[TX] Do I have to list my ex-husband on a small estate affidavit for my deceased son’s 401(k)?

TX Estate Planning

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Because your son was not married and had no children, Texas intestacy law controls who his heirs are. When both parents are living, they inherit the estate equally, regardless of divorce. All legal heirs must be listed. That means you cannot complete it on your own without listing his father. Leaving out a legal heir can invalidate the affidavit and cause the financial institution to reject it. (TX Est Code § 201.001)

The 401k company's requirement for a Small Estate Affidavit does not change who must be listed as heirs. Even if they say it is easier for you to do it alone, Texas law still requires disclosure of all heirs, including the father.

The 401K is considered part of your son’s probate estate because no beneficiary was named. Retirement accounts without beneficiaries pass under intestacy rules, not by default to one parent. (TX Est Code § 752.113)

Your son’s siblings do not inherit under Texas law when both parents are alive. They do not need to be listed as heirs on the Small Estate Affidavit, only disclosed as surviving family members if the form asks.

The life insurance proceeds you received are not part of the estate. Because you were the named beneficiary, those funds pass outside probate and do not affect the Small Estate Affidavit calculation. (TX Ins Code § 1108.051)

The house titled in your son’s name cannot be transferred using a Small Estate Affidavit. The Texas Estates Code prohibits using a Small Estate Affidavit to transfer real property unless it qualifies as a homestead, so a separate probate proceeding will be required for the house. (TX Est Code § 205.006)

Paying debts like the truck loan or credit cards does not change who must be listed as heirs. Heirship is based solely on family relationships at death, not who paid expenses afterward.

Does that help clarify things? I want to make sure I didn’t leave anything out.

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My son passed away on 11/23 of 2025. I am doing a Small Estate Affidavit for Collection of Property. He didn't leave beneficiaries on his 401K. The 401K company doesn't accept probates. Will I need to list myself? Can I do this on my own or do I have to include my ex who is his father? His 401K is $50K.

Lexi, Chatbot

I'm so sorry to hear about your son's passing; that must be incredibly difficult for you. Have you already started the process of filing the Small Estate Affidavit?

No. That's what I was told to do. I downloaded the documents and it asks about the heirs.

Lexi, Chatbot

Are there any other assets or debts involved in your son's estate that you need to address?

He has a few credit cards and an account with Yamaha I need to pay, so they don’t take the 4-wheeler away.

Legal Eagle

Hello, I’m Legal Eagle. I’m an attorney who works in your area of law and I’ll help you sort this out today. I’ve read what you shared, so let’s go over what’s happening and what your best next steps look like.

Did your son have a surviving spouse or any children, and is his father living, so we can confirm who the legal heirs are under state law?

I paid his truck off with my State Farm insurance policy I had on him. That was $61K. No spouse or children.

Legal Eagle

Thanks for letting me know. Is your son's father still living, or are there any other siblings or close relatives who might be considered as heirs?

He has a house that his dad put in my son’s name that I just learned about, but was also told that we will have to do a probate for that. The 401K company said they will not honor a probate — that I have to do a Small Estate Affidavit for Collection of Property.

My question is do I have to list his dad on that. His dad is still living. He does have a sister and brother, 22 and 14.

Legal Eagle

Understood! So you're just wondering what you need to do here, correct?

Yes, if I can do it myself and not list his dad or if I have to list him. I'm in the state of Texas. The value of the decedent's estate does not exceed the monetary limit of $75,000 imposed by the State of Texas.

Legal Eagle

Ok! I've been working on an answer while we've been chatting, so it'll just be a moment.

The 401k company told me that it'd be better and easier if I did it instead of putting in his siblings’ names. He had 2 life policies at work, and I was listed as beneficiary on those two accounts, not his dad. We've been divorced since 2009.

Legal Eagle

Ok! I've been working on an answer while we've been chatting, so it'll just be a moment.

The Affidavit for Heirship on his truck, I didn't have to list his dad because he had no Will, and of course, I paid it off, so it went in my name.

Legal Eagle

Paying debts like the truck loan or credit cards does not change who must be listed as heirs. Heirship is based solely on family relationships at death, not who paid expenses afterward.

Does that help clarify things? I want to make sure I didn’t leave anything out.

Yes, that answers my questions. Thank you.

Legal Eagle

For sure! Did I thoroughly address your question? If the answer is no, please let me know so I can help! I want to make sure I fully answered all your questions and that you feel completely supported. If there's anything else I can clarify, I'm here for you!

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