Small Estate Affidavit Attorney in Austin, TX

Small Estate Affidavits for Austin Families

When someone dies without a will and leaves a modest estate, a full probate can be more than the family needs. A Texas small estate affidavit lets the heirs collect bank accounts, vehicles and other property, and in some cases the family home, with a sworn affidavit approved by the judge instead of a full administration. It has strict requirements, and courts reject affidavits that are incomplete, so it pays to get it right the first time.

Reviewed by Turner Henington, attorney, Texas Bar No. 24148206 · Updated November 2026

Requirements for a Texas Small Estate Affidavit

• No will. The affidavit is for estates of people who died without a will. If there is a will, title probate is usually the simpler route.
• 30 days have passed since the death (§ 205.001).
• No administration is pending or granted. Nobody has applied to be appointed administrator.
• $75,000 or less. The estate’s assets, not counting the homestead and exempt property, are worth $75,000 or less.
• Assets exceed known debts, not counting debts secured by the homestead or exempt property.
• The right people sign. Each heir with legal capacity and two disinterested witnesses must swear to it, plus a parent or guardian for a minor or incapacitated heir (§ 205.002).
• The right contents. It must list all known assets and debts, the name and address of each heir, and the family history showing who the heirs are.

What Counts Toward the $75,000 Limit?

Assets that pass by beneficiary designation or survivorship never go through probate at all. See probate vs. non-probate assets in Texas.

Can a Small Estate Affidavit Transfer a House?

Only the homestead, and only if it is the only real estate in the estate. The approved affidavit is then recorded in the property records of the county where the home is located (§ 205.006). A small estate affidavit can’t transfer other real estate (§ 205.008). For other land, the family usually needs an affidavit of heirship or a court heirship proceeding.

How It Works With Our Firm

1. Free case review. We confirm there is no will, value the estate and identify the heirs.
2. Drafting. We prepare the affidavit with the asset and debt lists and a complete family history.
3. Signing. The heirs and two disinterested witnesses sign before a notary. We coordinate signing for family members who live out of town.
4. Filing and approval. We file it with the court clerk. The judge reviews it and approves it if it meets the requirements (§ 205.003). Incomplete family histories and asset lists are common reasons for rejection.
5. Collecting the assets. The heirs give certified copies to banks and others holding the property, who are protected when they pay out under the affidavit (§ 205.007). If the homestead is included, we record the affidavit in the property records.

Know the Risks

A small estate affidavit is a sworn statement. Heirs who receive property under it are answerable to anyone with a better right to it, and each person who signs can be liable for losses caused by relying on a false affidavit (§ 205.007). That is another reason to have an attorney confirm the facts before anyone signs.

Is It Cheaper Than Probate?

Usually, yes. When it fits, a small estate affidavit is generally less expensive than a heirship proceeding with an administration. It is not always faster, because the court reviews it carefully. We give you a written flat-fee quote after the free case review.

When a Small Estate Affidavit Won’t Work

• There is a will: title probate.
• The estate is over $75,000, debts exceed assets, or someone needs authority to collect or sue: a heirship proceeding with independent administration.
• There is real estate other than the homestead: an affidavit of heirship or a heirship proceeding.
• The heirs can’t be found or won’t sign: a heirship proceeding.

Where the Case Is Filed

Probate is filed in the county where the person lived when they died. We handle cases in:

• Travis County: Travis County Probate Court No. 1 and No. 2 in Austin. See our Travis County probate attorney page.
• Williamson County: filed with the County Clerk in Georgetown and heard by the county courts at law. See Williamson County probate.
• Hays County: filed in San Marcos and heard by the county courts at law. See Hays County probate.

Many hearings are short, and family members who live out of town can often handle much of the process with us by phone, video and mail.

Why Families Choose Henington Lewis

• Both attorneys handle probate. Turner Henington and Samantha Lewis handle probates, heirship cases and executor problems, and Samantha handles estate disputes if a disagreement comes up.
• A written quote before anything is filed. After a free case review, we tell you which kind of probate fits and give you a written flat-fee quote.
• Tax background. Turner is a former KPMG tax accountant, which helps with an estate’s final income tax returns and any estate tax questions.
• You work with your attorney. You talk to the lawyer handling your case, not a call center.

Get a Free Probate Case Review

Tell us a little about the situation and an attorney will contact you as soon as possible. There is no cost and no obligation. You can also call (512) 737-8404.

What Our Clients Say

Small Estate Affidavit FAQ

What is the limit for a small estate affidavit in Texas?

$75,000 in estate assets, not counting the homestead and exempt property, and the assets must exceed the known debts.

Can I use a small estate affidavit if there is a will?

No. The small estate affidavit is for people who died without a will. If there is a will, title probate (muniment of title) is usually the simpler option.

How soon after death can a small estate affidavit be filed?

At least 30 days after the death, and only while no application to appoint an administrator is pending or has been granted.

Can a small estate affidavit transfer a house in Texas?

Only the homestead, and only if it is the only real estate in the estate. The approved affidavit is recorded in the county property records.

Who has to sign a small estate affidavit?

Each heir who has legal capacity and two disinterested witnesses, plus a parent or guardian for any minor or incapacitated heir.

Does a judge have to approve a small estate affidavit?

Yes. The judge reviews it and approves it only if it meets the requirements of chapter 205 of the Texas Estates Code.

Other Types of Probate We Handle

• Title probate (muniment of title)
• Probate with independent administration
• Probate with dependent administration
• Heirship (no will)
• Probating a will after 4 years
• Austin probate attorney: all probate services
• Contested probate and will contests

Related Guides

• Probate vs. Non-Probate Assets in Texas
• Bank Accounts After Death in Texas
• Texas Affidavit of Heirship
• Who inherits without a will: Austin intestate succession lawyer
• What to Do After Someone Dies in Texas
• When Is Probate Necessary in Texas?

Sources and Texas Law Cited

• Tex. Est. Code chapter 205 (small estate affidavit)
• Tex. Est. Code § 205.001 (requirements and $75,000 limit)
• Tex. Est. Code § 205.002 (contents and signers)
• Tex. Est. Code § 205.006 (homestead)
• Tex. Est. Code § 205.007 (effect and liability)
• Tex. Prop. Code chapter 42 (exempt personal property)

This page is general information, not legal advice for your situation. Reading it does not create an attorney-client relationship.