Does a Will Have to Be Probated in Texas?

Last updated on: May 16, 2023

In Texas, the probate process can seem like a daunting and confusing experience for many individuals dealing with the aftermath of a loved one’s passing. The primary concern for most is understanding whether to probate with a will or without in Texas. This article aims to provide clarity on this important question and shed light on the various factors that determine whether a will needs to be probated.

If you’re currently dealing with estate matters and need legal guidance, consulting a knowledgeable Houston probate lawyer can provide invaluable assistance in creating a living will, avoiding the probate process, and more. At The Law Office of Whitney L. Thompson, our team of skilled Houston probate attorneys may be able to help you navigate the complex legal landscape. Contact us today at (281) 214-0173 to discuss your unique situation.

Overview of Probate in Texas

Probate is the legal process of administering the estate of a deceased person to ensure that their property and assets are distributed according to their will or, in the absence of a will, according to Texas intestate succession laws. The probate process includes validating the will, if one exists, and distributing the estate, after addressing any debts, taxes, or other outstanding issues. This article will provide an overview of the probate process in Texas, including its definition, purpose, and key steps in the process.

Purpose of Probate

The purpose of probate is to ensure that the deceased person’s estate is properly administered, that outstanding debts and taxes are paid and that the remaining assets are distributed to the rightful beneficiaries or heirs. Probate safeguards the rights of the deceased person’s creditors and beneficiaries and provides an organized and transparent process for resolving claims against the estate.

Probate also serves to validate a will, if one exists. A will must typically be submitted to the probate court within four years of the testator’s death, and the court will determine if it is a valid legal document through an evidentiary hearing. If the will is found to be valid, the court will then authorize the named executor (or an appointed administrator if there is no will) to carry out the terms of the will.

Probate Process in Texas

The primary purpose of the probate process is to streamline the transfer of a deceased individual’s assets, while also safeguarding the rights of beneficiaries and creditors with a stake in the estate. In Texas, this legal procedure is overseen by the state’s Probate Courts. Generally, the probate process in Texas can be broken down into the following steps:

  • Filing Probate Application:

To initiate probate proceedings, you need to submit a probate application to the relevant county court in Texas.

  • Publishing Notice of Probate:

In accordance with Texas law, it is necessary to publish a notice of the probate application at the courthouse. This notice serves as an alert to potential creditors, beneficiaries, and other interested parties about the pending probate. Following the publication, there is a waiting period of two weeks before a hearing can be held.

  • Probate Hearing:

After the designated waiting period, a probate judge in Texas will preside over a hearing to formally recognize the passing of the decedent. As part of this procedure, the probate judge will be responsible for validating the decedent’s will, or if there is no will, designating an administrator or verifying the appointed executor.

  • Submitting Estate Inventory:

An inventory of estate property and a list of claims against the estate to the court must be submitted. The executor or administrator is responsible for compiling this information and submitting it to the court, usually within 90 days of appointment.

  • Determining Heirship:

If there is a valid will, beneficiaries will be notified by the executor. If not, a Texas probate attorney can help interested parties file a proceeding to determine heirship. All heirs must sign the application or be served with it. If there are unknown heirs, notices must be posted. All applicants must prove the details in the application through testimony. Heirs, creditors, or representatives of the deceased can initiate the proceedings.

  • Notifying Creditors:

The executor of the estate informs creditors of the decedent’s passing and allows them to submit claims against the estate. In Texas, it is legally possible to provide notice to creditors by publishing a notice in the local newspaper.

  • Resolving Will Disputes:

To finalize an estate in Texas, any disputes over a will by family members or beneficiaries must be resolved in probate court. Contesting a will must be done within two years of the original probate, and a legal representative is necessary to guide the process. The contesting party must prove the will is invalid, and there are various ways to do so, including proving forgery or excessive influence. Mediation is often recommended to settle disputes before they reach court.

  • Distributing Assets to Beneficiaries:

Once debts are settled and disputes are resolved, the remaining assets are distributed among the beneficiaries.

Before undertaking any probate process, it’s advisable to seek the help of a skilled Texas probate lawyer to ensure that the necessary steps are followed correctly and that the rights and responsibilities of all parties involved are protected. Call The Law Office of Whitney L. Thompson today to learn more about how we can help.

Types of Wills in Texas

A will is a legal document that outlines how an individual’s property and assets should be distributed after their death. In Texas, there are three main types of wills recognized by the state’s probate courts: holographic wills, formal or attested wills, and nuncupative wills. Each type serves a different purpose or situation, and it is vital to understand the distinctions, requirements, and limitations of each type to properly decide which one is best suited for your specific needs.

