Probate Shortcuts in Texas

The probate process can be long and drawn out, costing your survivors time as well as money. Fortunately, Texas offers probate shortcuts for "small estates." If the property you leave behind at your death is below a certain amount, Texas allows the property to be transferred more quickly and with less hassle. In other words, if your estate qualifies as "small," your loved ones might be able to use a simplified probate procedure.

The Small Estate Affidavit in Texas

Texas offers a procedure that allows inheritors to skip probate altogether by using an affidavit.

How to Qualify for the Small Estate Affidavit Procedure

To qualify, the estate (the property you own at death) must meet these requirements:

• the deceased person didn't leave behind a will (that is, the person died "intestate")
• at least 30 days have elapsed since the death, and
• the value of all property can't exceed $75,000 (not counting homestead property and exempt property).

(Tex. Est. Code § 205.001 (2024).)

How to Make a Small Estate Affidavit

If your estate meets the requirements listed above, your inheritors can sign a document under oath, called a small estate affidavit. (Here's a sample affidavit.) The affidavit must include certain information, such as:

• statements that the estate fulfills each of the requirements listed above
• descriptions of the property being collected and its value
• a description of homestead property, if applicable
• a list of debts, and
• a list of "distributees" (those who will be inheriting property).

All of the distributees must sign this affidavit, along with two disinterested witnesses—meaning two people who aren't inheriting property. (Tex. Est. Code § 205.002 (2024).)

Collecting Property With the Small Estate Affidavit

After the judge approves the affidavit, the distributees can get a certified copy of the affidavit and present it to any person or institution holding property of the deceased—for example, a bank where the deceased person had an account. After that, the person or institution releases the asset to the distributees. (Tex. Est. Code § 205.004, 205.007 (2024).)

Summary Proceedings for Small Estates

The personal representative can use a simplified small estate process if the value of the property doesn't exceed what's needed to pay:

• the homestead allowance
• exempt property allowance
• family allowance to the decedent's surviving spouse, minor children, and adult incapacitated children
• funeral expenses and the medical expenses of the last illness
• probate fees and costs
• secured claims and preferred debts or liens, and
• child support.

(Tex. Est. Code §§ 354.001, 355.102 (2024).)

If the estate meets the above requirements, the court will issue an order for the personal representative to distribute the estate property. After distributing the property, the personal representative files an application for settlement of the estate. If the court agrees with the personal representative's application for settlement, it will issue a final order to close the estate. (Tex. Est. Code § 354.001 (2024).)

Order of No Administration

The requirements to qualify for an order of no administration are similar to summary proceedings for small estate requirements. But the process is different.

A court can issue an order of no administration before appointing a personal representative. In other words, the order can allow a spouse or children to skip probate altogether. If, after the expenses of the funeral and last illness have been paid, the remaining assets don't exceed the amount of the family allowance, the court can issue an order of no administration that assigns the estate assets to the surviving spouse and minor children. (Tex. Est. Code §§ 451.001, 451.002, 451.003 (2024).)

Muniment of Title

The "muniment of title" process isn't really a "small estate" shortcut, but it's a relatively simple and inexpensive way to transfer estate assets.

Muniment can be used when:

• there is a valid will, and
• there are no unpaid debts (including Medicaid claims for the recovery of benefits), except debts secured by real estate.

(Tex. Est. Code § 257.001 (2024).)

If the court decides there's no need for probate administration, it admits the will into probate as a muniment (evidence) of title to the estate assets. The court then will issue an order that allows the will to serve as the document that transfers the assets to the persons or entities named in the will (Tex. Est. Code §§ 257.051, 257.052, 257.101 (2024).)

For More Information

For more help handling an estate in general, see The Executor's Guide, by Mary Randolph (Nolo). For an introduction to how you can plan your estate to help your survivors, try Estate Planning Basics, by Denis Clifford (Nolo).

See Texas Probate: An Overview for more information on muniment of title and other probate procedures in Texas.

For more on Texas estate planning issues, see our section on Texas Estate Planning.