Nov
24
2025
What Happens If You Don’t Probate A Will In Texas?
Probate can be costly and complicated. When a loved one passes away and leaves a Will behind, emotions are already high, and there may be unexpected costs while dealing with the funeral. As a result, it's no surprise that many people put off the process until it's too late.
There are some situations in which probate is not necessary. That said, if it is necessary, failure to probate the Will may often leave you in a worse situation down the line. It is always better to assume probate will be required than to assume it will not be.
Here are the most common situations that lead to a Will not being probated, why you should probate a Will in the state of Texas, and what your next steps should be.
Why Do You Need To Probate A Will?
Probate is the legal procedure through which the estate of a deceased individual is managed and distributed according to their wishes, as outlined in their Will (or according to Texas State Law if no Will exists). There are several types of probate, from the simple process of probate as a muniment of title to the more complicated process of independent administration of the estate.
Each type has its own specific requirements and timelines, impacting how long the entire process will take. However, in general, probating a Will in Texas typically:
- Lets the court validate the authenticity of the Will
- Appoints someone (an executor of the estate) with legal authority to act on behalf of the estate
- Allows for payment of the decedent’s debts and taxes, then distribution of the remaining assets to beneficiaries in accordance with the Will
- Transfers legal title to assets (such as real estate, bank accounts, vehicles) from the decedent to the heirs/beneficiaries
More often than not, probate is fairly straightforward and not as scary as people may expect. But each case can be different. An experienced probate attorney can help guide you through the steps and make the process as stress-free as possible.
What Happens If You Don't Probate A Will In Texas?
If you forget or choose not to probate a Will, and it is required to distribute the deceased's estate, some of the following may happen:
- Title & Asset Transfer Problems May Occur
Real estate, vehicles, and bank or investment accounts held solely in the decedent’s name may remain in legal limbo. For example, the title may stay in the decedent’s name, which may prevent sale, refinancing, or transfer.
Beneficiaries will likely have difficulty accessing or using assets until the legal ownership is properly sorted. - The Deceased's Wishes May Not Be Honored
A Will that is never admitted to probate may not have legal effect for purposes of distributing assets. The estate will then be treated similarly as a death without a Will (“intestate”), in which case distribution follows statutory rules rather than the deceased's wishes. Read my blog here to see what might happen to property in this situation. - There May Be Debts, Taxes, & Liability Issues
Without probate, there may not be someone legally appointed to handle creditor claims. Banks, mortgage companies, credit card issuers, and medical providers will not deal with heirs. They need an executor or administrator appointed by the court. Without probate, bills remain unpaid, interest and penalties continue to accrue, and some creditors may eventually sue the “estate.”
If heirs take ownership of the estate without probate authority, Texas law allows creditors to seize the assets and potentially sue the heirs personally for unpaid debts. Secured creditors can also foreclose or repossess assets if the deceased had a mortgage, car loan, HELOC, or another secured loan. Tax filings (e.g., a final income tax return or estate tax/estate income issues) may also be overlooked. - Heirs Put Themselves At Risk For More Disputes
When nothing has been filed or formalized, it becomes easier for disagreements among heirs to arise about who is entitled to what. Ideally, all heirs would honor their deceased loved one's wishes. Unfortunately, this does not always happen, and without proper probate, beneficiaries could fight for more than they would have initially received.
If assets remain titled in the decedent’s name, there may also be lawsuits, partition actions, or claims against the estate. - Heirs Lose The Opportunity To Take Advantage Of Simpler, Cheaper Options
Texas law provides some streamlined processes (for example, probate as a “muniment of title”), but they often require that probate or some court filing be done within certain conditions and deadlines. Failing to act in a timely manner may forfeit those simpler avenues.
Situations That Can Unintentionally Or Intentionally Result In A Will Not Being Probated
In the state of Texas, there are several situations you may find yourself in where a deceased loved one's Will may not be probated. In some of these situations, skipping probate is for the best. In others, however, you may experience emotional and financial hardships because the probate process didn't occur. These are the most common situations in which probate may not occur.1. Heirs Do Not Realize They Need To Probate The Will
It is a fairly common situation where a surviving spouse believes he or she automatically inherits all of the deceased spouse’s property upon his or her death. This is not true. Many times, the family finds this out only after the surviving spouse passes. At that point, a probate action or preparation of an Affidavit and Family Settlement Agreement ("Affidavit") has to be pursued on behalf of both spouses in order to pass title to the next generation of beneficiaries.
