Texas Probate: Your Complete Guide | evident

Probate is the legal process that determines how someone’s estate is distributed after they pass away. The probate process can unfold either with or without a will, but the process is generally much smoother when there is a will in place.  

When there is a will, the process is all about making sure the terms of the will are carried out and that assets are distributed to the intended beneficiaries. When there is not a will, the deceased’s property will be distributed according to probate laws in Texas.  

Proper estate planning should always consider probate issues that may arise when administering your estate.

As mentioned, probate unfolds a little differently depending on whether there is a will. Most wills declare an executor, which is the person who acts as a personal representative for the estate. If there is no will, then the probate court will need to appoint an administrator to oversee the proceedings. 

The Texas probate process begins when the executor (or administrator) files a probate petition in probate court. In Texas, paperwork required for this filing generally needs to include the following: 

• Decedent’s date of birth
• Decedent’s date of death (A copy of the death certificate may be necessary)
• Decedent’s residential address 
• Names and addresses of the beneficiaries 

Next, the Texas probate judge verifies the will (if there is one) in court so that the terms of the will can be executed. Then, outstanding debts, taxes, and other costs are paid out of the decedent’s estate. 

Once these steps are complete, the estate is then distributed to the beneficiaries as determined by the terms of the will (or by state law if there is no will). 

Note that Texas requires executors to file for probate within four years of the decedent’s death. If the executor fails to do so, the estate’s assets will be distributed according to the laws of intestacy. (State laws of intestacy are the laws that govern the distribution of estates when there is no valid will in place).

And note that Texas is a community property state, which may also be relevant for the transfer of property if the deceased person has a surviving spouse.

There are two main types of probate administration in Texas: independent and dependent administration. The main difference between the two is the level of court supervision required over the process. 

Independent administration has less court supervision and is therefore generally more efficient. Dependent administration, on the other hand, involves greater court supervision. 

Independent Administration in Texas

Under independent administration, the court appoints an administrator who submits an inventory list of the estate’s assets as well as a list of people who owe money to the estate. Once this inventory list is filed, the administration of the estate is allowed to continue without any other judicial approval. 

Because there is less court oversight, independent administration is significantly cheaper than dependent administration – and therefore more popular. More than 80% of probated estates are administered independently in Texas. 

Dependent Administration in Texas

Alternatively, probated estates in Texas can be dependently administered. Under this type of administration, the court appoints an administrator who seeks the judge’s approval at every step of the probate process.

The purpose of dependent administration is to protect beneficiaries’ rights, and as such, it’s usually used when the beneficiaries dispute the will or the estate’s assets. 

The need for constant judicial approval is what makes this estate administration process significantly more expensive than independent administration. Dependent administration can cost thousands of dollars more, depending on the estate size. 

Texas law allows individuals to include a provision in their will requesting independent estate administration. The Texas Estates Code has more information on how independent administration can be requested in various circumstances. 

However, even if the will doesn’t request it – or there is no will – the independent path can be pursued so long as all beneficiaries agree.

There are two main ways to avoid probate in Texas: to take estate planning steps to avoid probate; or to qualify for a simplified process based on the size of the deceased's estate.

Estate planning steps to avoid probate

It often makes sense to take estate planning steps to avoid probate due to the costs and hassle involved in the Texas probate process.

Some of the main ways people seek to avoid probate are by:

• Creating trusts (which can be either revocable or irrevocable)
• Naming beneficiaries on financial accounts
• Jointly owning property
• Giving gifts

These steps can help remove certain assets from your probate estate, instead allowing them to transfer directly to the intended beneficiaries (similar to retirement accounts or life insurance policies).

Thresholds for avoiding probate in Texas

Texas probate law allows for simplified probate procedures for small estates, meaning the normal probate process can be skipped altogether if the deceased person's estate meets the following requirements: 

1. There is no will. 
2. The entire estate’s value (not including exempt property and homestead) is valued at $75,000 or less. 

In order to qualify for this small estate process, an inheritor must prepare a small estate affidavit stating which assets they’re entitled to. This document is signed under oath, and once a probate court judge approves the affidavit, the institutions in possession of the decedent’s assets will release them. 

The small estate affidavit must include the following information: 

• A statement that all conditions (described above) have been met 
• List of all known estate debts and assets 
• List of exempt assets as described by the inheritor
• Names and addresses of each inheritor as well as the relationship between all parties in order to establish the legal right to inherit property from the deceased

This process involves a 30-day waiting period. Additionally, each inheritor – as well as two witnesses with no inheritance rights – must sign the affidavit. 

For other estates where the value of the property does not exceed the homestead, exempt property, and what’s owed to creditors, an executor can request simplified probate procedures by filing a written request with the local Texas probate court. If approved, the court will authorize the executor to distribute the assets under simplified procedures. However, the executor will still have to file an inventory, a list of creditor claims against the estate, and the property’s appraised value.

Several factors determine how long the probate process in Texas will take, but the size of the estate usually plays a big role. 

In general, small estates can usually be resolved in a matter of weeks or months. 

On the other hand, larger estates can take years – particularly if there are substantial assets to distribute and many terms to satisfy. Claims and contests filed in probate court also tend to extend the length of the probate process. 

Other factors that determine how long your probate case will take in Texas include the amount of debt or taxes that need to be paid, as well as the kinds of assets involved in the estate. For example, a probate case that requires ownership of a commercial real estate property to be transferred will take significantly longer than one without any real estate.

