Switching to a Small Estate Process in Texas

Quick answer

If you are dealing with an estate in Texas and you’ve run into a cap or allowance in another state (for example, North Carolina’s $60,000 year’s allowance), that out‑of‑state cap does not automatically govern Texas procedure. Texas has its own rules for collecting estate assets without full probate (the “small estate” procedures). To use a Texas small‑estate process you must determine whether the decedent’s Texas probate assets qualify under Texas law, follow the statutory affidavit or summary procedures, and take the required steps to notify or protect creditors. See Texas Estates Code, Chapter 205 for the statutory small‑estate procedures: https://statutes.capitol.texas.gov/Docs/ES/htm/ES.205.htm

Detailed answer: How to decide and how to switch

This section explains, in plain language, how the Texas small estate procedures work, how they differ from a “year’s allowance” in another state, and the practical steps to switch or proceed in Texas. This is educational information only and is not legal advice.

1. Understand the difference between a “year’s allowance” and Texas small‑estate rules

Many states (including North Carolina) have a statutory “year’s allowance” or family allowance that provides support to a surviving spouse and minor children for a set period and sometimes up to a dollar cap. That is a separate protective payment concept and does not automatically change how Texas handles administration or small‑estate collection. Texas follows its own Estates Code and its own rules about collecting assets without formal administration. Do not assume an out‑of‑state dollar cap controls Texas procedures or limits.

2. Identify whether the Texas small‑estate affidavit or other summary procedure applies

Texas law provides a method to collect and distribute certain estate assets without full probate. The primary statutory reference is Chapter 205 of the Texas Estates Code, “Disposition of Estates Without Administration,” which describes when and how an affidavit or similar summary process can be used to obtain personal property or tangible assets: https://statutes.capitol.texas.gov/Docs/ES/htm/ES.205.htm

Key factual questions to answer:

• What assets are located in Texas and are probate assets (bank accounts titled solely in decedent’s name, personal effects, vehicle titled in decedent’s name, etc.)?
• Are any assets nonprobate (payable‑on‑death accounts, assets with a survivor beneficiary, jointly owned property with right of survivorship)? Those often pass outside probate.
• Has a Texas probate administration already been opened? If yes, small estate procedures may not apply.
• What are the Texas statutory thresholds and requirements for the small‑estate affidavit at the time you act? (Statutes are updated occasionally, so confirm current law.)

3. Practical steps to switch to a Texas small‑estate procedure

1. Make an inventory of the decedent’s assets that are subject to Texas probate. Exclude property that passed outside probate (e.g., properly titled TOD accounts or joint tenancy).
2. Confirm whether a formal administration has been opened in any state (especially Texas). If a full administration is pending in Texas, you generally must work within that process.
3. Compare available Texas small‑estate methods. Chapter 205 explains the affidavit method and who may use it to collect tangible personal property and certain cash or bank assets. Read the statute and any local forms: https://statutes.capitol.texas.gov/Docs/ES/htm/ES.205.htm
4. Collect required supporting documents: certified death certificate, a creditor/asset inventory, evidence of heirship or beneficiary status, and an affidavit prepared under the statute describing the assets and affirming that no administration is necessary.
5. Prepare and execute the statutory affidavit (or use a court form where available). Some institutions require the affidavit to be sworn before a notary and may require a court filing or that you present the affidavit to the holder of the asset (bank, title company, etc.).
6. Provide required notices to creditors if the statute requires it. Texas has provisions to protect creditors and to put potential claimants on notice; follow those steps carefully to avoid personal liability as a claimant who collects assets improperly.
7. Present the affidavit to the person or institution holding the asset (bank, motor vehicle department, etc.). The institution will have its own documentation and acceptance procedures. Some institutions prefer a court‑issued order; others accept a statutory affidavit.
8. If the estate or the situation is complex (multiple states, large creditor claims, disputes among heirs, real property involved), consider converting to formal administration in Texas instead of using a small‑estate affidavit.

4. Special issues when another state already paid a family allowance

If a family allowance or similar payment was already made in another state (for example, a payment up to a $60,000 cap in North Carolina), this can affect the Texas analysis in several ways:

• The out‑of‑state payment may reduce amounts available in the estate and could be treated as an advance or claim against estate assets.
• If the payment was authorized by a court or as part of an administration in another state, it can create priority or crediting issues. Texas courts and institutions will consider what has already been paid when you present a small‑estate affidavit.
• You may need to disclose the out‑of‑state allowance when preparing a Texas affidavit. In some cases, the proper route is to open formal probate administration in Texas so the court can reconcile cross‑jurisdiction claims, allowances, and creditor claims.

5. When a full probate is the better option

If the estate’s Texas probate assets exceed the statutory limits for the small‑estate procedure, if real property needs to be probated or conveyed, if heirs dispute distributions, or if creditors’ claims are significant, you will likely need formal probate administration in Texas. A probate lawyer can help decide whether to pursue small‑estate procedures or formal probate and can prepare the necessary filings.

Helpful hints

• Start by locating the decedent’s Texas assets and obtaining a certified copy of the death certificate.
• Read Texas Estates Code, Chapter 205 for small‑estate affidavit rules and exact statutory language: https://statutes.capitol.texas.gov/Docs/ES/htm/ES.205.htm
• Don’t assume an out‑of‑state dollar cap controls Texas procedures—confirm Texas thresholds and requirements.
• Keep careful records of any out‑of‑state family allowances or payments; you will need to disclose them and account for them when dealing with Texas assets.
• Contact the institution holding the asset (bank, title office, motor vehicle office) early to find out what documentation they require to release funds or property with an affidavit.
• If you find multiple states involved or conflicting proceedings, consult a probate attorney experienced in multistate probate to avoid mistakes and personal liability.
• Consider whether a short consultation with a Texas probate attorney is worthwhile—many attorneys offer limited‑scope help to review documents and advise whether to use a small estate affidavit or open probate.

Where to look for the law and forms

Statutes and local probate forms are available on the Texas Legislature and county court websites. The small‑estate/disposition provisions are in Texas Estates Code, Chapter 205: https://statutes.capitol.texas.gov/Docs/ES/htm/ES.205.htm

Disclaimer

This article is for general informational purposes only. It is not legal advice, and it does not create an attorney‑client relationship. Laws change and every estate is different. For advice about your specific situation, consult a licensed Texas probate attorney.