This can pose a special problem because Texas law generally requires a Will to be probated within 4 years of the date of the decedent’s death. If more than 4 years have passed, the applicant for probate must convince the court he or she had good cause for not presenting the Will within that time. Fortunately, most of the time, the courts are fairly liberal in accepting the excuse that the surviving spouse was misinformed about the need to probate. The mere belief that a spouse did not need to probate a Will may or may not be a sufficient excuse, depending on the court.
There is a danger of waiting too long: I had one case in which family members had repeatedly urged the surviving spouse to probate the Will, which left everything to her, but she refused, saying it was too expensive. So, a surviving child of a prior marriage of the earlier deceased spouse waited until the 4 years from the parent’s death had passed and requested an administration of the estate.
Texas law provides that, when this happens, the Will is treated as if it did not exist, and the estate passes by intestate (without a Will) succession. This means that children from a prior marriage take the deceased spouse’s one-half of any community property. As a result, the surviving spouse lost the deceased spouse’s one-half interest in property that she would have received had she probated the Will. Her Will could dispose of only her one-half interest to her intended beneficiaries. Stubbornness was counterproductive in this instance.
2. A Family Agrees On The Disposition Of Assets
In some instances, it may not be necessary to have a formal probate of a deceased loved one's Will if all of the heirs agree to the distribution of the estate, there are no creditors demanding payment from the estate, and the estate's value is not very high.
If this is the case, the heirs may have an Affidavit of Heirship and Family Settlement Agreement (“Affidavit”) drawn up, and attach a copy of the Will. This document should be filed in the official public records of any county where the deceased owned real property. Many times, third parties will honor the Affidavit. If a third party refuses to honor the Affidavit, however, a probate may then be necessary to transfer the assets.
3. The Person Holding The Will Refuses To Produce The Will Or Take Any Action To Settle The Estate
I have occasionally seen the situation where a surviving spouse or another family member who has custody of the deceased’s Will refuses to produce it, to enter into an Affidavit of Heirship and Family Settlement Agreement, or to take any action to settle the estate.
In that instance, other interested parties, including beneficiaries under the Will and creditors of the estate, can file a motion with the probate court where the deceased lived to force production of the Will. Then, that interested party or any other interested party can proceed to have the Will probated.
4. All Assets Are Distributable By Payable-On-Death Or Other Beneficiary Designations
Many assets, such as bank accounts, investment accounts, retirement accounts, and life insurance, can be set up to pass outside of probate by payable-on-death ("POD") or beneficiary designations.
Also, under the law of Texas and a number of other states, even real estate and mineral interests can be passed outside of probate to designated beneficiaries under a Transfer on Death or "Lady Bird" Deed.
When Is Probate Of A Will Typically Required?
Sometimes, an heir will not agree to sign an Affidavit, or the estate is not appropriate to use the Affidavit. Also, if the estate has a significant value, third parties may be unwilling to risk relying on an Affidavit to transfer assets. A form of probate will be necessary then.
Most title companies and other third parties holding assets of a deceased person will require all potential heirs to join in the Affidavit to honor it. Or, if there are real estate or mineral interests, on which a Transfer on Death or "Lady Bird" Deed has not been done, a probate action probably will be required in these instances.
If a probate action of some sort is the only alternative, it is possible that a less expensive Probate as a Muniment of Title can be used. There must be no outstanding debts of the estate other than liens on real property to use this simpler probate procedure.
Do Not Delay Moving Forward To Determine If Probate Of A Will Is Required
Generally, it is not necessary to probate a Will immediately after a loved one’s death. The best time to determine whether probate is necessary is after the family has had time to process the loss of the loved one and is in a good frame of mind to proceed with settling the estate. This may be a couple of days or months.
Some situations will require probate more quickly than others. It depends on the assets involved and the needs of the beneficiaries. Remember, the outside limit, unless you have a really good excuse, is 4 years following the decedent’s death.
If your loved one passed away in Texas and you need help determining whether probate is required for a loved one's Will, contact Adair M. Buckner for a free initial consultation*.
*(The free consultation does not cover actual review of documents or giving legal advice on a specific situation.)
** This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, specific tax, legal, or accounting advice. We can only give specific advice upon consulting directly with you and reviewing your exact situation.
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