After a death in Texas

Small estates

Small estate affidavit (Texas Estates Code chapter 205). Only when the person died without a will. Estate assets must be worth $75,000 or less, not counting the homestead and exempt property, and assets must be more than known debts. The only real estate allowed is the homestead. 30 days must pass after death, and no application for an administrator can be pending or granted. All heirs sign the affidavit along with two disinterested witnesses, and the county judge must approve it before it is used. Muniment of title (Estates Code chapter 257) is another fast option when there is a will and no unpaid debts other than debts secured by real estate: the court admits the will to probate without appointing an executor.

• Limit: $75,000 (not counting homestead and exempt property)
• Waiting time after the death: 30 days
• Source: the official source

Probate court

In Texas, estates are handled by the County court in the county where the person lived. In larger counties this is a statutory probate court or a county court at law. Elsewhere it is the constitutional county court., usually in the county where the person lived.

Creditor claims: Texas has no single deadline for all claims. The executor publishes notice to creditors after letters are issued. If the executor mails a permissive notice to an unsecured creditor, that creditor must present the claim before the 121st day after receiving the notice or the claim is barred (Estates Code 308.054).

Official court forms

Small Estate Affidavit | Texas Law Help

Step-by-step guide and free forms for using a Small Estate Affidavit, including the affidavit and the court orders to approve it.

Small estate form: open the form

TexasLawHelp is run by Texas Legal Services Center, a nonprofit that works with the Texas courts. The affidavit is only for estates with no will and less than $75,000, not counting the homestead and exempt property. Wait 30 days after the death. Some county courts require their own forms, so check with the county clerk first.

Estate and inheritance tax

• State estate tax: No. Texas has no state estate tax.
• Inheritance tax: No. Texas has no inheritance tax.

The federal estate tax applies only to very large estates. Most families do not owe it.

Property that passes outside probate

• Transfer on death deed for a home: Yes. Transfer on death deed (Texas Estates Code chapter 114), available since September 1, 2015. It must be signed, notarized and recorded in the county property records before the owner dies. Lady Bird deeds are also used in Texas.
• Community property state: Yes.

Accounts with a named beneficiary, jointly owned property and property in a living trust usually pass directly, without probate, in every state.

Wills

Signing a will: In writing, signed by the will maker (or by another person in their presence and at their direction), and signed by two or more credible witnesses at least 14 years old in the will maker’s presence (Estates Code 251.051). A self-proving affidavit signed before a notary lets the will be probated without witness testimony.

Handwritten wills: Valid if written wholly in the will maker’s handwriting. No witnesses needed (Estates Code 251.052). It can be made self-proved with an affidavit (Estates Code 251.107).

Power of attorney and health care directive

Financial power of attorney: Statutory durable power of attorney (Texas Estates Code Title 2, Subtitle P). It must be signed by the principal (or another adult at the principal’s direction in their presence), say it is not affected by later disability or incapacity, and be acknowledged before a notary (Estates Code 751.0021). No witnesses are needed. Texas adopted parts of the Uniform Power of Attorney Act in 2017 (H.B. 1974). There is a statutory form (Estates Code 752.051). It must be recorded in the county records if used for a real estate transaction.

Health care directive: Medical Power of Attorney (Health and Safety Code 166.154) and Directive to Physicians and Family or Surrogates (living will). Each is signed in front of two witnesses, or signed and acknowledged before a notary instead of witnesses. At least one witness must meet extra rules: not a relative, heir, agent, or someone involved in your care. Texas also has an Out of Hospital Do Not Resuscitate order. See the state form.

Death certificates

Certified copies come from the Texas Department of State Health Services (DSHS), Vital Statistics Section. Phone 888-963-7111. Local registrars and county clerks also issue copies.. The fee is $20 for the first certified copy. $3 for each extra copy of the same record ordered at the same time.. The funeral home can usually order them for you.

Qualified applicants: the person’s immediate family (spouse, parent, child, sibling, grandparent), guardian, or legal representative. Others need proof of a direct, tangible interest, such as a court order or an insurance policy naming them.

Most families need 6 to 12 certified copies. Banks, insurers and brokerages usually want a certified copy.

Also good to know

Texas is a community property state. A will generally must be offered for probate within 4 years of death. The small estate affidavit cannot be used if there is a will.