Navigating the Texas Probate Process After a Loved One’s Death

By: Robinson & Henry, Attorneys At Law
PublishedMar 26, 2024
10 minute read

Dealing with a loved one’s passing is hard enough. Trying to manage their property, debts, and assets while you grieve can feel overwhelming. Still, one of the last loving gestures you can make for the recently passed is to settle their estate. You might not know where to start, but that’s okay. This guide aims to simplify the probate process and ease your stress in this difficult time. Navigating the Texas probate process after a loved one’s death doesn’t have to be a struggle.

Bottom Line:

The Texas probate process can be complex. It’s important to plan ahead of time in case the deceased person did not make preparations.

In This Article:

What is Probate? 

You’ve heard the phrase “You can’t take it with you when you die.” That simple truth sits at the heart of every probate matter.

When someone passes on, they leave behind all their money, property, and debts. Probate is the legal process for sorting it all out. Under the court’s watchful eye, a deceased person’s debts get settled, and then their remaining assets are distributed to rightful heirs and beneficiaries.

Passing With or Without a Will 

When the decedent leaves a will, the court confirms its validity, then chooses someone to take care of the estate. This person, called an executor, is responsible for carrying out the decedent’s wishes as expressed in their will.

If there’s no will (the person dies “intestate”) the court appoints an administrator to settle the estate and distribute remaining assets. Surviving spouses and blood relatives are first in line to receive those assets.

All of this may seem straightforward in writing, but unfortunately, it’s often more complicated.

When Do You Need Probate in Texas? 

When a person dies without a will, probate becomes necessary to distribute assets that do not pass directly to the decedent’s heirs or beneficiaries.

For example the following assets pass outside of probate:

  • Property that is in a living trust,
  • Jointly owned property with a right of survivorship,
  • Community property with a right of survivorship,
  • Payable on death or transfer on death bank accounts,
  • Transfer on Death Deed for real property,
  • Life insurance policies with beneficiaries named,
  • Retirement policies with beneficiaries named (IRA, KEOGH, Pensions, Profit Sharing Plans, 401k), and
  • Trust assets.

With or without a will, no assets or property can pass down without first passing through probate. This is also called “getting probated.”

“Except as provided by Subtitle K with respect to foreign wills, a will is not effective to prove title to, or the right to possession of, any property disposed of by the will until the will is admitted to probate.” — Texas Estate Code, Section 256.001

Types of Probate Administration in Texas 

Texas offers various probate administration types for different situations. Knowing which of these best suits your matter can make the process smoother. The primary types of probate in Texas are:

  1. Independent Administration
  2. Dependent Administration
  3. Muniment of Title
  4. Small Estate Affidavits

Texas Estates Code mandates specific accounting protocols for independent and dependent administrators, such as requiring an annual sworn statement detailing:

  • estate income,
  • expenses,
  • remaining assets, and
  • creditor claims.

At the end, a final probate accounting is required. These cumbersome requirements ensure court oversight and transparency to heirs and beneficiaries regarding estate management.

Independent Administration 

The executor/administrator has the authority and autonomy to settle the estate without court supervision. This is the most efficient, most cost-effective, and most common type of probate in Texas.

With independent administration, the executor can sell assets, pay debts, and distribute assets to beneficiaries. The court mostly stays out of the process. —  ex. Estate Code, Chapter 402

A will must specify the testator’s desire for independent administration. Otherwise, all the heirs must agree to this type of probate, and ask the court to allow it. Due to the lack of oversight by the court, independent administration requires a high level of trust in the executor.

Dependent Administration 

Dependent administration is useful when the probate process is expected to be contentious or challenging. In this process, the executor/administrator has very narrow authority. In fact, they must get court approval for all decisions.

While dependent administration can be slower and more expensive, the process must remain open for at least six months. This method helps to prevent mismanagement and safeguards everyone’s interests.

Scenarios calling for dependent administration include:

  • disputed wills,
  • non-existent wills,
  • large or complex estates, and
  • disagreement or distrust among heirs or beneficiaries.
Dependent Administrator Bond Requirement 

Every dependent administrator or executor must post a bond as insurance to guarantee their proper conduct. If an administrator improperly manages the estate’s assets, the bond covers any losses. The court determines the bond’s amount, and the estate pays an annual premium, similar to insurance policies. Administrators need good credit to qualify for this bond.

Muniment of Title 

Muniment of Title is one of the easiest, least expensive, and quickest probate method in Texas. However, it can only be used in specific circumstances. If the decedent …

  • left a valid will,
  • had no unpaid debts, excluding those secured by a lien on real estate, and
  • the court finds no other reason for an administration of the estate.

… then there’s no need for regular probate administration, or even an executor. Rather, the will becomes evidence of the transfer of title to the estate’s assets. — Tex. Est. Code 257.001

Small Estate Affidavits 

Another fast and affordable way to transfer property after someone died is by a Small Estate Affidavit — Texas Est. Code 205.001 

A Small Estate Affidavit can be used when:

  • Decedent left no will;
  • Decedent left no more than $75,000 in property (not including homestead property, exempt property, and other non-probate property);
  • The assets are worth more than the debts;
  • The only real property decedent owed was the decedent’s homestead property;
  • The homestead property will be inherited only by the decedent’s surviving spouse or minor children; and
  • There is no pending application for the appointment of a personal representative.

