The Texas Probate Process: An Entry-Level Guide to Understanding How Probate Works in Texas

DISCLAIMER: This article is for informational purposes only and does not constitute legal advice. Always consult a qualified attorney in Texas for personalized probate guidance.

When a loved one passes away, one of the most important legal responsibilities that may fall to family members or estate administrators is the process of probating a will. In Texas, this process ensures that the deceased’s final wishes are honored, debts are settled, and assets are distributed to the rightful beneficiaries. While the process can seem complex, understanding the key steps can make it more manageable. 

This guide provides an entry-level overview of how probate, especially independent administration, one of the most common methods of probating a will, works in Texas.

What Is Probate?

Probate is the legal process of validating a deceased person’s will and overseeing the administration of their estate. In Texas, the probate court (usually located in the county where the deceased resided) has jurisdiction over estate matters. The goal is to ensure that the deceased's assets are distributed according to their will, and that all creditors and taxes are addressed. You MUST have an attorney represent the estate in probate proceedings. Non-attorneys cannot represent estates in probate proceedings in Texas.

Step 1: Confirm That the Deceased Had a Will

Before beginning probate, confirm that the deceased left a valid will. This document is typically found in a safe place such as a safe deposit box, home safe, or with an attorney. If no will exists, the estate will be distributed according to Texas intestate succession laws under the Texas Estates Code, Chapters 201-205 (which determine who inherits based on family relationships).

Step 2: File an Application to Probate Will and for Issuance of Letters Testamentary

To begin the process, someone (usually the executor named in the will) must file an Application to Probate the Will with the county probate court in the county where the deceased lived at the time of death.

Who Can File?

·      The executor named in the will (if they are willing and able to serve);

·      An administrator designated as authorized under Texas Estates Code Section 254.006;

·      An independent administrator designated by all of the distributees of the decedent under Texas Estates Code Section 401.002; and

·      An interested person, which can include heirs, spouses, creditors, or anyone with a claim against the estate.

Required Documents to File:

·      The original will.

·      Death certificate (certified copy).

·      Application to Probate Will and Issue Letters Testamentary

·      Proof of Death and Other Facts

·      Oath of Proposed Executor

·      Proposed Order Approving the Executor and Accepting the Application

Step 3: Publish Citation to all Interested Parties

The County Clerk where the Application is filed will post notice that an Application for the Estate of the deceased individual has been filed. Additionally, all interested parties will be served citations that the application has been filed in that county. A Hearing on the Application can not be held until the notice and citation have been fully performed.

The notice alerts creditors and interested parties that probate has begun.

Step 4: Attend the Court Hearing

After the petition is filed, the court schedules a hearing. Depending on the county, this hearing can be scheduled within a few weeks or sometimes longer. The executor (or administrator) must appear in court to:

·      Confirm the validity of the will.

·      Provide proof of the deceased’s death.

·      Identify the heirs and beneficiaries.

·      Accept the role of executor.

At the Hearing:

·      The court will determine if the will is valid.

·      The executor must be sworn in.

·      The court issues a Letters Testamentary (a legal document authorizing the executor to act on behalf of the estate).

Step 5: Notices to Creditors and Beneficiaries

Within 30 days of the issuance of letters testamentary, notice must be published in a newspaper of general circulation in the county where letters were issued, as required in Texas Estates Code Section 308.051. This notice serves as a public notice to present all claims against the estate to the executor.

Failure to publish the notice may allow creditors to make claims even after the deadline.

Within 60 days after the will has been admitted to probate, the executor must provide notice to all beneficiaries named in the will, or any related trusts under Texas Estates Code Section 308.002.

Step 6: Inventory and Appraise Assets

The executor must inventory all estate assets, including:

·      Real estate (deeds).

·      Bank accounts.

·      Investments.

·      Vehicles.

·      Personal property.

·      Business interests.

This inventory must be filed with court before the 91st day after the executor was successfully appointed to manage the estate under Texas Estates Code Section 309.051.

Step 7: Pay Debts

The executor must:

·      Pay all valid debts and claims from estate assets.

Step 8: Distribute Remaining Assets

Once all debts are paid, the executor distributes the remaining assets to the beneficiaries as specified in the will.

Example: If the will leaves a specific home to a daughter, the executor must transfer the deed to her name.

Step 9: Close the Estate

After all distributions are complete, the executor files a notice to close the estate. Under an independent administration, a notice of closing estate verified by an affidavit can be filed stating that:

·      all debts known to exist against the estate have been paid or have been paid to the extent permitted by the assets in the independent executor’s possession;

·      all remaining assets of the estate, if any, have been distributed; and

·      the names and addresses of the distributees to whom the property of the estate, if any, remaining on hand after payment of debts has been distributed.

Texas Estates Code Section 405.006

Once this notice has been successfully filed, the estate is closed, and the probate process is complete. However, there remains a two-year period after the appointment of an executor during which the estate can be challenged. Make sure to keep all your documentation during this period.

Important Considerations for Texas Probate

Contested Wills: If a beneficiary disputes the will, the matter goes to a formal hearing. This process is much more complicated, time-consuming, and the court is much more involved. The court will determine the validity of the will and who is entitled to inherit.

Small Estates: Texas allows for probate of an estate via a Small Estate Affidavit for estates under $75,000. However, there cannot be a valid will in place in order to go through this process, along with other requirements.

No Will? If there is no will, the estate goes through intestate succession, and assets are distributed to the heirs of the deceased according to Texas law.

Helpful Tips

·      Consult a Texas Probate Attorney: You cannot represent yourself in probate courts in Texas. An experienced attorney can prevent errors and reduce legal risk.

·      Keep Records: Maintain detailed logs of all transactions, correspondence, and court filings.

·      Notify Heirs and Beneficiaries of the Will: Inform beneficiaries early to avoid disputes.

·      Be Timely: Texas has strict deadlines for publishing notices and filing documents.

Conclusion

Probating a will in Texas involves several legal steps, but with proper planning and documentation, it can be a smooth process. Whether you're an executor or a beneficiary, understanding your responsibilities helps ensure that the deceased’s final wishes are honored with integrity and efficiency.