When is it Proper to Use a Small Estate Affidavit?

A small estate affidavit is a legal document that can be used to transfer property to heirs without a formal probate. The use of a small estate affidavit is permitted in only limited circumstances.

In Texas, heirs can take advantage of a Small Estate Affidavit if:

  1. The deceased person died without a Will;
  2. At least 30 days have passed since the date of death;
  3. No person has filed an application to be appointed as personal representative of the estate;
  4. The value of the probate estate is $50,000 or less, not counting the value of the homestead and other exempt property; and
  5. The total assets (not counting homestead and exempt property) exceed the total known debts of the estate (exclusive of debts secured by homestead and exempt property).

The Harris County Clerk’s office has created a wonderful flowchart to help Texans determine whether a small estate affidavit is proper to use in their given circumstances:

Harris County also provides a small estate affidavit form (pdf), as well as instructions for filling it out.

Once the affidavit is complete, it should be filed with the probate court, which will review the affidavit to confirm that it complies with the statutory requirements. If approved, a certified copy of the affidavit can be used by the distributees of the estate to collect money owed to the estate or assets owned by the estate.

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