When must a will be probate in Texas?

Texas probate is notably simpler than many other states, thanks to something called the "independent administration" of estates. Using this process, most Texas executors wrap up estates with very little court supervision.

When Probate Isn't Necessary

Assets that can be transferred to the new owner without probate include:

Kinds of Texas Probate

Texas has several types of probate and other estate proceedings. Below, we discuss the types of estate proceedings you might encounter in Texas.

Formal Probate in Texas

Formal probate proceedings are likely required if the estate (the amount of property the deceased person left behind) is less than $75,000, not counting certain types of exempt property. (Tex. Est. Code Ann. §§ 205.001.) This is true whether the deceased person had a will or not. However, formal probate proceedings in Texas can vary in the amount of oversight provided by the Texas probate court. Formal probate can be either:

• independent estate administration, or
• regular estate administration (also called "dependent" estate administration).

Most Texas wills direct the executor to pursue independent administration, because it's quicker, simpler, and less expensive. The executor is, for the most part, able to act independently. Even if the will doesn't provide for independent administration (or there isn't a will at all), the executor or administrator can ask the court for authority to act as an independent executor if all beneficiaries agree.

Independent administration means the executor:

• does not have to post a bond (an insurance policy protecting the estate against losses caused by the executor's careless or dishonest acts)
• does not have to ask court permission before taking many steps to settle the estate, such as paying debts, setting aside a family allowance, selling estate property, and distributing assets to the people entitled to inherit them.

An independent executor still must publish notice to potential creditors and file an inventory of assets with the court. The executor must collect and safeguard estate assets until it's time to transfer them to their new owners.

Although it's less common, executors can also request dependent administration, which entails greater court supervision of the probate process. If the estate is going through a dependent administration, the executor or personal representative can act for the estate only after obtaining a court order authorizing that particular act.

Muniment of Title

The "muniment of title" process is a relatively simple and inexpensive way to transfer estate assets when there's a will. It's essentially a probate shortcut. (Tex. Estates Code Ann. § 257.001.) It can be used when:

• there is a valid will
• there are no unpaid debts, except those secured by real estate, and
• Medicaid has no claim against the estate for recovery of benefits received by the deceased person.

To get the process started, someone files the will, and a request to probate the will as a muniment of title, with the probate court. If the court decides there's no need for probate administration, it admits the will into probate as a muniment, or evidence, of title to the estate assets. Essentially, the will serves as the document that transfers the assets to the persons or entities named in the will to inherit them.

The court doesn't appoint an executor or administrator. The person who requested probate as a muniment of title, however, is required to file an affidavit (sworn statement) with the court within six months, stating that the terms of the will have been carried out (or, if some terms haven't been carried out, which ones).

Small Estate Affidavits

In certain circumstances, people who inherit property don't have to open a probate court proceeding or use a muniment of title. If there is no will and the total value of the probate estate is $75,000 or less (excluding certain types of property), then the people who inherit the property can prepare a simple affidavit (sworn statement) to collect the property. (Tex. Estates Code Ann. § 205.001).

Small Estate Procedures

Texas executors can use a simplified small estate process if the value of the property doesn't exceed what's needed to pay the family allowance (an amount paid to a surviving spouse, minor children, and "adult incapacitated" children) and certain creditors. (Tex. Estates Code Ann. § 354.001.) The executor presents an accounting showing where the estate money went, and the court approves it and closes the estate.

Similarly, if, after expenses of the funeral and last illness have been paid, the remaining assets don't exceed the amount of the family allowance, the court can issue an order of no administration. In that case, the court assigns the estate assets to the surviving spouse and/or minor children. (Tex. Estates Code Ann. § 451.003.)

Learn more about Texas probate shortcuts.

For more information on navigating the probate process and settling a loved one's estate, see The Executor's Guide by Mary Randolph (Nolo).

Texas Probate Law and Process

A formal probate process in Texas usually requires taking steps such as these:

1. File an application to admit the will and begin the probate process, along with a copy of the will
2. Petition the court for "letters" or letters testamentary, which show your authority to act as the executor or personal representative
3. Give notice to beneficiaries named in the will, as well as any creditors, and
4. Collect the assets of the estate, and pay off any debts.
5. Distribute the remaining assets.

