When Can You Do A Small Estate Affidavit Procedure In Texas?

Posted by: Adair M. Buckner

Frequently, people whose loved one dies without a Will fail to take any action to transfer property because they don't think the estate is large enough to mess with. This leaves loose ends that must be dealt with years later, when finding the people necessary to legally make the transfer is much harder. 

To avoid this result, the State of Texas allows the heirs to legally transfer assets at very little expense through a procedure called a Small Estate Affidavit.


What Is A Small Estate Affidavit Procedure?

A Small Estate Affidavit Procedure can be used where there is no Will and specific criteria are met. It is the least expensive court action to handle an estate if there is no Will. This is a simple action in which a formal affidavit is filed with the court. The affidavit outlines the family history of the decedent, property owned, and other facts that would determine who are the legal heirs.

This procedure only can be used, however, if the value of the estate, excluding a homestead, is under $75,000. As defined in the statute, the homestead must be resided in by a qualifying person such as a surviving spouse or dependent child. Thirty days must have passed since the date of death.

The affidavit must be signed under oath by the heirs of the decedent. It also must be sworn to by two disinterested witnesses who are familiar with the family history.

Steps In The Small Estate Affidavit Procedure:

  • All of the information needed to complete the affidavit must be gathered. The statute sets out specifically what information must be included in the affidavit, such as full family history, a list of the assets owned by the decedent and their value, who is living in the homestead, and that the value of the estate exclusive of the homestead is less than $75,000.
  • All of the heirs then must sign the affidavit under oath. Rounding up all of the heirs is sometimes difficult. Frequently, services such as Ancestry.com or people locator websites must be used to help identify and track down distant heirs. In one case, I had 28 heirs spread all over the country and one in Germany!
  • Two disinterested witnesses who know the family history and are willing to swear under oath that the family history is true must be located also and sign the affidavit under oath. These individuals couldn't stand to benefit from the estate.
  • Once the affidavit is complete, it is filed with the probate court in the county where the decedent lived.
  • A hearing is set for the county judge to take testimony in support of the facts set out in the affidavit. At least one heir must appear at the hearing and the judge may also require one of the independent witnesses to appear.
  • If the judge is satisfied with the truthfulness and completeness of the affidavit, he or she will sign an order approving the affidavit.
  • You can then use the order approving the affidavit to transfer property.

This, as you can see, requires very little court action. The hard work is in preparing the affidavit.

If you would like to talk more about probate or administration of an estate, please call Adair M. Buckner for a free initial consultation.*

Schedule A Free Consultation

*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)


I needed an attorney I could trust who could handle my legal concerns regarding my mother’s Living Trust. Adair Buckner firmly set things right. She was my voice when I had none and knew how to protect me in the midst of negative chaos. I recommend Adair to anyone seeking justice.

- Debbie -

It was way past time to finally get our Wills completed. This was something that was extremely complicated for us, but Adair and her assistant never made us feel like we were bothering them...and we (I) bothered them...a lot! Things were explained to us in a way that we could understand easily. Extremely professional and knows her stuff!

- Darla -

When my husband passed away, I contacted the attorney that we had used to prepare our wills but was unhappy with his attitude of indifference. I discovered Adair Buckner and all of my issues were resolved. Adair is professional, compassionate, and extremely knowledgeable. She saved me a large amount of money by processing my will in the appropriate manner to best suit my situation.

- Susan -

Adair Buckner has provided me with her excellent expertise in finalizing the sale of a buy/sell agreement and preparation of my Last Will & Testament. Adair efficiently applies her knowledge to your specific needs. I highly recommend her.

- Fern -

Losing my Mother and being appointed as Executor of her estate was overwhelming. Adair was very professional and personable. She handled and processed the estate with ease and kindness.

- Lydia -

Adair drew up a beautiful power of attorney and Will for my father in a timely manner. I highly recommend that you use her. She’s a wonderful lady.

- Hiram -

Trying to get our LLC changed over after moving to Texas was complicated, but Adair Buckner made the process so simple! We just gave her the details, and she handled everything quickly and professionally. Thank you, Adair, for making this part of our move stress-free!

- Barbara -

Mrs. Buckner did a full estate plan for me. Her work was excellent, her communication was great, and the price was reasonable. I would highly recommend her for your estate planning needs.

- Brad -

We appreciate Adair Buckner’s professional and personable service. Our legal needs were met promptly and succinctly. We would not hesitate (and do!) recommend her to our family and friends.

- Kristine -

This was as painless as it gets to hire an attorney in Amarillo Texas. Handled all the estate needs and never had to appear in court. You won't find any better and I use Attorneys quite often in my line of work.

- AAA Land Records of Oklahoma Inc -