Holographic Wills

A holographic will, also known as a handwritten will, is a will that is entirely written, dated, and signed in the testator’s (the person making the will) handwriting. This type of will does not require a witness, and as long as it satisfies the requirements listed above, it will be considered valid in Texas. However, a holographic will does not work well for complex situations, such as large estates or blended families. Its purpose is to serve testators with relatively simple and straightforward financial situations, who desire a quick and inexpensive method to outline their final instructions.

Formal or Attested Wills

A formal or attested will is the most common type of will used in Texas. This type of will requires the testator to sign the document in the presence of at least two witnesses, who must also sign the will. To enhance the validity of a formal will in Texas, it is also recommended to include a self-proving affidavit, which is a sworn statement by the testator and the witnesses stating that they met all the legal requirements when executing the will. Formal or attested wills are more suitable for complex estates or situations that require special provisions, such as trusts or guardianships for minor children.

Nuncupative Wills

Nuncupative wills, or oral wills, are the least common and most limited type of will recognized in Texas. This type of will can only be used under specific circumstances, such as when a person is on their deathbed, or in imminent peril of death, and is unable to create a written will. The person must communicate their wishes to at least three credible witnesses, who later testify in court to the statements made by the testator. 

However, as of September 1st, 2017, oral wills are no longer valid in Texas, regardless of the circumstances. According to Texas Estates Code § 251.051, a will must be written and signed by the testator. 

Alternatives to Probate in Texas

In some circumstances, there are alternatives to probate in Texas that can save time and resources.

  • Affidavit of Heirship: When someone passes away, an affidavit of heirship can be an avenue to consider, whether or not they had a will. The affidavit requires a sworn statement from a person who has knowledge about the surviving relatives and property owned by the deceased. However, if there are unknown heirs, an affidavit of heirship may not be possible. It may be more appropriate when the only asset is real estate. Nevertheless, financial institutions are unlikely to recognize an affidavit of heirship as it has not been executed by the probate court. 
  • Small Estate Affidavit: A small estate affidavit is available for estates with a value of $75,000 or less, excluding the value of the deceased person’s homestead and exempt property. The affidavit must be signed by all heirs and filed with the court, along with a copy of the death certificate. Once the affidavit is approved, the court will issue an order allowing the transfer of assets without going through the formal probate process.
  • Independent Administration: Independent administration is a type of probate that allows the executor or administrator to carry out their duties without direct supervision from the court. This can save time and resources, as it streamlines the probate process. Independent administration is available in Texas if the deceased person will specifically allow it, or if all heirs agree to it.
  • Muniment of Title: A muniment of title is a unique probate alternative in Texas that can be used when the deceased person’s only asset is real property, and there are no debts other than secured debts. A will can be admitted as a muniment of title, allowing for the transfer of the property without the need for formal administration. This process is often quicker and less expensive than traditional probate.

Property Exempt from Probate

Probate is a legal process that occurs after a person’s death to distribute their assets and pay debts. However, not all assets need to go through probate, as there are certain types of property that can pass to beneficiaries without court involvement. Understanding how these assets are treated is essential for anyone involved in the probate process.

Non-Probate Assets in Texas

Non-probate assets are properties that don’t need to go through the probate process. These properties transfer directly to the beneficiaries without court involvement. In Texas, non-probate assets include:

  • Life insurance policies: When an insured person dies, the proceeds from their life insurance policy go directly to the named beneficiaries. The insurance company pays out the benefits without any need for probate.
  • Retirement accounts: If a person has a retirement plan, such as a 401(k), IRA, or pension plan, they can designate beneficiaries to receive the proceeds upon their death. These funds then bypass probate and are transferred directly to the beneficiaries.
  • Payable-on-death (POD) and transfer-on-death (TOD) accounts: In Texas, people can set up bank accounts and brokerage accounts to transfer directly to a designated beneficiary upon their death. This avoids probate and allows the funds to pass to the beneficiary without court involvement.
  • Trusts: Property held in a trust does not go through probate. Instead, the trust assets are distributed according to the terms of the trust agreement without court supervision.

Community Property in Texas

Texas is a community property state, which means that certain property acquired during a marriage is considered to be owned equally by both spouses. In Texas, the following types of property are generally considered community property:

  • Property acquired during the marriage, except by gift or inheritance
  • Income earned by either spouse during the marriage
  • Debts incurred during the marriage

At death, the surviving spouse automatically retains ownership of their one-half interest in the community property without probate. The deceased spouse’s one-half interest may need to go through probate to transfer to the beneficiaries.

