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As you go through the process of probating wills in Texas, there are many legal terms that might be unfamiliar or unclear to you. These include:
- Decedent: When probating a will in Texas, you will likely encounter the term “decedent” often. This is the legal term for the person who has passed away and whose estate is in the probate process.
- Will: This is the legal document in which a decedent has outlined how he or she would like assets distributed among their loved ones.
- Estate: In the State of Texas, an estate consists of all the decedent’s assets. These include, but are not limited to, cash, real estate holdings in the State of Texas (homes, land, etc.), stocks and bonds, life insurance policies, retirement accounts, vehicles, and personal belongings. These do not include items that are payable to a beneficiary unless the beneficiary is the Estate.
- Beneficiaries: These are the persons and/or charities named in a will, or determined by the court if there is no will, who will receive assets from the decedent’s estate.
- Executor/Executrix: When a person dies with a valid will in place, the document typically names a person to serve as Executor/Executrix of the Estate. The chief duties of the Executor/Executrix will be to inventory and catalog the decedent’s assets; pay debts of the estate; pay taxes of the estate; file lawsuits for claims owed to the estate, and distribute assets from the estate to the beneficiaries as named in the decedent’s Last Will and Testament.
- Administrator: When the decedent has passed away without leaving a valid will and no Executor/Executrix has been named, Texas law requires that an administrator be named to carry out the duties of an Executor above.
What Are The Different Ways To Probate A Will In Texas?
Independent Administration: This process is the usual route when a decedent had a valid will, which named an Executor for the Estate. With an Independent Administration, the Executor has more freedom to carry out his or her duties without strict oversight by a probate court. With this type of probate, another key distinction is that the Executor is not required to post a bond, or insurance policy, for the estate.
Dependent Administration: When someone has died without a will, Texas probate law typically requires that the estate fall under a stricter oversight by the court known as Dependent Administration. The administrator is required to post a surety bond, seek court approval for every step in the process of distributing an estate, as well as filing detailed reports every year with a Texas probate court regarding the estate.
Muniment of Title: Another process by which you can probate a will in Texas is the relatively inexpensive and simple process known as Muniment of Title. This process can be utilized when a valid will exists, the estate has no debts except secured real estate, and Medicaid has no claims against the estate to recover benefits the decedent may have received. With Muniment of Title, the court must determine that there’s no need for a probate administration and admit the will into probate as a muniment (or evidence) of title to the assets of the estate. No Executor is appointed, but the person who requests the Muniment of Title must file a sworn statement with the court within six months verifying that the terms of the will have been carried out.
Small Estate Affidavit: When a decedent had no will and the value of his or her estate is $50,000 or less, the beneficiaries of the estate can file a Small Estate Affidavit (sworn statement) to collect the property without going through the probate process.
Q. Which assets are handled outside of probate?
There are a number of different kinds of properties that may pass outside the provisions of your will.
The list includes life insurance, retirement plans, individual retirement accounts, and annuities. When you purchased or set up these types of assets and accounts, you were probably asked to fill out a form listing the beneficiaries who will receive payments upon your death. These investments will pass to the named beneficiaries regardless of whether you have a will. However, if you don’t have a beneficiary named, if the beneficiary named is your “estate,” or if all the beneficiaries are dead, then those investments will be paid to your estate and pass under your will.
Certain bank and brokerage accounts will also pass outside your will. For instance, payable‑on‑death accounts (sometimes called “POD” accounts) will be distributed to the named beneficiary. Additionally, accounts set up by one or more persons as joint tenants with rights of survivorship will pass to the surviving account holder or holders.
Some banks allow you to set up what they call trust accounts even though there is no written trust agreement. These types of accounts will pass to a named beneficiary without going through probate as well.
Not all joint accounts pass to the survivor. When joint accounts are set up as tenants in common, the portion of the account that was owned by the decedent passes under his or her will.