A typical timeline for a probate proceeding in Texas, from filing the application to distributing the assets, is about nine to 12 months. However, exactly how long probate takes will depend on many factors, such as the complexity of the estate and whether family conflict exists.

Given that there are multiple variables affecting the division of assets when the decedent has died without a will, it is highly recommended that you speak to an attorney experienced in the matters of probate before proceeding.

When someone dies without leaving a will, the court can conduct a formal Determination of Heirship, after an application has been filed by a qualified person. During this process, the court will make a formal declaration as to the identity of the decedent’s heirs at a hearing, and based on evidence presented by the applicant and the report of the Attorney Ad Litem. Pursuant to that declaration of the heirs, the attorney enters an order determining who the decedent’s heirs are and their respective shares of the decedent’s estate. Then, the decedent’s property can be divided and distributed among the heirs.

An Affidavit of Heirship is generally used when someone died without a will, without any outstanding debts at the time of death, and left only real estate in the State of Texas. Instead of going through the probate process to have title to the property transferred to the decedent’s heirs, the heirs can, instead, file the Affidavit of Heirship in the deed records of the county in which any piece of real estate owned by the decedent lies. According to the provisions of the Estates Code, the affidavit must be signed and sworn to by two disinterested witnesses, i.e. two people who knew the Decedent and his family history but do not stand to gain anything financially from the estate, and preferably not related by blood or marriage to the decedent.

Once the affidavit has been signed and recorded in the deed records of the county, it has the effect of linking the chain of title in the decedent’s real estate to their heirs. At that point, most title companies and real estate companies will allow the heirs to sell the property. A form for the affidavit can be found in Section 203.002 of the Texas Estates Code.

A power of attorney document is valid only during the principal’s lifetime, not after death. This means that if you’ve been an agent for a loved one, you’re unable to help handle estate affairs after your loved one dies without additional authority. After your loved one dies, the executor of the estate will step up and take charge of financial decisions and other estate affairs.

In Texas, when a person dies and leaves a will, that will must be submitted to the court. However, all wills do not have to be probated. For a will to be admitted to probate, the court must determine a necessity for administration. Only estates with no contests, no real property, no debt, and no accounts without satisfactory beneficiary designations can really avoid probate. All others require the probate court to direct the proper distribution of the decedent’s (the person who died) assets, although there are several procedural options within the probate umbrella. If the decedent did not name a personal representative to oversee the probate process, then the probate court will appoint one. The probate process transfers ownership from the decedent to the named beneficiary or distributee in the will.

Overview of Probate

There are several steps to the probate process:

• Submission of will. The personal representative must submit the will to the probate court that has jurisdiction over the location where the decedent resided.
• Preparation of inventory. Within 90 days of the date the will is submitted to the probate court, the personal representative must prepare an inventory of all the assets owned by the decedent with an accurate description of the asset and its current value.
• Notice to creditors. The personal representative sends written notes to secured creditors of the estate informing them of the death of the owner. The representative must also publish notice of the death in a newspaper approved by the probate court with the purpose of informing all creditors of the death. This gives creditors an opportunity to present their claims to the probate court.
• Payment of debts. Before assets can be distributed, all debts must be paid.
• Recognizing priority claims. There are some beneficiaries, like spouses, who the law may require to be paid first to be sure they get all assets to which they are legally entitled.
• Distribution of assets. After all creditors and priority claims are paid, the executor then distributes the assets according to the terms of the will.

Assets That Pass to Beneficiaries Without Going Through Probate

There are methods of how a person can have assets distributed at their death other than living a will. Some of those methods include:

• Establishing a living trust;
• Making accounts payable on death to a designated beneficiary;
• Owning property as community property with the right of survivorship; joint tenancy with the right of survivorship, or tenancy by the entirety;
• Life insurance proceeds with living beneficiaries;
• Survivor’s benefits from annuities;
• Retirement accounts that name a beneficiary.

Attorney Aubry Dameron at Springer & Lyle can answer your questions regarding wills, estate planning, and probate. She will review the detailed circumstances unique to you and guide you to deciding what specific estate planning documents will best meet your needs. Contact her at 940-387-0404 to schedule a consultation appointment.