Texas Probate Guide

Probate is the legal process of administering a deceased person’s estate—including implementing their Will (if one exists) or filing for administration of the estate if there was no Will, paying debts and taxes, and distributing assets to beneficiaries.

If a person dies intestate (without a valid Will), their estate is distributed according to state intestacy laws, which typically prioritize spouses, children, and other close relatives. However, children from a prior marriage take a community one-half of their deceased parent, which can create many problems for the surviving current spouse.

You can read this blog to learn more about what intestate succession looks like.

The probate process typically takes 3 to 6 months in a simple estate, but complex estates can take longer—especially if there are disputes, many properties, disputed debts, or tax complications.

No. Probate may not be required if:

• There is no Will, and the estate is small (below your state’s probate threshold). Texas has small estate affidavit procedures, which avoid the need for a full probate.
• Assets are held jointly
• Assets have named beneficiaries (like life insurance or retirement accounts)
• The estate was placed in a living trust.

The executor (named in the Will) or a personal representative/administrator (appointed by the court if there is no Will) manages the estate through probate.

Texas provides two different types of probate when there is a Will: a full probate, known as "formal probate", and a simplified probate, known as a muniment of title. The main distinctions between these forms of probate are the steps required, the time the process will take, the probate requirements, and the cost of the proceeding.

If a deceased person dies without a Will and owned real estate or other assets of significant value that have not been transferred by beneficiary designations, administration of the estate or a similar procedure will be required at some point to transfer those assets. An administration of an estate is a much more complicated and costly procedure than probate of a Will.

A Determination of Heirship proceeding coupled with an application for either dependent or independent administration of the estate may be required. If strict statutory conditions are met, a Small Estate Affidavit procedure might be used instead.

Each type of probate or probate alternative has different requirements and costs.

A Will must be probated within 4 years after the individual’s date of death, subject to some exceptions. If that is not done, the Will could be ignored, and the deceased person’s assets would pass according to the laws of intestate inheritance in Texas.

If you can prove that the applicant for probate was “not in default” in failing to present the Will for probate on or before the 4-year deadline, the court may allow an extension on this deadline. A person is considered "not in default" when they have a valid reason why they didn't submit the Will to probate.

There are very specific situations in which you can get past the 4-year deadline for presenting the Will. These are laid out in my blog HERE.

Advance planning with probate-alternative documents can avoid the need for probate in many cases. Even if the deceased person had a Will, probate may not be necessary if these steps are taken prior to death, when there are no other assets that have not been disposed of by such advance planning.

These are key advance planning steps:

• A Transfer on Death Deed or "Lady Bird Deed" for any real estate or mineral interests owned (at least for Texas property)
• Beneficiary designations or payable-on-death instructions on retirement accounts, bank accounts, life insurance, brokerage accounts, and the like
• A Trust arrangement

You can also avoid probate by holding property as joint tenants with rights of survivorship or by making gifts of assets before your death.

If someone contests a Will, the court must resolve the challenge, often leading to delays and additional costs. Common reasons for disputes include claims of undue influence, lack of capacity, or improper execution.

While Adair Buckner does not provide contested Will services, there are many great attorneys in the Amarillo area who can help with this issue.

Non-probate assets pass directly to pre-designated beneficiaries, bypassing probate. Examples include:

• Real estate transferred by a Transfer on Death Deed or Lady Bird Deed
• Life insurance proceeds
• Retirement accounts (IRA, 401(k))
• Property owned as joint tenants with rights of survivorship
• Payable-on-death bank accounts

All valid debts of the deceased (such as medical bills, credit card balances, mortgages, and taxes) must be paid, to the extent assets which are not exempt are available, before assets are distributed to beneficiaries.

Texas law provides significant exemptions for surviving spouses or minor children, which allows them to avoid being required to pay estate debts. Examples are a homestead to live in and significant amounts of personal property set out in the Texas Estate Code. There are other statutory exemptions as well.

If the estate does not have enough non-exempt assets to satisfy all debts, debts are paid in order of legal priority set out in the Texas Estates Code (e.g., funeral expenses, expenses of the administration of estate, taxes, secured debts). Lower-priority creditors may not be paid in full or at all.

Normally, the executor is not liable for any debts of the estate or other claims relating to the administration of the estate. If the executor grossly mismanages assets, fails to pay taxes, or distributes assets improperly, however, they can be held personally liable.

The cost of probate will vary depending on the type of probate required and the complexity of the estate.

Costs vary but often include:

• Court filing fees and other fees incurred in the court proceeding
• Attorney and executor fees
• Appraisal and accounting costs

If there were a simple mom-and-pop Will where spouses leave everything to each other, if surviving, or on the death of the survivor, to their adult children, the cost is not likely to be more than $1,500.

If there weren’t a Will, the total cost may be around $2,500 or more for a simple estate or $3,500 or much more for a more complicated estate. If there are many heirs under Texas intestate law, this increases the cost even more.

READ: How Much Probate Costs With & Without A Will

** Please remember that the cost estimates given are only general, ballpark numbers for the Amarillo, Texas area. The costs can vary widely depending on many variables in your individual situation and are constantly changing.

“Probate” refers specifically to the process of proving and administering the Will, while “estate administration” generally refers to the situation where there is no Will.

No. Assets held as joint tenants with rights of survivorship with another, or for which a beneficiary or payable on death designation has been made, do not have to go through probate.

The executor must file the deceased’s final income tax return and estate tax returns, if required. They must then pay any taxes owed out of the estate, if funds are available, before distributing assets.

Federal and estate inheritance or estate taxes now have such a high threshold before they are imposed that those taxes are rarely ever a consideration for most people.

For small or simple estates, self-representation is possible. However, there are often variables that make hiring an experienced probate attorney worth the investment.

Pro se representation is always risky because courts can become quite irritated and unfriendly if the forms and procedures are not properly followed. This can be complicated and intimidating. This is especially the case for complex estates with significant assets or disputes.

Typically:

• The original Will, if there is one
• The death certificate (sometimes, this must be filed with the court, but not always)
• Application for probate
• List of heirs and beneficiaries
• Inventory of assets and debts

You can speed up probate by:

• Using small estate affidavits (if eligible)
• Keeping organized records
• Avoiding disputes through clear advanced estate planning before death and open and honest communication after death
• Ensuring all debts and taxes are settled quickly

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