Instructions and Forms for Using a Small Estate Affidavit to Probate an Estate in Texas

These instructions explain the basic steps to use a Small Estate Affidavit (SEA) to probate an estate in Texas. Each step includes a link to the form or forms needed for that step.

Use these instructions if:

Do NOT use these instructions if:

Other Options?

If the decedent died without a valid will, but the estate cannot be probated using a Small Estate Affidavit, you may consider asking the court for a determination of heirship.

TexasLawHelp.org does NOT have forms and instructions for a determination of heirship. If the decedent died with a valid will, you will need to consider different probate procedures.

Note: When calculating the value of debts and assets, do not consider any mortgages or debts secured by exempt property as debts, and do not consider homestead and exempt property as assets.

Checklist Steps

You cannot ask the Court to probate an estate using a Small Estate Affidavit if:

  • the decedent died with a will; 
  • the decedent’s total assets were more than $75,000 (not including homestead and exempt property);
  • the amount of debts are greater than the amount of assets (do not consider any mortgages or debts secured by exempt property as debts and do not consider homestead and exempt property as assets); or
  • the decedent owned real property unless both of the following are true:
    • The real property was decedent’s homestead property, and
    • The real property will be inherited by only those who were residing on the property with the decedent at the time of death: the decedent's surviving spouse and any minor children who lived on the property, or
  • you can’t locate an heir or if heirs refuse to sign the SEA (or have someone who has legal authority sign for them), or
  • a petition for appointment of a personal representative is pending or has been granted, or
  • an administration is needed. 

If you meet the legal requirements, use these instructions to ask the court to approve a Small Estate Affidavit (called SEA for short). The legal requirements of qualifying to file an SEA can be confusing. Talk with a lawyer if you have any questions about whether you meet the legal requirements to file an SEA.

You must file the Small Estate Affidavit in the right county. Generally, you can file the affidavit in the county where the decedent lived (had a domicile or fixed place of residence) at the time of death.

Important: Talk with a lawyer if, at the time of the decedent’s death, the decedent did not live in the county where you want to turn in the affidavit. The court might not approve an affidavit for a decedent who did not have a fixed residence in the county where the affidavit is filed.

After you determine the county where you should file the affidavit , call that county’s county or district court clerk and ask the clerk which court in that county handles probate cases.

Note: Ask the court where you will file the affidavit if there are any local rules or procedures you need to know about that apply to your case. For example, some courts require you to use their own forms. Other courts have additional forms required by local rule. Talk to an attorney who practices in the county where you want to file the affidavit.

Fill out the Small Estate Affidavit. Carefully follow the instructions, section by section. 

Do not fill out the forms until 30 days after the decedent’s death. This waiting period is required by law and will help make sure you have all of the bills and do not have to re-do the forms.

IMPORTANT: Fill out this form completely in blue or black ink according to the section-by-section instructions in this guide.

Do not leave any blanks. If needed, include extra pages to provide additional information. Read the FAQs: Small Estate Affidavits for more information.

Note: If you are in Travis County, you must use the SEA form from the Travis County Probate Court’s website instead. Get the Travis County form here.

Important: The SEA must be completed by persons who have actual knowledge of all stated facts.

In Section A of the Small Estate Affidavit form, print the name of the decedent, date of death, and county where the decedent died. If the decedent had any aliases (that is, went by more than one name), also list the aliases after the decedent’s legal name as “a.k.a.'s” in the form.

Section B of the Small Estate Affidavit form specifies that 30 days have passed since the decedent’s death.

There is nothing for you to complete in this section of TexasLawHelp.org's small estate affidavit form, but you cannot file a valid Small Estate Affidavit until 30 days have passed since the decedent died. See Texas Estates Code 205.001.

In Section C of the Small Estate Affidavit form, fill in the county where the decedent was a resident of and domiciled in. Usually this is the county where you are filing the affidavit. 

Note: If the decedent was not a resident of the county where you plan to file the affidavit, talk with a lawyer. The affidavit must include facts supporting venue in the county where it is filed.

In Section D of the Small Estate Affidavit form, you affirm that the decedent did not leave a valid will. If the decedent left a valid will, do not use these instructions; you will need to use a different probate procedure.

