Small estate affidavit without a will: who signs and who gets what
Without a will, the affidavit does two jobs: it collects the property, and it declares who the heirs are under the state's intestacy statute. Every heir has to be listed with their share, and in most states every heir signs.
Who the heirs are
The pattern is similar everywhere: a surviving spouse takes all or most; children share what the spouse doesn't take; with no spouse or children, parents, then siblings. The exact fractions differ — Texas gives community property to the spouse but separate property partly to children; California distinguishes community and separate property too. The affidavit form usually has a family-history table for exactly this.
State specifics
- Texas — the only route that works without a will under $75,000; two disinterested witnesses must swear to the family history.
- Florida — without a will and no probate for one year, the disposition can release up to $10,000 above final expenses.
- Missouri — over $15,000 without a will, a bond is required.
- Illinois — the affidavit lists each heir and their fractional share; the affiant is liable for distributing correctly.
Common questions
Who can sign a small estate affidavit without a will?
The heirs under intestacy law — typically the surviving spouse and children. Most states require all of them to sign or consent; a single heir can sign only when they are the sole heir.
What if we don't know all the heirs?
Stop. An affidavit that omits an heir is false and exposes the signer to liability. A determination of heirship (a court proceeding) resolves it.
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