Guide to Probate Court


Probate in Texas is the settling of the estate of a deceased individual involving such issues as validating the will, appointing an estate executor, and overseeing the distribution of the individual's assets. It can be a long, drawn out process, and the grief accompanying the individual's loss makes it more difficult, so it's best for loved ones to learn as much as possible about probate court before the procedure begins. Think of probate as a way of transferring title to assets. If there’s a house in the deceased person’s name, obviously they’re not here so they can’t sign the deed to transfer it. The executor of the will signs the deed on behalf of the deceased person. It’s like a power of attorney for a deceased person.

The first step is to file a written application to admit the Will to probate. This should be done in the probate court of the individual's residence prior to his or her death. Afterward, a ten-day notice will be posted at the courthouse informing interested parties that the Will has been filed. This also gives any interested parties time to contest the Will, if necessary. If no one comes forward, there will be a probate hearing.

The probate hearing will take place before a probate judge, who will officially recognize the individual's death. Once it has been proven that the Will is the true last Will and Testament and has been correctly executed and witnessed, the judge will declare the Will valid. When everything has been concluded and all requirements have been met, the judge will admit the will to probate and appoint an executor. The clerk will provide the executor with “Letters Testamentary,” which is the official document that authorize the executor to gather up the decedent’s assets, pay off any debts, and distribute the assets to the persons named in the will. Some courts allow all the documents to be filed with no hearing.

Within 90 days, the executor will prepare an “Inventory, Appraisement, and List of Claims.” The inventory lists any real estate located in Texas owned by the individual, as well as personal property, determining which is separate and which is community property. The executor will include descriptions of all assets and an appraisement, or reasonable valuation of those assets as of the date of the individual's death. The executor must also create a list of debts owed by the individual at the time of his or her death, such as medical bills, mortgages, credit cards, etc. and allow any creditors time to file a claim against the estate. In Texas, this can legally be done by publishing a notice in the newspaper. The executor is also responsible for filing the individual's final federal tax return and for selling any estate assets.

However, the Will can't be finalized until every dispute is settled. If a beneficiary has an issue with the Will, that person has two years to file to contest the Will. He or she must provide proof that the Will is invalid based on at least one of the following:

  • The Will is a forgery;
  • The individual was forced to sign the document under undue influence;
  • The Will was improperly executed; and/or
  • The individual was not in his or her right mind when the Will was signed.

In the long run, most of these disputes are handled through mediation or by making compromises within the family and signing a written Family Settlement Agreement.

After all of these issues have been dealt with, the remaining assets are distributed among the beneficiaries. Some assets will not go through the probate process because they are non-probate assets such as:

  • Joint accounts with rights of survivorship;
  • Assets with designated beneficiaries, such as retirement accounts, IRAs, and life insurance policies;
  • Properties held in trust; and
  • Real estate with a transfer-upon-death deed.

Once all assets have been distributed, probate has been completed. In Texas, the probate case is not closed out with the court. It will sit there until the end of time. That way, if an asset is discovered years later, the Letters Testamentary can be re-issued and the asset transferred by the executor or a subsequent executor.

Dying without a will is known as dying intestate. When this happens, Texas follows specific intestacy laws. In other words, when you die without a Will, the State of Texas dictates where your assets go. These laws divide the individual's property based on a decreasing level of connection to that individual. This will include natural relationships and marital relationships. For example, the individual could have been survived by a spouse, or a spouse and biological children, or a spouse and non-biological children, down through parents, grandparents, etc. Intestacy laws are extremely complicated and taking time to create a will is worth it to keep your family from going through this difficult process.

Probating a Will in Texas is very quick and easy and typically takes 2-3 months to finish for a simple estate. Probating and estate without a Will easily takes a year or more. Probate is an emotional time, but by becoming familiar with the process, you can hopefully get through it with as little difficulty as possible and your probate attorney will be there to guide you through the process.