Those who are entitled to inherit can submit an affidavit to receive their inheritance. The affidavit must be sworn to by:

  • all recipients (or someone with legal authority to sign on their behalf and
  • two witnesses who have no personal interest in the matter.

The Probate Process in Texas: Five Steps

Probate is a legal process that ensures a deceased person’s estate is properly settled, and that remaining assets go to rightful heirs and beneficiaries. Here’s how it works in five steps:

Step One: Filing the Will and Application for Probate 

Once someone with an established will has died, the first step is to file the will in court. You do this at the county clerk’s office in the county where the decedent lived prior to their passing. You must do this within four years of the decedent’s death.

With the will you will also file the application for probate, referred to as either “Application for Probate of Will and Issuance of Letters Testamentary” or — if no will exists — “Application for Administration and Issuance of Letters for Administration.” — Texas Est. Code 301.002 

While filing the will, you must also file a written application asking the court to:

  1. formally accept the will, and
  2. appoint an executor/administrator of the decedent’s estate.

The executor, typically named in the will, oversees the decedent’s final affairs, including:

  • paying off debts,
  • settling taxes, and
  • distributing the decedent’s assets in accordance with the will, or state law.

If the will does not name an executor, the court will choose a responsible person to do the job. It can be the individual who filed the will, providing he or she is trusted by the decedent’s family.

Public Notice and Waiting Period 

After the court accepts the will, the county clerk will post a public notice for all interested parties. The notice remains posted for at least 10 days, some counties will leave it posted for 2-4 weeks in case anyone comes forward to contest the will. After this time period elapses, if no challenge arose, the process moves to the next step, the hearing.

However, that narrow 10 day window is not the only opportunity anyone has to contest the will. In Texas, a will can be challenged for up to two years after it has been admitted for probate. — Tex. Estate Code 256.204

How Long You Have to File 

In Texas, you have four years from the date of the person’s death to begin probate proceedings. The process becomes much more complicated after that timeframe.

Step Two: The Hearing 

This hearing takes place after the will and/or application for probate has been filed. The hearing goes before a judge, but not necessarily in a courtroom. It can be held by teleconference, or zoom. At this hearing, the judge will:

  • confirm the decedent’s death,
  • assess the suitability of the chosen executor or administrator, and
  • check the validity of the will.

If the will gets approved, the judge admits the will to probate, appoints the executor, and issues “letters testamentary” to the executor which serve as notice to third parties that the executor hsa authority to act on the estate’s behalf.. These actions give the executor legal authority to access and gather assets, and then distribute them in accordance with the will.

Validating the Will 

For a will to be valid in Texas, the person making it must be “of sound mind” and at least 18 years of age.  If hand-written, it must be entirely written and signed by the testator, the person making the will.

The will must express testamentary intent. It must be clear that the person intended to make a will, and to leave assets to specific persons or organizations after their death. If the will is typed, then it must include:

  1. Signed attestation by two witnesses over the age of 14, and
  2. Confirmation that the person making the will witnessed the signatures by both witnesses.

Neither of the two attesting witnesses can be beneficiaries of any part of the will. They must be neutral observers.

A Self-Proving Will 

In Texas, it’s a good idea to notarize wills. This can include a special clause that makes the will ‘self-proving.’  This doesn’t automatically make the will valid. However, it speeds the will’s process through probate court by easing certain procedures.

Step Three: Taking Inventory and Appraising the Estate 

The executor must take inventory of the deceased person’s assets. This means listing and appraising the value of all property, personal items, bank deposits, and other assets. The executor must complete this task within 90 days after the probate hearing.

Fortunately, an experienced Texas probate attorney can assist in this process.

Assets Inventoried 

Common examples of assets include:

  • Real estate (e.g., primary residence, rental properties, vacant land, etc.);
  • Personal vehicles;
  • Bank accounts;
  • Stocks and bonds;
  • Personal property such as jewelry, artwork, and family heirlooms; and
  • Business ownership and interests.

Making a list is only part of the administrator’s duty here. Next, he or she must assign a fair market value to each asset.

Then, the executor/administrator informs the will’s beneficiaries of the assets and their value. Texas used to require filing this inventory with the public record of the probate. Now, it’s more common that beneficiaries agree to waive this step.

The executor then files an affidavit with the court attesting that all beneficiaries have been provided the inventory list.

Settling Outstanding Debts and Taxes 

Some see this resolving debts and taxes as an entirely new step because of its importance. However, it can be thought of as part of the inventory process: settling debts and taxes.

The executor/administrator takes inventory of money owed by the decedent at the time of death. These are any lingering debts, such as:

  • income and estate taxes,
  • loans and credit cards,
  • certain medical expenses,
  • funeral costs,
  • charitable gifts, and
  • other personal debts.

