Died Without a Will in Texas: The Three Ways Heirs Get the Property
No will doesn't have to mean a long probate. Which path fits depends on how much there is, and whether there's a house.
Short answer
When someone dies without a will in Texas, the heirs get the property one of three ways. A small estate affidavit skips probate for estates of $75,000 or less (not counting the homestead and exempt property) once a judge approves it. An affidavit of heirship is a sworn family history recorded in the county deed records. Anything else goes to court, to determine heirship or administer the estate.
First: who inherits when there's no will?
Texas law decides, and the answer depends on whether the person was married and whose children the children are.
- No spouse: everything goes to the children and their descendants. With no children, to the parents, or to one parent and the brothers and sisters (Tex. Est. Code §201.001).
- Spouse, community property: the surviving spouse takes the deceased spouse's half, unless the deceased had a child who is not also the survivor's child. Then that half goes to the children (§201.003).
- Spouse, separate property: with children, the spouse takes a third of the separate personal property and a life estate in a third of the separate land; the children take the rest (§201.002).
Both affidavits below have to list these heirs correctly. Getting the family tree right is the main job either way.
Way 1: the small estate affidavit
The heirs can take the estate without a court-appointed representative if all of these are true: there was no will, at least 30 days have passed, nobody has asked the court to appoint a personal representative, and the assets, not counting the homestead and exempt property, are $75,000 or less (Tex. Est. Code §205.001).
Two disinterested witnesses and each heir with legal capacity swear to it. It lists every asset and debt and the family history (§205.002). It is filed with the county clerk, and the judge has to approve it (§205.003). After that, the heirs hand a certified copy to the bank or anyone else holding the property (§205.004).
The house is the catch. The affidavit passes title to real property only if the homestead is the only real property in the estate (§§205.006, 205.008), and chapter 205 counts the homestead only when it could be set aside for a surviving spouse or minor children (§§205.009, 353.051). When the house would go to grown children, this path usually doesn't cover it.
Each signer is personally liable for losses caused by relying on the affidavit (§205.007(c)), so the lists must be complete. The county filing fee is $360–$404 in the counties we checked.
Does the small estate affidavit fit your family?
The free Agreedly checker asks a few questions, tells you plainly if it doesn't fit, and fills in your county's form if it does. No account.
Check the small estate affidavit →Way 2: the affidavit of heirship
An affidavit of heirship is a sworn statement by someone who knew the person who died. It sets out the marriages, children, parents and siblings where relevant, debts, taxes, real property and the heirs, in the form given in Tex. Est. Code §203.002, and it is signed before a notary.
It never goes to court. You record it in the deed records of the county where the property is, or where the person lived. Once it has been of record for 5 years, it is prima facie evidence of the family facts it states, though it doesn't cut off an omitted heir or a creditor (§203.001). Before then, a title company decides whether it's enough for a sale, so ask early.
Need to show who the heirs are?
Fill in the Texas affidavit of heirship item by item, free, ready to sign before a notary and record.
Start the affidavit of heirship →Way 3: a court case
When neither affidavit fits, the family goes to the probate court. A judge can declare who the heirs are, or appoint an administrator to settle the estate. This is the route when there is a will, when the estate is over the small-estate limit and includes land other than the homestead, or when the family disagrees. It is a full court case with its own filings, so talk to a lawyer about it.
The three paths side by side
| Small estate affidavit | Affidavit of heirship | Court case | |
|---|---|---|---|
| Goes to court? | Filed with the clerk; a judge approves it (§205.003) | No; recorded in the deed records (§203.001) | Yes |
| Who signs | Two disinterested witnesses and each heir with capacity (§205.002) | One affiant who knew the person, before a notary (§203.002) | Ask a lawyer |
| Dollar limit | $75,000, not counting homestead and exempt property | None in chapter 203 | None |
| The house | Only the homestead, for a spouse or minor children | Evidence of heirs; prima facie after 5 years | Yes |
| County cost | $360–$404 filing fee | Recording fee (ask the clerk) and notary | Court costs and lawyer's fees |
| Waiting | 30 days after the death | None in chapter 203 | Depends on the court |
What about the money the state is holding?
Search ClaimItTexas for your parent's name. The Comptroller has its own heirship affidavit, form 53-111-b, for heirs claiming that money.
When to talk to a lawyer
Before anyone signs, talk to a Texas lawyer if there is a will, land other than the homestead, more than $75,000, an heir under 18 or incapacitated, a family disagreement, Medicaid (the state's estate recovery program may have a claim), or a mortgage, reverse mortgage or home-equity loan on the house. The State Bar of Texas Lawyer Referral & Information Service offers a 30-minute consultation for $20; call 1-800-252-9690.
Frequently asked questions
Can I transfer my parent's house to the children without probate in Texas?
Sometimes. A small estate affidavit can pass the homestead only when it is the only real property and could be set aside for a surviving spouse or minor children (Tex. Est. Code §§205.006, 205.009, 353.051), so it generally doesn't cover a house going to adult children. An affidavit of heirship recorded in the deed records is the common alternative, but a title company may ask for more before a sale until it has been of record for 5 years (§203.001).
Can I close my dad's bank account without probate in Texas?
If the estate qualifies for a small estate affidavit (no will, 30 days since death, assets of $75,000 or less not counting the homestead and exempt property), the heirs give the bank a certified copy of the judge-approved affidavit and the bank pays them (Tex. Est. Code §§205.001, 205.004).
Who inherits in Texas if there is no will?
With no spouse, the children and their descendants inherit; if there are none, the parents and siblings (Tex. Est. Code §201.001). With a spouse, community property generally goes to the spouse unless the person had a child who is not also the surviving spouse's child (§201.003), and separate property is split between the spouse and the children (§201.002).
Do I need a lawyer when someone dies without a will in Texas?
Not always. Small, simple, agreed estates can often use one of the affidavits. Talk to a lawyer if there is real property other than the homestead, assets over $75,000, a minor or incapacitated heir, a family dispute, Medicaid, or debts on the house. The State Bar of Texas lawyer referral service offers a 30-minute consultation for $20 (1-800-252-9690).
Sources
- Tex. Est. Code ch. 201 — Descent and distribution
- Tex. Est. Code ch. 203 — Affidavit of heirship
- Tex. Est. Code ch. 205 — Small estate affidavit
- Tex. Est. Code ch. 353 — Exempt property and homestead
- TexasLawHelp — Small estate affidavits
- TexasLawHelp — How to draft an affidavit of heirship
- Texas Comptroller — Form 53-111-b
- State Bar of Texas — Lawyer Referral & Information Service
This article is general information about Texas estates, not legal advice, and reading it does not create an attorney-client relationship. Agreedly is not a law firm and not a government website. This product is not a substitute for the advice of an attorney.
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