Probate in Texas: small estates, no will, and how to skip court

Updated 2026-10-16 · Expert review in progress

The short answer

In Texas, a small estate affidavit can settle an estate worth $75,000 or less, not counting the homestead and exempt property, but only when there is no will, and a judge must approve it. Estates with a will and no unpaid debts often use a muniment of title instead. A will generally must be probated within four years of death.

When someone dies in Texas, the family's first question is usually practical. Do we have to go to court, and for how long? The answer depends on whether there is a will, what the estate holds, and whether any debts are left.

This page covers who inherits without a will, who is appointed to handle things, the small estate affidavit, the shortcut for wills, and ways to keep the house out of court entirely. It is part of our guides to estate planning by state. If you're new to the word, start with what probate is.

Who inherits if there is no will?

Texas splits an estate into two kinds of property (Estates Code 201.001 to 201.003). Community property and separate property follow different rules, and the difference matters most when someone was married.

Situation	Who inherits
Married, community property, all children are with the surviving spouse (or no children)	Surviving spouse takes all of it
Married, community property, the deceased had a child from outside the marriage	Deceased's half goes to their children; the spouse keeps their own half
Married with children, separate property	Spouse: one-third of personal property and a life estate in one-third of the land. Children: the rest
Married, no children, separate property	Spouse: all personal property and half the land. Other half of the land: parents, siblings and their descendants (all to the spouse if there are none)
Not married	Children and their descendants; then parents and siblings; then more distant relatives on both sides of the family

That second row surprises many second marriages. A surviving spouse can lose half the community property to stepchildren.

Two smaller rules. An heir must outlive the person by 120 hours to inherit. And half-blood relatives take half the share of whole-blood relatives. Our page on dying without a will covers what happens when there are few or no close relatives.

Who is appointed to handle the estate?

The court grants authority in this order (Estates Code 304.001):

The executor named in the will.
An administrator designated under the Estates Code.
The surviving spouse.
The principal beneficiary of the will, then any beneficiary.
Next of kin, nearest first.
A creditor.
Any person of good character living in the county who applies, then any other qualified person.
A public probate administrator.

An executor can live outside Texas. They must appoint a Texas resident agent to accept legal papers for the estate and file that appointment with the court (Estates Code 304.003). That matters if your sister in another state is the one you trust.

The small estate affidavit

The Texas small estate affidavit is a way to settle a modest estate without appointing anyone (Estates Code 205.001 to 205.008). It has strict conditions.

Requirement	Check
The person left no will
At least 30 days have passed since death
No petition for an executor or administrator is pending or granted
Assets, not counting the homestead and exempt property, are worth $75,000 or less
Sworn by two disinterested witnesses and each heir who has capacity
Filed with the court clerk and approved by the judge

It does not transfer real estate, with one exception. A homestead can pass under it if it is the only real property, and the affidavit must then be recorded in the county deed records.

If there was a will, this route is closed. The chapter does not apply to property passing under a will.

If there is a will: muniment of title

Texas has a shortcut for wills. A court may admit the will to probate as a muniment of title, with no administration at all (Estates Code 257.001). It fits when the estate owes no unpaid debts other than debts secured by liens on real estate, or the court finds no other need for administration.

In plain terms, the will itself becomes the record of who owns what. Nobody is appointed to manage the estate.

The four-year deadline

This one is unusual and worth flagging. Generally a will can't be admitted to probate after the fourth anniversary of death, unless the person applying was not in default (Estates Code 256.003). And if a will is admitted after four years, letters testamentary can't be issued unless the application was filed within the four years.

So a will left in a drawer has a clock on it. Tell your executor where the original is.

Independent administration and creditors

When a full probate is needed, Texas offers independent administration, with little court supervision (Estates Code 401.001 to 401.004). It is available if the will provides for it, or if all heirs agree and the court finds it in the estate's best interest. With no will, the court first determines who the heirs are. A will can also prohibit it.

Within one month after receiving letters, the executor must publish a notice to creditors in a county newspaper (Estates Code 308.051). Within two months, notice goes to secured creditors. The executor may also send an optional notice to an unsecured creditor, who then has until the 121st day after receiving it to come forward (Estates Code 308.054). Our executor checklist lays out the steps in order.

How much does a Texas executor get paid?

An executor or administrator who manages the estate properly gets 5 percent of cash actually received or paid out, capped at 5 percent of the estate's gross value (Estates Code 352.002). The exclusions are large. There is no commission on:

Cash on hand, or in bank or brokerage accounts, at death.
Life insurance proceeds collected.
Cash paid to heirs or beneficiaries as such.

So the fee is often much smaller than "5 percent of the estate." The court can allow reasonable pay instead if the executor runs a farm, ranch or business, or if 5 percent is unreasonably low. It can also reduce or deny pay for poor management. Our page on what executors are paid compares this nationally.

Ways to skip court in Texas

Some of the best probate planning happens while you're alive.

Transfer-on-death deed. Texas lets you record a deed that passes your home at death (Estates Code 114.051). It must be recorded in the county deed records before you die. It is always revocable, and the beneficiary doesn't need to be told or agree.
Revocable living trust. A Texas trust is revocable unless the document expressly makes it irrevocable (Property Code 112.051). Property in the trust is handled by your trustee, outside probate. See what a living trust is.
A self-proved will. If probate is needed, a self-proved will can be admitted without witness testimony (Estates Code 251.101).

Our national page on how to avoid probate covers the other common tools.

Someone still has to do the work: find the accounts, pay the final bills, look after the house. A Kinly membership includes a will and revocable trust written for your state, and Trella Trust Company, a Washington State chartered trust company, can be named executor or trustee, first or as backup to family. The executor and agent roles are covered for Texas in our power of attorney guide and medical power of attorney guide.

Does Texas have an estate or inheritance tax?

No. Texas has no estate tax and no inheritance tax. The old inheritance tax is not collected for deaths on or after January 1, 2005, and was repealed in 2015 (Texas Comptroller). A constitutional amendment added November 4, 2025 bars the legislature from imposing a state estate, inheritance or death tax (Texas Constitution Article 8, Section 26). The federal estate tax can still apply to very large estates.

Common questions

What is the small estate limit in Texas?

$75,000, not counting the homestead and exempt property. The person must have died without a will, 30 days must have passed, and a judge must approve the affidavit.

Can you use a small estate affidavit in Texas if there is a will?

No. The small estate chapter does not apply to property passing under a will. If the estate has no unpaid debts other than real estate liens, a muniment of title is often the simpler route.

How long do you have to probate a will in Texas?

Generally four years from the date of death. After that, a will can be admitted only if the applicant was not in default, and letters testamentary usually can't be issued.

Does a Texas executor get 5 percent of the estate?

Not exactly. The fee is 5 percent of cash received or paid out, capped at 5 percent of the estate's gross value, and it excludes bank cash at death, life insurance proceeds and payments to heirs. It is often much less.

Does Texas have an inheritance tax?

No. Texas has no estate or inheritance tax, and a 2025 constitutional amendment bars the legislature from creating one. Federal estate tax can still apply.

Sources

This page is general information, not legal or financial advice. Laws vary by state.

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