Next, the executor (or their attorney) posts a public notice to any creditors who may file claims against the estate. A newspaper with general circulation in the county where the probate has been filed publishes the notice. Certain secured creditors, such a mortgage or auto lender, must be notified by mail if someone owing them money has died.

It may be necessary to sell off certain assets to settle all of an estate’s debts.

Step Four: Resolving Disputes

The estate cannot be settled while any disputes over it remain unsettled. Typically, disagreements arise over asset value, creditor claims, or even the will itself.

Often, the executor finds his or her own role questioned. His or her priority is to settle the estate and satisfy the will. This task can sometimes clash with the personal interests of certain beneficiaries. Executors and administrators are sometimes accused of putting their own interests over the directives of the will.

Most disputes can be resolved outside of court, through mediation, and with the help of an experienced probate attorney. When parties remain at an impasse, a normal probate matter can spiral into prolonged, expensive litigation.

Common Probate Disputes 

Conflicts over the settlement of an estate can take many forms. Disputes most likely to result in litigation include:

  • Challenging the validity of the will (lack of testamentary capacity),
  • Disagreements over the terms or meaning of the will,
  • Missing assets in the will,
  • Due execution of the will (signatures are not valid),
  • Accusations that an executor/administrator has mishandled the estate,
  • Misuse of power of attorney,
  • Breaches of fiduciary duty, and
  • Challenging the validity of a deed, or insurance policy.

When a dispute leads to a court battle, it’s important to have an attorney experienced in probate litigation. Many lawyers draft and prove up wills, but not all handle estate-related lawsuits. Indeed, litigating probate disputes requires a different skill set entirely.

Power of Attorney 

A power of attorney (POA) is a document allowing a designated agent to make certain decisions for the decedent. Typically, this agent is a close family member, a trusted friend, or even the principal’s attorney. There are three kinds:

  1. A financial power of attorney gives the designated agent authority to act on the principal’s behalf with respect to finances, property, and assets.
  2. A medical power of attorney allows the agent to make important health care decisions for the principal.
  3. A limited power of attorney gives the agent authority over a narrow set of circumstances designated by the principle.

Often, an executor has obtained at least a financial power of attorney while the testator was still living. This, however, does not excuse them from objectively carrying out their fiduciary duties.

Fiduciary Duty of Executors and Administrators 

An executor/administrator must look after the estate with great care. They must always act in the beneficiaries’ best interests and not for personal gain.

In Texas, the testator (writer of the will) can choose their executor. However, with enough evidence, the court can remove an executor for self-dealing or poor management of the estate. — Texas Est. Code 404.0035 (b) (2) 

Step Five: Distributing Residual Assets 

Once debts and taxes are settled, remaining assets are distributed to the named beneficiaries in the will. If no will exists, then state law determines who inherits these assets.

Generally, in Texas, the order of succession entitled to assets is as follows:

  • the surviving spouse,
  • any children or grandchildren,
  • living parents,
  • siblings,
  • grandparents
  • aunts and/or uncles,
  • additional extended family

For example: If the deceased was married with children, the spouse typically inherits the community property. Next, the personal property is divided, with one-half to the spouse and one-half to the surviving children.

This process can be complex, especially if many heirs are involved or there are disputes. Some heirs may be difficult to track down.

Non-Probate Assets 

Again, not all assets go through probate. Many can be passed directly to the person they were expressly intended for. Such assets include:

    • IRA or 401K retirement funds,
    • Proceeds from life insurance policies,
    • Any Transfer on Death (TOD) or Payable on Death (POD) accounts,
    • Jointly titled property with right of survivorship (name on title)

Simplifying the Texas Probate Process 

Certain challenges that arise during probate can be eliminated — or at least mitigated — by taking proactive steps.

One common holdup is simply tracking down and managing assets. Depending on the size of the estate, or the secrecy of the deceased, it can be easy to overlook important assets.

The following proactive steps can make the process easier:

  1. Get Organized: Quickly sort all estate-related paperwork. Set aside ample time for probate, as it can be lengthy. Keep copies and secure originals of all court documents.
  2. Make Plans and Communicate: Clearly communicate with beneficiaries and understand their wishes. Without a will, consider setting up a trust for multiple beneficiaries. Verify legal eligibility for receiving items like firearms. Know the locations and details of all assets (property deeds, car titles, bank and investment accounts, etc).
  3. Consider Legal Guidance and Tax Matters: Seek an estate professional to become the official executor and legally manage the estate. Obtain an EIN from the IRS for the estate and handle its taxes separately. Record all financial transactions meticulously for potential court reporting. File estate tax returns as needed during probate.
  4. Keep Documents Handy: Do not shred or lose track of any documents before thoroughly examining them. It is not uncommon for investment and/or bank accounts with considerable amounts of money stored in them to be located after the probate process is completed.

Get the Right Help in Your Texas Probate Matter 

Handling a loved one’s estate is a personal process. Consider consulting an experienced probate attorney to help you reduce your stress during this time. Call 214-884-3775 to begin your case assessment.

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