of known assets and liabilities, the identity of every distributee, their relationship to the decedent, and their respective shares.
7. Sworn to by the distributees with legal capacity, and by a parent or guardian on behalf of any who lack it.
8. Sworn to by two disinterested witnesses who knew the family and can attest to the family history — people with no stake in the estate.
9. Approved by the judge and filed with the clerk.

The exclusions are the good news. Because the homestead and exempt property come out of the calculation, a family with a $400,000 paid-off house and $40,000 in the bank can still be under the $75,000 threshold. Exempt property in Texas includes a broad range of household goods, vehicles, tools of trade, and other categories.

This is where families get stuck, so it is worth stating plainly.

A small estate affidavit can transfer the homestead. It cannot transfer any other real property. Not the rent house. Not the twenty acres outside Conroe. Not the beach condo. Not mineral interests. If the decedent owned real property beyond the homestead, this procedure will not move it, no matter how small the estate is.

And the homestead transfer itself is limited — it works where the homestead passes to those the statute permits, which in practice means the surviving spouse and minor children in the ordinary case. Where the homestead passes to adult children under the intestacy statutes, many Texas courts will not use a small estate affidavit to transfer it.

When non-homestead real property is in the picture, the usual answers are an affidavit of heirship or a judicial determination of heirship, or an independent administration.

Harris County and the surrounding counties reject a large share of self-prepared small estate affidavits. The recurring reasons:

• Incomplete family history. The affidavit must establish heirship — marriages, divorces, children including any from prior relationships, deaths, and adoptions. Courts read this closely.
• Missing or interested witnesses. Two disinterested witnesses are required. A child who inherits is not disinterested.
• Non-homestead real property included. An automatic rejection.
• The math doesn’t work. Assets must exceed liabilities under the statutory formula, and the schedules must show it.
• A will turns up. Chapter 205 evaporates.
• Assets over the threshold once something overlooked — a vehicle, a small retirement account — is added in.
• Wrong court or wrong county. Filing belongs where the decedent was domiciled.

Each rejection costs weeks. Where a family has already been rejected once, we usually start over with a clean filing rather than patching the old one.