Can You Use a Small Estate Affidavit for an Intestate Estate in Texas?

Short answer: Maybe. Texas provides streamlined, non‑probate ways to collect many kinds of property after someone dies without a will (intestate). A statutorily authorized small estate affidavit and other informal tools can often transfer personal property when the estate is below the statutory threshold, but they have limits. Whether you can avoid formal probate depends on the types of assets, the total value, who is claiming, and the practices of the institutions holding the assets.

Detailed answer — how this works in Texas

Texas has several tools that let heirs or certain claimants collect decedent’s assets without opening a full probate case. Two commonly used tools are:

• Statutory small estate affidavit (a short affidavit sworn to by the person entitled to the asset); and
• Affidavit of heirship (a commonly used affidavit prepared by a lawyer or title company to document heirs when the decedent owned real property but did not leave a will).

How the small estate affidavit works in practice:

• It applies only to certain assets — typically personal property (bank accounts, vehicles, personal belongings, insurance proceeds payable to the estate, etc.). It generally will not transfer real property (land or real estate title) except in limited circumstances. Financial institutions and other payors have their own rules about when they will accept an affidavit in lieu of probate.
• There is a statutory value limit (a monetary threshold) for using the small estate procedure. If the decedent’s qualifying personal property that must pass through probate falls at or below that limit, an affidavit may be available. That threshold and details can change over time, so you should confirm the current amount in the Texas Estates Code on the Texas Legislature website: https://statutes.capitol.texas.gov/.
• Only certain people may use the affidavit — usually heirs-at-law, the surviving spouse, or someone entitled to possession. The affidavit must identify the decedent, state that no application for probate is pending or has been granted, describe the property being claimed, state the value is within the statutory limit, and identify the claimant’s relationship to the decedent. It must be sworn and typically notarized.
• Some statutes impose a waiting period after death (for example to allow creditors a chance to make claims) before the affidavit may be used. Even when an affidavit is accepted, it does not insulate the claimant from legitimate creditor claims in all circumstances.
• Banks, title companies, and other institutions may accept a properly completed small estate affidavit and release funds or transfer personal property. But institutions have different practices — some will accept the affidavit, others will insist on formal probate or additional documentation (for example, letters testamentary or letters of administration issued by a court).

Important limits and situations that require formal probate

• Real property (land, many deeds) usually requires probate, a deed transferring title, or a properly executed affidavit of heirship handled with a title company; straight small estate affidavits rarely clear title to real estate by themselves.
• If the estate owns property jointly with rights of survivorship, or property with designated beneficiaries (payable‑on‑death accounts, life insurance with beneficiary, retirement accounts), those items typically pass outside probate.
• If the value of qualifying probate assets exceeds the statutory small estate limit, or if there are disputes among heirs, creditors, or claims against the estate, you usually need to open a probate case in court.

Practical example (hypothetical):

Sam dies intestate. Sam’s only probate‑type assets are a checking account with $12,000 and a car titled only in Sam’s name. Sam’s spouse, Pat, is the heir-at-law. If the Texas small estate rule’s current threshold is above $12,000 and the bank accepts a properly completed small estate affidavit, Pat can present the affidavit, a death certificate, and ID to the bank to collect the account without opening probate. But to transfer the car title, Pat may need to either use the Department of Motor Vehicles’ small estate procedures, show proof of transfer under state motor vehicle rules, or open a probate case if the motor vehicle transfer rules are not satisfied by the affidavit.

Where to check the law and forms

• Texas statutes (Estates Code) and up‑to‑date thresholds: https://statutes.capitol.texas.gov/
• Texas county clerk and probate court pages often list local practices. Many banks and title companies also publish their requirements for accepting affidavits.

When you should still consider formal probate

• The estate owns real property or business interests that need a clear title transfer.
• Assets exceed the small estate statutory threshold.
• There are disputes among potential heirs about who is entitled to property.
• Significant creditor claims exist or are likely.
• You need a court order for tax, partition, or other reasons that require judicial involvement.

If any of the above apply, a court‑supervised probate will often be the safer route. Probate creates court‑issued letters or orders that many banks, title companies, and other holders of property recognize without question.

Helpful hints — practical steps and tips

• Gather documents first: certified copy of the death certificate, bank statements, title certificates, account contracts, and any documents showing beneficiary designations.
• Identify who is the lawful heir: the intestacy rules determine who inherits when there is no will (spouse, children, parents, siblings). If heirs are uncertain, consult the Estates Code or a lawyer to determine heirship.
• Call the institution holding the asset before preparing an affidavit. Ask whether they will accept a small estate affidavit and what specific language or additional documents they require.
• Be aware of creditor notice issues. Even when using an affidavit, some claims may later surface; keep careful records and consult counsel about possible creditor exposure.
• Consider an affidavit of heirship prepared or reviewed by an attorney when real property is involved — title companies often require this and may add underwriting steps.
• If multiple heirs exist, get their agreement in writing. Disagreements can force formal probate.
• When in doubt, talk with a Texas probate attorney. Many attorneys offer brief consultations and can confirm whether the small estate route is appropriate and prepare or review the affidavit.

How an attorney can help

An attorney can:

• Confirm whether the estate qualifies for the small estate affidavit and whether the assets in question are eligible;
• Draft a correct affidavit (or affidavit of heirship) that meets statutory and institutional requirements;
• Advise about risks from creditors and steps to minimize them;
• Open a probate if needed and represent you in court to obtain letters or orders that clear title and resolve disputes.

Disclaimer: This article is educational only and does not constitute legal advice. Laws change. For advice about a specific situation in Texas, consult a licensed Texas probate attorney or the current Texas Estates Code at https://statutes.capitol.texas.gov/.