There is nothing for you to complete in Section D of TexasLawHelp.org's small estate affidavit form—but you cannot file a valid Small Estate Affidavit if the decedent left a will.

In Section E of the Small Estate Affidavit form, you confirm that no administration is necessary. Do not use these instructions if administration is pending or has been granted in decedent’s estate OR if administration appears necessary. If there is any question that administration is necessary, talk to a lawyer.

There is nothing for you to complete in Section E of TexasLawHelp.org's small estate affidavit form—but you cannot file a small estate affidavit if an estate administration is needed (or ongoing).

In Section F of the Small Estate Affidavit form you affirm that the total value of decedent’s estate assets on the date the affidavit is signed—not including homestead and exempt property—is $75,000.00 or less.

There is nothing for you to complete in Section F of TexasLawHelp.org's small estate affidavit form—but you cannot file a Small Estate Affidavit if the value of the estate administration is more than $75,000.

In Section G of the Small Estate Affidavit form, you confirm that the estate was solvent. That means that the total of estate assets—not including homestead and exempt property—must be greater than the total of known liabilities (not including debts secured by homestead and exempt property).  If the estate is not solvent, don't use these instructions or this form. Distributees, however, can pay off enough debts so that the assets exceed the remaining liabilities. 

There is nothing for you to complete in Section G of TexasLawHelp.org's small estate affidavit form—but you cannot file a small estate affidavit if the estate is insolvent.

In Section H of the Small Estate Affidavit form, you check a box concerning whether the decedent applied for and received Medicaid benefits on or after March 1, 2005.  

If the decedent did apply for and receive Medicaid benefits on or after March 1, 2005, you must either:

  1. List as a liability the amount owed to Medicaid; or 
  2. File a Medicaid Estate Recovery Program (MERP) certification that the decedent’s estate is not subject to a MERP claim; or 
  3. Include additional information proving that a MERP claim will not be filed.  

For more information, see Your Guide to the Medicaid Estate Recovery Program

In Section I of the Small Estate Affidavit form you must list all of decedent’s known estate assets.

The affidavit must list all of decedent’s known estate assets—not just some of them. List everything. Assets are any property owned that has monetary value, including cash or bank accounts, real estate, vehicles, and household furnishings. 

Indicate value. Indicate the value of each asset as precisely as possible, using values at the time the affidavit is signed. An SEA can’t be approved with any asset of “unknown value” because it is impossible to know if total assets are $75,000 or less, and it might be impossible to know if the estate is solvent. With paperless accounts, finding some values can be challenging. If a financial institution will not provide a precise value, you might be able to get the institution to provide an approximate amount or a range that would be sufficient to allow an SEA to be approved. Texas Estates Code Chapter 153 also provides a way to ask for a court order to get access to account information in appropriate situations.

Limited estate. The SEA form must show that the total estate assets are $75,000 or less, not including the homestead and exempt property.

Provide sufficient detail. Describe each asset with enough detail to make it clear exactly what property is being transferred by affidavit. For example, give VIN numbers for cars and give the last four digits of any account numbers, along with the name of bank or other entity holding the funds. 

Was the decedent married? If the decedent was married at the date of death, you must also add the following in the “additional information” column on the SEA form:  State whether each asset was decedent’s community property or decedent’s separate property.  See definitions on the form. 
For each asset, give the facts that explain why the asset was community or separate property.  

Note: For real property, indicate the date the real property was acquired, in addition to other facts. 

For each asset that was community property, indicate in the “additional information” column the total value of the asset. List the value of decedent’s interest in the “value” column. 

Exempt property.  If decedent is survived by a spouse, minor children, or unmarried adult children who lived with decedent, you should consider which assets are “exempt.”  If you claim any assets are exempt, you must indicate which assets you claim as exempt in the “additional information” column in the chart in Section “I” of the SEA form.  

Identifying which property is “exempt property” is complicated. Talk with a lawyer if you are listing any property as exempt or if you have questions.  

Exempt assets are those that are exempt from forced execution under Chapter 42 of the Texas Property Code and that would be eligible to be set aside under Texas Estates Code Section 353.051 if decedent’s estate were being administered.  

