Probate Options
Affidavit of Heirship vs Small Estate Affidavit in Texas
Both documents can help a family avoid a full probate case when someone dies without a will. They are not interchangeable. One is built for real estate, the other has a dollar cap and needs a judge's signature.
Affidavit of Heirship
For real property, no court order needed
An affidavit of heirship is often used when someone dies without a will and the main asset is a house or land. It records sworn family-history facts in the county real-property records. Title companies commonly ask for statements from disinterested people who knew the family, but the exact evidence and underwriting requirements should be confirmed for the property involved.
Small Estate Affidavit
For small, no-will estates under the cap
A small estate affidavit also applies when there is no will, but it works differently. The estate's assets, minus debts, currently must fall under $75,000, not counting the homestead and other exempt property. Unlike an affidavit of heirship, it generally cannot be used to transfer real property other than the family homestead, and it has to be filed with and approved by a probate court.
Choosing between them
The property and the estate size decide it
If the estate includes rental property, land, or a second house, the small estate affidavit's rules on real property usually rule it out, and an affidavit of heirship is the more likely fit. If the estate is mostly bank accounts, vehicles, and personal property under the current cap, with only the homestead as real property, a small estate affidavit may be quicker since it also authorizes distribution of those other assets.
What can go wrong
Using the wrong one costs time
A small estate affidavit rejected for exceeding the cap, or an affidavit of heirship used where a lender or title company wants court approval, sends a family back to the beginning. Sorting out which one fits, and preparing it correctly the first time, is generally faster than filing the wrong document and starting over.
How we help
What to prepare
The first call should turn a confusing legal issue into a clearer next step.
- The death certificate and any will search
Confirm there is no will, and bring a copy of the death certificate along with any paperwork already gathered.
- A list of the estate's property and debts
Real property, bank accounts, vehicles, and outstanding debts, so the firm can tell which path actually fits.
- Names of the heirs
Who the closest relatives are and whether everyone agrees on how the property should pass.
Why Ted Smith Law Group
Probate turns on authority, documents, and the local court path; the Killeen office helps families sort the next step before conflict grows.
- Local office in Killeen
- The firm works from its Killeen office on E. Stan Schlueter Loop.
- 1976
- Ted Smith opened his Killeen practice after Fort Hood JAG service.
- 536
- Rated 4.6 stars by 536 clients on Google.Read the reviews
“Ted Smith and his legal assistants Carol and Crystal are highly recommended.”
Questions
Probate Options FAQ.
Does either option work if there is a will?
No. Both an affidavit of heirship and a small estate affidavit generally apply only when the person died without a will. If a will exists, the estate typically needs to go through a different probate process, even if the estate is small.
What counts toward the $75,000 cap?
The cap looks at the value of the estate's assets minus its debts, and it currently excludes the homestead and other property Texas law treats as exempt. Because valuation and what counts as exempt can get technical, it is worth having the numbers checked before relying on the affidavit.
Can a small estate affidavit transfer a house?
Generally only the family homestead, and only to the people entitled to inherit it. Other real property, like rental houses or land, usually is not eligible under a small estate affidavit and may need an affidavit of heirship or a different probate path instead.
Who can sign as a witness on an affidavit of heirship?
The Estates Code focuses on a legally executed, acknowledged or sworn statement of family-history facts. In practice, a title company may ask for one or more disinterested people who knew the family, and its underwriting requirements can be more specific than the statute. Confirm the requested form before collecting signatures.
Do either of these avoid court entirely?
An affidavit of heirship is generally recorded with the county and does not require a judge's approval. A small estate affidavit is different: it has to be filed with and approved by a probate court before it takes effect.
Sort out the next probate step.
Call or text the Killeen office and the team will get back to you, usually within one business day.