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Texas Probate Quick Guide

  • By:Riddle and Butts

The Texas probate process is generally much more efficient as compared to other jurisdictions in the United States, as most estates are administered independent of court supervision.

Demystifying Probate Terminology

Before you begin reviewing the probate process in this Texas probate guide, it makes sense to familiarize yourself with the terminology used by the courts and probate attorneys:

  • Decedent – the deceased person;
  • Beneficiaries – the individuals or organizations that will receive the deceased’s assets;
  • Estate – assets or property, such as cash, real estate, life insurance policies, vehicles, and other items of value;
  • Executor – the person in charge of managing the estate, such as complying with court requirements and arranging the distribution of assets;
  • Administrator – a court-appointed person that acts as an executor where there is no valid will in place.

Texas Probate Guide: The Eight-Step Process

Probate is the legal term that describes the transfer of title to assets from a deceased person to the deceased person’s heirs or beneficiaries. The court’s job is to oversee the payment of debts and the distribution of assets from the decedent’s estate and protect the interests of creditors and beneficiaries.

If the decedent died testate, or with a will, the will’s executor or nominated personal representative should file the will for probate if administration of the estate is necessary.

Wills must be filed for probate within four years of the testator’s death; but, there are remedies in the event a will is filed after such time. The testator is the person that signed the will (i.e., the decedent).

In the event the decedent failed to leave a will, Texas intestacy laws will take effect and determine how the estate’s property gets distributed to the heirs.

The following part of this Texas probate guide describes the eight-step probate process:

  1. Filing

The probate process begins with an application for probate getting filed at the relevant Texas probate court. There are approximately 18 statutory probate courts across ten Texas counties:

  • Bexar County (San Antonio);
  • Collin County (McKinney);
  • Dallas County (Dallas);
  • Denton County (Denton);
  • El Paso County (El Paso);
  • Galveston County (Galveston);
  • Harris County (Houston);
  • Hidalgo County (Edinburg);
  • Tarrant County (Fort Worth); and
  • Travis County (Austin).

The probate is filed in the county where the decedent was domiciled. If such county did not have a statutory probate court, the probate is filed in either the county court at law or constitutional county court.

  1. Notice Posting

Once the application for probate is filed, there is an approximate fourteen-day waiting period before a hearing may occur.

The county clerk posts a courthouse notice confirming the application, allowing anyone to contest the will. Should there be no objections to the application, the hearing proceeds as expected.

  1. Validation of Will

The third stage of the Texas probate process involves admitting the will to probate. A judge presides over the hearing and formally recognizes the death of the testator and admits the will to probate upon the testimony of an interested person and perhaps other witnesses.

At the hearing, the judge will also confirm that either there is a valid will in place or there was no will signed by the decedent. If the former applies, the judge will admit the will to probate and appoint the individual named as executor.

  1. Cataloging of Inventory Assets

Once an executor or administrator is appointed and qualifies, they must provide a full report of all property held by the estate within three months and this report is called an Inventory, Appraisement, and List of Claims. However, if the estate has no creditors, an Affidavit in Lieu of Inventory may be filed with the court instead.

The person in charge of administering the estate must catalog inventory assets and provide full descriptions and accurate valuations of each item.

In some cases, if there is no unpaid debt owing from the estate, the executor can file an Affidavit In Lieu Of Inventory to avoid presenting a report, but only if the following applies:

  • The only debts are secured debts, taxes, and estate expenses; and
  • All beneficiaries have received a complete inventory.

The main reason to file for an Affidavit In Lieu Of Inventory is to prevent the asset details from appearing on public record in order to maintain the decedent’s privacy and that of family members.

  1. Identification of Estate Beneficiaries

Assuming there is a valid will in place, the estate’s executor must contact all beneficiaries and provide such beneficiaries with a copy of the will. However, if there isn’t a will, the Texas probate court must prove heirship.

In the latter case, and with the help of a Texas probate attorney, potential interested parties can file a proceeding to determine the heirship of the decedent.

Secured creditors or qualified representatives of the decedent can also initiate heirship proceedings. The law requires notice of heirship proceedings be published in a newspaper and at the courthouse.

  1. Creditor Notification

Many people will usually have debts when they die. Debts like mortgages, medical, and credit card expenses must be addressed in the administration process.

Sometimes, the estate’s executor only needs to publish a notice in a local newspaper to satisfy their legal obligations for notifying creditors. However, in the event the decedent had secured debts, the executor must notify secured creditors. In addition, the executor may notify unsecured creditors and require such creditors to file a claim within four months of such notice lest such unsecured creditor claim be barred by statutes of limitation.

  1. Dispute Resolution

Sometimes, there can be unresolved disputes, such as beneficiaries contesting a will or filing other proceedings like a demand for accounting. Common grounds for will contests include:

  • Lack of Capacity;
  • Undue Influence; and
  • Improper execution.
  1. Asset Distribution

The final step of Texas probate involves distributing the assets from the decedent’s estate. Generally, all valid claims are settled, funeral expenses are paid, expenses in last illness are paid, family allowances are addressed, and finally distribution to the beneficiaries occurs. When distribution is made, the beneficiaries will be asked to sign a Receipt and Release acknowledging that they received what they were entitled to under the will and releasing the executor from all wrongdoing. In the event a beneficiary refuses to sign such Receipt and Release, the executor is well within his or her rights to seek a judicial discharge from the judge. The cost of such judicial discharge is most often taxed to the assets of the estate as an administration expense.

Do I Need a Probate Bond?

Most independent administrations in Texas proceed without the executor or administrator being bonded. However, even in an independent administration a beneficiary can ask the court to require the executor or administrator to serve with bond.

All dependent administration in Texas proceed with a bonded executor or administrator.

How Long Does the Probate Process Take?

A simple probate case can be concluded within four to six months. However, it can take much longer if there are complications or supervision by the court is necessary.

Final Thoughts

Settling a decedent’s estate can sometimes get complicated or even messy if there are disputes between beneficiaries or heirs, the decedent dies with an taxable estate (an estate valued in excess of $11,700,000 in 2021), the decedent has a blended family, or the decedent’s estate contains numerous or large creditor claims.

When you have an experienced probate attorney, they will guide you through every step of the process, resulting in cost savings and an efficient and proper estate administration.

Posted in: Probate & Estate Administration