Exempt assets include, for example, home furnishings, farm animals, and some other property, as well as decedent’s pension benefits and IRAs.  Insurance benefits are also exempt.  

Real property:  homestead to homestead.  The only real property that can be transferred by an SEA is decedent’s homestead property.  Even then, real property can’t be transferred by an SEA unless the real property will be inherited only by person(s) homesteading with the decedent at the time decedent died—decedent’s surviving spouse and/or minor child(ren) who resided on property with decedent.  If this is the case, the SEA must include sufficient facts to support the homestead exemption and must also include the street address of the property and, if possible, the legal description. 

In Section J of the Small Estate Affidavit form you must list all of the decedent’s known debts and other liabilities.

List everything. The SEA must list all of decedent’s existing debts and other liabilities, including all credit card balances, doctor or hospital bills, utility bills, etc.—anything owed by decedent or decedent’s estate and not paid off as of the date the SEA will be signed. The SEA must list any attorney’s fees paid or to be paid for preparation of the SEA.  If attorney’s fees are not listed as an estate liability, whoever paid the fees is responsible for those fees; the SEA will not have the estate reimburse that person for those fees.  If there are no debts or liabilities, indicate “none.” This section can’t be left blank! 

Provide enough detail. Indicate the amount of each liability as precisely as possible, describing the debt or other liability with sufficient detail so that it is clear who the creditor is. Also indicate at least the last four digits of any known account numbers.

In Section K of the Small Estate Affidavit form you fill out the decedent's family history. 

The affidavit must state the facts about decedent’s marital and family history in enough detail to show both

  • who inherits the decedent’s property, and
  • the shares the heirs receive under Texas law.

As long as you fill out the form carefully and completely, Section K of the form will lead you through the appropriate questions, except for relatively unusual situations. Talk with a lawyer if you have any questions. 

In Section L of the Small Estate Affidavit form, you list all heirs and distributees. 

After you have filled out Section K (family history) of the form completely, figure out who the heirs are under Texas law and list all of the heirs in Section L of the form.

To figure out who the heirs are, look at the Texas Descent and Distribution Chart. You may also read the law here: Texas Estates Code Chapter 201.

Decide which of the following four charts applies to the decedent, and then look at everything included in that chart: 

  • Married Person with Child[ren] or Other Descendants 
  • Married Person with No Child or Descendant 
  • Unmarried Person with Child[ren] or Other Descendants 
  • Unmarried Person with No Child or Descendant.

List the name, address, phone number, and email address of every heir or distributee of the decedent’s estate.  You must list heirs for every property type, even if you don’t think the decedent owned property of a particular type. 

Note: If any heir died after the decedent, contact the court. If no personal representative has been appointed for a now-deceased heir, you can’t use the Small Estate Affidavit probate procedure. Instead, you must file an Application to Determine Heirship. If a personal representative for the now-deceased heir has been appointed, and you may use the small estate affidavit, ask the court if there are any local rules or procedures that impact your filing. Also talk with a lawyer if you have any questions.

Is there a minor heir?

The court may not approve an SEA with a minor heir unless all estate assets the minor heir(s) will inherit can be placed in the registry of the Court until the heir turns 18. Talk with a lawyer if there is a minor heir in your case.

List correct inheritance shares. In Section L of the small estate affidavit form, you must list the shares of each distributee in every possible type of property.  In every SEA, fill out both “separate property” columns—even if you did not list any real property. If decedent was married when he or she died, you must also fill out the “community property” column. To figure out shares, see the Texas Descent and Distribution Chart of this toolkit.

If decedent was married at the date of death, the affidavit must state the shares of each distributee in all three types of property:  separate personal property, separate real property, and decedent’s share of the community property.  (The surviving spouse will retain his or her own share of the community property.)  It is never sufficient to say that there was no separate property or no separate real property. 

If decedent was single at the date of death, there is no community property.  Put “NA” in the community property column—but always fill out both separate property columns.

Section M of the Small Estate Affidavit form is where all distributees sign and swear to the truth of the information in the affidavit.  