The role of an executor is generally similar regardless of where a probate case unfolds. Here’s an overview of an executor’s responsibilities:

Identifying assets

The executor must identify all of the deceased’s assets to be included in the estate. This also may involve appraising the assets. The value of the estate will be critical when dispersing the shares of the estate.

Paying the estate’s debts and taxes

Any remaining debts or taxes left by the deceased must be paid out of the estate.

Notifying beneficiaries

The executor must notify all beneficiaries named in the will. If you are the executor of an estate in Texas, be aware that failing to notify beneficiaries may create grounds for a lawsuit.

Probate courts are specialized courts that handle legal proceedings involving wills and the distribution of estates. These courts are sometimes referred to as Surrogate’s Courts, Orphan’s Courts, or Chancery Courts. 

In Texas, the Texas Legislature created statutory probate courts. There are 18 of these specialized Texas probate courts throughout Texas’ ten most populous counties, and they are specifically tasked with handling probate matters (as well as some other types of cases like guardianship) for their counties.

In Texas counties where there is not a statutory probate court, the general county court has jurisdiction over probate matters.

It is crucial to make sure you are operating in the proper Texas probate court when you first file the relevant paperwork.

There are several kinds of fees involved in probate, which means the cost of probate in Texas will vary on a case-by-case basis. In Texas, you can expect to pay the following probate fees:

• Attorney fees:  These fees will vary across probate attorneys based on factors like experience, location, and the extent of representation necessary for your case. Some probate attorneys offer flat fee agreements, whereas others will charge an hourly rate.
• Executor fees:  Texas executors are entitled to 5% of an estate’s total financial transactions (i.e. all money the estate receives and pays out), per the state’s Estates Code. This does not include 5% of certain estate assets, like cash held by the deceased at their time of death, assets with named beneficiaries, and life insurance proceeds. Executors can petition the court for a higher compensation if they believe 5% is too low for the amount of work they completed. Additionally, Texas courts will uphold a different compensation percentage if one is outlined in the deceased’s will – 5% is just the default level of executor fees in Texas if the will doesn’t specify otherwise.
• Probate bonds (Executor or administrator):  Texas county courts require executors and administrators to obtain probate bonds to ensure estate debts and assets are properly handled. Beneficiaries can make a claim against the executor bond if the executor of the estate engages in potential fraud, errors, negligence, theft, or misrepresentation. The bond amount is usually based on the approximate size of the estate. In independent administration, executors are not required to obtain a bond or insurance policy for the estate.‍
• Federal estate tax:  Texas does not have a state estate tax. However, federal estate tax returns must be filed for combined gross assets and prior taxable gifts exceeding $12,920,000 for 2023.‍
• Court fees:  Court filing fees range by county in Texas, but the fee to begin the probate process is usually less than $300. The probate court will charge for filing documents, filing certain applications, and issuing additional copies of documents. ‍
• Certificate fees:  Common certificates you’ll need – such as the Letters of Administration, which grant someone the official authority to access and manage a decedent’s estate – may require a fee. These certificates can cost anywhere from $2 to $20 per copy. ‍
• Appraisal fees:  If assets (such as antiques) have an unknown value and must be appraised, an appraisal fee will likely have to be paid out of the estate. 

Here are a few of the factors to keep in mind when considering whether you need to hire a Texas probate attorney:

• Larger estates: Larger estates are usually more complex and can lead to a more complicated probate process as a result. Working with an experienced probate lawyer can lower the time and cost of settling the estate. 
• Complicated assets: Some assets make for a straightforward probate process, while others (like intellectual property or commercial businesses) can require more time and attention. A Texas probate attorney can help manage, appraise, and sell these assets more efficiently. 
• Disputes: Wills can be contested, which significantly extends the length of the probate process. If this happens, a probate lawyer can help settle the dispute or, if necessary, prepare a legal defense to protect the original terms of the will. 

Most Texas courts require executors and administrators to be represented by an attorney during the probate process. This is because executors and administrators are not just representing their own interests – they’re representing the interests of third parties like beneficiaries and creditors. 

Submitting a probate application in Texas without a probate attorney can thus be considered the unauthorized practice of law.

And here are key questions to ask a probate attorney if you do meet with probate lawyers.

Is probate required in Texas if there is a will?

Yes, probate is still required in Texas even if there is a will. Estates typically go through probate in Texas whether or not there is a will. 

Probate in Texas without a will is slightly more complicated, and the distribution of assets will follow intestacy laws as opposed to the decedent’s wishes. It is therefore advisable to draft a will if you care about how your assets are distributed. 

But does a will have to be probated in Texas? The answer is yes, probate is still required even when there is a will. 

Do all estates have to go through probate in Texas?

No, not all states have to go through probate in Texas. If there is no will and the estate’s value (not including exempt property and homestead) is valued at $75,000 or less, then the estate may qualify for a simpler process under Texas probate law. 

Note that this small estate process cannot begin until 30 days after the decedent’s passing and “no petition for the appointment of a personal representative is pending or has been granted.”

How much does an estate have to be worth to go through probate in Texas?

Estates worth $75,000 or more typically always have to go through the probate process in Texas. But, as just discussed, if an estate is worth $75,000 or less and there is no will, the estate may qualify for a different process and essentially bypass probate.