Disclaimer

This article is for general informational purposes only and does not constitute legal advice. I am not a lawyer. For advice tailored to your situation, consult a licensed Texas attorney.

Detailed answer — how the small estate affidavit process works in Texas

When someone dies, banks often freeze the decedent’s accounts until someone with legal authority can access the funds. In many cases in Texas, a small estate affidavit (sometimes called a collection affidavit or affidavit of heirship for personal property) lets an heir or beneficiary collect certain kinds of personal property — including bank account funds — without a full probate administration. The exact eligibility rules and the affidavit’s required contents are set by Texas law and by individual bank policies.

Step 1 — Confirm whether a small-estate procedure will apply

• Determine whether Texas law allows collection without probate in your situation. Texas has statutory procedures that let certain persons collect small estates or specific items of personal property without formal administration. For details about the Estates Code and related provisions, start at the Texas statutes website: https://statutes.capitol.texas.gov/.
• Check whether the decedent left a valid will or whether a personal representative (executor/administrator) has already been appointed. If formal administration is already open, the small estate affidavit will usually not be appropriate.

Step 2 — Identify the bank’s policy and what the bank will accept

• Call the bank where the account is held. Ask whether the bank accepts a Texas small estate affidavit (or other collection affidavit) to release funds and which form(s) and supporting documents it requires.
• Banks often require: a certified copy of the death certificate, the completed affidavit, valid photo ID for the person presenting the affidavit, and sometimes proof of relationship (e.g., birth certificate) or a court order.

Step 3 — Prepare the affidavit

A small estate or collection affidavit must contain specific factual statements and be sworn before a notary public. Typical information includes:

• Decedent’s full legal name, date of death, and last county and state of residence.
• A clear statement that no probate administration is pending and that no personal representative has been appointed (or, if one has been appointed, that they have authority to release the funds).
• An itemization of the assets to be collected (e.g., name of bank, account number, approximate balance) and a statement that the assets qualify under the small-estate rules (i.e., fall beneath applicable statutory limits or are the types of property collectible by affidavit).
• The identity, relationship, and addresses of the person(s) making the claim and of other heirs or beneficiaries entitled to the property under intestacy or the will.
• An oath or affirmation and the date, signed in front of a notary. Some affidavits also include a statement that the affiant will indemnify the bank for releasing the funds.

Step 4 — Present the affidavit to the bank

• Bring the original notarized affidavit, a certified or long-form death certificate, and government-issued photo ID. Bring proof of your relationship to the decedent if requested.
• If the account is jointly held with right of survivorship, the bank may simply transfer the account to the surviving joint owner upon proof of death — no affidavit may be necessary.

Step 5 — If the bank refuses

• Ask the bank for a written explanation of the refusal and the specific legal or policy reason.
• Consider obtaining a probate court order (ancillary to full probate administration or a small probate proceeding) directing the bank to release the funds. A probate attorney can help petition the probate court for an order when a bank won’t accept an affidavit.

When the small estate affidavit is not appropriate

• When the estate is already in formal probate or a personal representative has been appointed and provided the bank with letters testamentary or letters of administration.
• When the estate owns substantial assets above statutory thresholds or when the asset is real property rather than personal property (affidavits typically cover personal property).
• When there is a dispute among heirs or creditors. In contested cases, a court proceeding is safer.

Potential risks and liabilities

Signing a sworn affidavit that contains false statements can have civil and criminal consequences. If you collect funds incorrectly and distribute them incorrectly to heirs, you may be liable to other heirs or creditors. Because of these risks, banks sometimes prefer a probate court order over an affidavit.

Where to find the controlling Texas law and forms

Texas statutory rules and current thresholds are on the official Texas statutes site. Start here: https://statutes.capitol.texas.gov/. For practical step-by-step help and sample forms, the Texas Judicial Branch and legal-aid providers such as TexasLawHelp (https://texaslawhelp.org/) provide guides and free forms. If you plan to file a sworn affidavit with a bank, compare any sample affidavit to the bank’s required wording and ask whether the bank accepts a generic affidavit or requires its own form.

Helpful hints

• Contact the bank early. Each bank has its own internal requirements and may have a specific affidavit form.
• Get multiple certified copies of the death certificate; banks usually require an original or certified copy.
• Do not sign an affidavit until you are sure of the decedent’s asset list and your status as an heir or beneficiary.
• Keep careful records. Save copies of the affidavit, death certificate, communications with the bank, and a receipt or written confirmation of any funds released.
• If the estate appears complex (debts, multiple heirs, disputed beneficiary designations, or business interests), seek an attorney experienced in Texas probate or estate administration.
• If a bank asks you to indemnify it before releasing funds, read the indemnity clause carefully and consider legal review — indemnities can obligate you to cover future claims from other heirs or creditors.
• If you are unsure whether the funds exceed the small-estate threshold or whether the affidavit applies, call the county probate clerk or consult a probate attorney. The clerk can often tell you whether an estate is already open in county probate court.