If you need more than one signature page, use as many signature pages as needed, but note that every signature page must include all the italicized, boxed statements regarding what the distributees are swearing or affirming, what the distributees are requesting, and what those who sign the affidavit could be liable for.  See the italicized paragraphs in the box above the distributees’ signature lines on the Small Estate Affidavit form. 

Every distributee who has legal capacity must sign and swear to the affidavit before a notary. 

Is there a minor or otherwise incapacitated distributee?  

It’s a good idea to talk with a lawyer if there is a minor or incapacitated distributee. 

For a minor, show why the person has the authority to sign on the minor’s behalf. Depending on the circumstances, the following people may sign for a minor distributee:

  • a natural parent of the minor; 
  • the court-appointed guardian with a copy of letters of guardianship attached; or
  • the court-appointed managing conservator with the court order appointing the conservator attached.

For an otherwise incapacitated distributee, provide letters of guardianship as proof that the person signing has authority to do so. 

Note: The fact that someone is signing and swearing on behalf of someone else must be clear from the signature. (For example, “Sally Jones as parent of Sam Jones, a minor.”).

Is there a distributee who survived decedent, but who is now deceased? 

In this case, you may use the SEA only if a personal representative has been appointed for a now-deceased heir. The personal representative can sign on behalf of the now-deceased heir’s estate.  The fact that personal representative is signing on behalf of the estate must be clear from the signature.  In addition, you must provide Letters Testamentary or Letters of Administration as proof that the person signing has authority to do so. 

Is there a missing heir? 

If you do not know where to find an heir, you can’t use the Small Estate Affidavit and must file an Application to Determine Heirship. An applicant for determination of heirship must be represented by a lawyer.

Section N of the Small Estate Affidavit form is where two disinterested witnesses must each sign and swear to the affidavit before a notary.

These witnesses must be able to swear to all of the facts included in the small estate affidavit form (not just the family history facts). Disinterested witnesses are witnesses who have no interest in decedent’s estate and who do not inherit from decedent under the laws of descent and distribution of the State of Texas. As noted in the boxed, italicized statement on the form above each disinterested witness’s signature, these witnesses—along with the distributees/heirs—are liable for any damage or loss to any person that arises from a payment, delivery, transfer, or issuance made in reliance on the affidavit.

Fill out these additional starting forms.

Can't afford to pay the filing fee for your case? Fill out this additional starting form if you cannot afford to pay the filing fee for your case. After you determine the county where you should file the affidavit, call that county’s county or district court clerk to learn the filing fee for your case. Learn more here: Court Fees and Fee Waivers.

Click here for a printable, fill-in-the-blank Statement of Inability to Afford Payment of Court Costs or an Appeal Bond in Justice Court form, or use the link to the guided form tool to generate a completed form. 

Make copies for yourself and for the distributees.

  • Make enough copies of the completed Small Estate Affidavit to have a copy for yourself, and all of the distributees.
  • Make enough copies of the Statement of Inability to Afford Payment of Court Courts or an Appeal Bond to have a copy for yourself and for all of the distributees if you are asking the court to waive court costs.
  • Make a copy of the decedent’s death certificate and cross out the decedent’s social security number. You will need to file (turn in) a copy of the decedent’s death certificate with social security number crossed out at the time you turn in your starting forms.
  • You do not need a copy of the Civil Case Information Sheet (or the Supplementary Probate Case Information Sheet if you file in Travis County).

Fill out one of the following ending forms:

You will ask the judge to sign one of the above "order" forms to approve the Small Estate Affidavit.

Fill out:

  • the name of the decedent (followed by any "a.k.a.'s" if they were known by multiple names);
  • the name of the county where you will file the SEA;
  • the names of all adult, non-incapacitated heirs (if applicable); and
  • the names of all minor heirs (if applicable).

The rest of the Order will be filled out by the court.

Note: Call the court to learn how you should turn in your proposed Order (an Order is called a “proposed Order” before it is signed by a Judge). (Many courts have local rules that apply to proposed documents. Some courts will want you to email the proposed Order to the court staff before it is given to the judge to sign.)

