I want to use a Small Estate Affidavit to probate an estate.

Wills & Estate Planning

How to transfer a modest estate if someone passed away without a will.
Last Updated on August 6, 2021
Overview

Guide Overview

Warning: The information and forms in this guide are not legal advice and are not a substitute for the help of a lawyer. 

This guide tells you how to use a Small Estate Affidavit to probate an estate in Texas.

Common questions about Wills & Estate Planning

A Small Estate Affidavit (called SEA for short) can be an affordable way to transfer property to a decedent’s heirs. You may be able to use an SEA to probate an estate in Texas if you meet all of the requirements set out in the Texas Estates Code Chapter 205. Some of the important requirements include:

  • The decedent died without a will.
  • The decedent left less than $75,000 in property (not including homestead property and exempt property).
  • The assets are worth more than the debts. (Note: When calculating the value of the debts and the assets, do not consider any mortgages or debts secured by exempt property as debts and do not consider homestead and exempt property as assets.)
  • The only real property owned by the decedent was decedent’s homestead property, and 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.
  • You are able to locate all of the heirs and all of the heirs will sign the Small Estate Affidavit (or someone with legal authority will sign on their behalf).
  • There is no pending application for appointment of a personal representative and no personal representative has been appointed by a court.
  • There is no administration needed.

A decedent is a person who has died. Courts and court papers regularly use this word in place of the name of the person who has died.

Exempt property includes the following:

  • the homestead (for the use and benefit of the decedent's surviving spouse and minor children; and
     
  • some of the following categories of property, (up to $100,000 for a family or $50,000 for a single adult) for the use and benefit of the decedent’s surviving spouse and minor children, unmarried adult children remaining with the decedent's family, and each other adult child who is incapacitated:
  • home furnishings, including family heirlooms;
  • provisions for consumption;
  • farming or ranching vehicles and implements;
  • tools, equipment, books, and apparatus, including boats and motor vehicles used in a trade or profession;
  • clothes;
  • a limited amount of jewelry;
  • two firearms;
  • athletic and sporting equipment, including bicycles;
  • a two-wheeled, three-wheeled, or four-wheeled motor vehicle for each member of a family or single adult who holds a driver's license or who does not hold a driver's license but who relies on another person to operate the vehicle for the benefit of the nonlicensed person;
  • certain livestock and food on hand for their consumption; and
  • household pets.

Note: Exempt assets also include the decedent’s pension benefits and IRAs. Insurance benefits are also exempt. Determining which property is exempt can be complicated. Talk with a lawyer if you are claiming any property is exempt and you have questions.

Read the law here: Texas Estates Code § 353.051; Texas Property Code § 42.002(a).

A homestead is a place lived in and owned by an individual (not a company) and includes a:

  • separate (stand-alone) structure,
  • condominium, or a
  • manufactured (mobile) home.

A homestead can be located on owned or leased land, as long as the person that lives in the structure (home) owns the structure.

A homestead can also include up to 20 acres of land, if the land is owned by the person that lives in the structure (home) and the person uses the land for a residential purpose.

For more information on homestead uses and benefits, see Residence Homestead Exemption Frequently Asked Questions at the Texas Comptroller’s website.

"Intestate" means that a person has died without a valid will. When someone dies intestate, the law sets out who is entitled to the property in the estate, and in what percentage.

This is a person (called an executor or administrator) that is appointed by a court to handle duties of the estate.
 

  • If the decedent died with a valid will, the decedent may have designated someone to be his or her personal representative (executor) at the time of the decedent’s death.

Or, the personal representative (in this case, administrator) might be designated by the decedent’s beneficiaries, heirs, or even a judge. In all cases, the personal representative must be approved by a court to have legal authority to act on behalf of the estate.

Estate administration is the legal process where an estate is managed (such as settling claims, paying debt, distributing property) after a personal representative is approved by a court.

Some estates do not require administration, but many do.

Tip: If property requires “letters testamentary” or “letters of administration” to transfer the property, estate administration is required.

When someone dies without a will in Texas, the decedent’s intestate “heirs” are entitled to the property in the estate.

  • Heirs are named by the court, according to the law set out in Texas Estates Code Chapter 201.
    • Depending on who survives the decedent, heirs can include the decedent’s surviving spouse, children and their descendants, father and mother, brothers and sisters and their descendants, grandfather and grandmother and their descendants, and other relatives.

Because a Small Estate Affidavit form can only be used when someone dies without a will, the SEA form will need to list detailed information on who the heirs are, and what share of property they should get.

Under Texas law, a small estate affidavit must include the following information. Each item below corresponds to a section of the form (which is linked to here).

A. The name of, and facts about, the decedent;

B. That 30 days have passed since the decedent died;

C. The county where the decedent resided;

D. That the decedent died without a will;

E. That no administration is necessary;

F. The value of estate;

G. That the estate is solvent;

H. Whether the decedent applied for and received Medicaid benefits (on or after 3/1/2005);

I. The decedent’s estate assets;

J. The decedent’s debts and liabilities. 

K. The decedent's family history. 

L. A list of all heirs and distributees;

M. A sworn signature from each distributee; and

N.  A sworn signature from two disinterested witnesses.

Instructions & Forms

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:

  • the decedent died without a will, and
  • the decedent’s total assets were less than $75,000 (not including homestead and exempt property). 

Do NOT use these instructions if:

  • the debts are greater than the value of the 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 only by person(s) homesteading with the decedent at the time decedent died—decedent’s surviving spouse or minor children who resided on property with decedent, 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.

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 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, 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, which are here.

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 instructions.

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.

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. Otherwise, skip to Step 8.

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: Tex. 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.

Forms Required

Articles in this guide

Donate

TexasLawHelp.org is managed by Texas Legal Services Center, a 501(c)(3) nonprofit organization. TLSC provides free legal services to underserved Texans in need of education, advice, and representation.

Free. Not for sale. The information and forms available on this website are free. They are not for sale. By using this website, you agree not to sell or make a profit in any way from any information or forms that you obtained through this website.

Digital strategy, design, and development by Four Kitchens.

© 2001-2021 TexasLawHelp.org All Rights Reserved.