Joint Tenancy with Right of Survivorship

In Texas, when two or more people own property jointly with the right of survivorship, the surviving owner(s) automatically inherit the deceased owner’s share upon their death. The property does not have to go through probate before it is transferred, making this form of ownership an effective way to avoid the probate process.

Role of Executors and Administrators in the Probate Process

The probate process can be a complex and daunting task for those who are not familiar with it. Executors and administrators play an important role in this process as they are responsible for managing the affairs of a deceased person’s estate. Both executors and administrators have specific duties and responsibilities, which may include managing assets, paying debts and taxes, distributing property to beneficiaries, and ensuring that the wishes of the deceased person are carried out. Understanding the role of executors and administrators in the probate process is crucial for anyone who may be involved in managing the affairs of a deceased person’s estate.

Executor Duties:

When you pass away, the executor of your will is the individual you designate to carry out your desires. If you have a legally recognized will at the time of your death, a judge will authorize the executor you have identified to take action on your behalf. This may entail settling any unpaid debts with the funds remaining from your estate, dividing your assets and money among your beneficiaries, and other tasks.

Administrator Duties:

If an individual passes away without leaving behind a Last Will and Testament, the Probate Court in Texas will assign an administrator as per the Texas Estate Code. The appointed administrator assumes the responsibility of managing the estate and has a fiduciary obligation towards it. This entails overseeing tasks such as gathering the estate’s assets, clearing any outstanding debts and taxes, and equitably allocating the estate’s resources. Additionally, the administrator must prioritize the beneficiaries’ and estate’s best interests while fulfilling their duties, placing them ahead of their own interests.

Consequences of Avoiding Probate

While avoiding probate can save time and reduce expenses, there are also potential consequences that should be considered.

  • Lack of court supervision: Probate provides a court-supervised process for distributing an estate, which ensures that an estate is properly administered and that creditors’ claims are addressed. In the absence of probate, the distribution of assets may be less certain, and disputes among heirs or beneficiaries may be more likely.
  • Difficulty managing non-probate assets: While non-probate assets can avoid the probate process, managing these assets can be more complicated for surviving loved ones. For example, transferring the title of a house held in a revocable living trust may require additional steps and interaction with the trustee.
  • No assistance with outstanding debts: Probate offers a structured process for dealing with the decedent’s outstanding debts. In the absence of probate, surviving loved ones may be left to address creditor claims on their own.
  • Potential tax consequences: In some cases, avoiding probate may result in unfavorable tax consequences for beneficiaries. For example, certain assets held in a revocable living trust may not receive a step-up in basis upon the decedent’s death, which can lead to increased tax liability for the beneficiary.

Overall, while avoiding probate can offer significant benefits in terms of time and expense savings, it is essential to carefully evaluate the potential consequences and consult with an experienced Houston estate planning attorney to determine the best course of action for your specific circumstances.

Role of Probate Courts in Texas

Probate courts in Texas are dedicated courts established to administer the probate process, including the validation of wills, administration of estates, the appointment of estate representatives, probate litigation, and guardianship matters.

Some of the key duties of probate courts in Texas include:

  • Validating wills: Probate courts review and validate wills to ensure that they meet the legal requirements, such as proper execution, testamentary intent, and testamentary capacity. If a court finds a will to be valid, it will appoint an executor or personal representative to carry out the administration of the estate.
  • Administration of estates: The probate court oversees the administration of estates, ensuring that the deceased’s assets are properly managed, debts are paid, and the remaining assets are distributed to heirs and beneficiaries according to the provisions of the will or state law if no will exists.
  • Probate litigation: When disputes arise among beneficiaries or other parties with interest in the estate, the probate court will hear the case and resolve the matter according to the law. Examples of probate litigation include will contests, disputes over the interpretation of will provisions, and breaches of fiduciary duty by estate representatives.
  • Guardianship matters: The probate court also handles guardianship matters, appointing guardians for minor children or incapacitated adults and supervising the management of their assets and well-being.

Choosing a Skilled Probate Lawyer in Texas

Navigating the complex process of probate can be overwhelming, particularly during the emotional time following the loss of a loved one. In Texas, having a skilled probate lawyer by your side can make all the difference in ensuring that your loved one’s estate is distributed efficiently and in accordance with their wishes. When seeking a competent probate attorney, it is important to consider factors such as experience, communication skills, and reputation in order to make the best decision for your family’s needs.

At The Law Office of Whitney L. Thompson, our team of experienced Houston probate lawyers are dedicated to providing compassionate and comprehensive legal guidance throughout the entire probate process. With years of experience in handling a wide range of probate cases, our attorneys possess the knowledge necessary to handle even the most complex estates. Contact us today at (281) 214-0173 to schedule a consultation.

Contact Us
We are here to help