Important: These basic instructions are not a substitute for the legal advice and counsel of a lawyer. A lawyer is trained to protect your legal rights. Even if you decide to represent yourself, try to talk to a lawyer about your case before filing anything. You can hire a lawyer just to review your forms. This is called “limited scope representation.” You may also be able to talk with a lawyer for free at a legal clinic. If you need help finding a lawyer, you can:

  • Contact your local lawyer referral service.
  • Use our Legal Help Directory to search for a lawyer referral service, legal aid office or self-help center in your area.
  • Check our Legal Events and Clinics page for free legal clinics in your area.
  • Use Ask a Question to chat online with a lawyer or law student.

Remember, you must wait 30 days from the date of the decedent’s death to sign the court forms.  This waiting period helps to make sure you have all bills before turning your court forms in.

After the 30-day waiting period has passed, sign and file (turn in) the completed Small Estate Affidavit and additional court forms.

●    To file your forms online, go to E-File Texas and follow the instructions.

  • To file your forms in person, turn in your Small Estate Affidavit and additional court forms (and copies) to the clerk’s office in the court you determined hears probate matters in the county where the decedent resided at the time of the decedent’s death.

Note: Follow any local rules or procedures that might apply to the submission of court documents (such as a local rule requiring a proposed Order to be emailed to the court staff).

At the clerk’s office:

  • Turn in your Small Estate Affidavit and other court forms (and copies).
  • Pay the filing fee (or file your completed Statement of Inability to Afford Payment of Court Costs or an Appeal Bond if you cannot afford the fee). You can call the clerk’s office ahead of time to learn the filing fee for your case.
    • The clerk will write your “Cause Number” and “Court Number” at the top of the first page of the Small Estate Affidavit.
    • The clerk will “file stamp” your copies with the date and time. The clerk will keep the original and return your copies to you. One copy is for you and one copy is for each distributee. You will send a file-stamped copy of the Small Estate Affidavit to each distributee by certified mail, return receipt requested.

Ask the court if its staff will get the Order signed by the judge for you. Many SEA applications do not require a hearing. (A hearing is where you go before a judge to get the judge’s signature on your Order.) 

But sometimes the court may require a hearing before an SEA will be approved. If you need a hearing, ask the court staff how to schedule it. 

If a hearing is needed in your case, follow these steps. 

Read the article: Tips for the Courtroom for more information about going to Court.

Bring the following with you to court:

  • A file-stamped copy of your Small Estate Affidavit.
  • The original death certificate.
  • The Order for the judge to sign.

When you get to the courthouse, go to the clerk’s office.

  • Ask the clerk if you need the court file or docket sheet (list of what has been filed in your case).
  • Sit down until the judge calls your case.
  • When the judge calls your case, walk to the front of the courtroom and stand in front of the judge’s bench. The judge will have you raise your right hand and swear to tell the truth.
  • Be ready to explain to the judge why the estate meets the requirements of Chapter 205 of the Texas Estates Code, why no personal representative needs to be appointed, and why the SEA qualifies to be approved.

If the judge agrees, the judge will sign the Order.

  • After the judge signs the Order, take the signed Order back to the court clerk’s office.
  • File (turn in) the signed Order. Your case is NOT final until you do so

Pay for certified copies of the Order signed by the judge with the Small Estate Affidavit attached. The clerk will charge a fee for the certified copies.

You will need enough copies for:

  • you,
  • each distributee, and for
  • each person who owes money to the estate, has custody or possession of estate property, or acts as a registrar, fiduciary, or transfer agent of or for an evidence of interest, indebtedness, property, or other right belonging to the estate. 
  • Send a certified copy of the signed Order with the Small Estate Affidavit attached to each person who owes money to the estate, has custody or possession of estate property, or acts as a registrar, fiduciary, or transfer agent of or for an evidence of interest, indebtedness, property, or other right belonging to the estate.  Read the law here: Texas Estates Code  205.004.
  • Send a certified copy of the signed Order with the Small Estate Affidavit attached to each distributee. Send it by certified mail, return receipt requested.
  • Keep a copy of the signed Order for your records. 

Source URL: https://texaslawhelp.org/checklist/instructions-and-forms-for-using-a-small-estate-affidavit-to-probate-an-estate-in-texas