Many people have decided to create revocable or irrevocable trusts as part of their estate plan. Virtually all such trusts are designed to pass directly to persons or other trusts named in the document rather than under a last will and testament.
You may find that most of your estate consists of non‑probate property. Therefore, it is extremely important to coordinate the beneficiaries of all these properties to make certain your assets will be distributed as you want when you pass away.
Q. Must a will be probated if the estate is less than $1,500,000? Are insurance proceeds included in that total?
There is no requirement that you probate a will no matter how much the estate is worth. Wills need to be probated only if property is not transferred by some other means.
Most relatively simple estates (cash, publicly traded securities, small amounts of other easily valued assets, and no special deductions or elections, or jointly held property) do not require the filing of an estate tax return. A filing is required for estates with combined gross assets and prior taxable gifts exceeding $1,500,000 in 2004 – 2005; $2,000,000 in 2006 – 2008; $3,500,000 for decedents dying in 2009; and $5,000,000 or more for decedent’s dying in 2010 and 2011 (note: there are special rules for decedents dying in 2010); $5,120,000 in 2012, $5,250,000 in 2013, $5,340,000 in 2014, $5,430,000 in 2015, $5,450,000 in 2016, $5,490,000 in 2017, $11,180,000 in 2018, $11,400,000 in 2019, and $11,580,000 in 2020. Source: IRS.GOV
The probate process is primarily a method of changing the title from the deceased to the person or persons who inherit the property. Some assets require probate, such as real estate and bank accounts held only in the name of the deceased, while others do not, such as life insurance policies or retirement plans payable directly to named beneficiaries.
Q. I'm named as the executrix of my father's will. What do I do when he dies?
There are some steps you must take and other steps you may need to take. Exactly what you must do depends on the types of assets your father owns and the size of his estate.
Find the Will. Locating an original will can sometimes be difficult. Many people keep their wills in a safe deposit box, while others keep them at home or someplace else. It may be a good idea to talk to your father and find out where he is kept. If it’s at the bank, be sure you’re authorized to enter the box, otherwise it may be harder to get the will out.
Hire a Lawyer. Most of the time, it’s necessary to hire a lawyer. The judges in some smaller counties allow people to represent themselves in probate matters, but you still may have trouble preparing all the necessary forms that are required. It’s safe to say, therefore, that lawyers must be hired in the vast majority of cases.
Application For Probate. The first document your lawyer will prepare is an application for probate. The original will is filed at the courthouse along with the application and a filing fee (varies by County). The application is usually several pages long, and it describes certain facts about your father, his will, and his property.
The Probate Hearing. After a ten-day mandatory waiting period, a probate hearing will be scheduled. Your lawyer will schedule this hearing for you. Under ideal circumstances, you can get your hearing two weeks after the application is filed. However, it often takes three weeks or longer to schedule a hearing because of the backlog in the courts and other scheduling conflicts.
Testimony and Order. At the hearing, your lawyer will ask you a number of routine questions. Most of the time, the judge will then sign an order admitting the will to probate. The order is a document which your lawyer will have prepared and brought to the hearing. You will also be asked to sign the written document containing your testimony.
The Oath. After the hearing, you will need to sign an oath stating that you will fulfill your duties as independent executrix of your father’s estate. The word “independent” means that you will not need to ask the court for permission to sell estate assets or to conduct any other duties as executrix.
Letters Testamentary. After your oath is filed, you will be able to order “letters testamentary” from the county clerk. The letters will authorize you to close bank accounts and collect and claim other estate assets. You can order as many letters as you think you will need, the cost is $2 per Letter in all Counties.
Within 30 days of receiving letters testamentary, you must publish a “notice to creditors” in a local newspaper of the County that you filed the probate. This notice lets creditors of your father’s estate know where they may file claims to recover money they are owed. It must be published even if your father has no creditors. Certified letters must also be sent to all of the charities named in your father’s Will. Proof that you performed these tasks must be filed with the court as well. If you hire an attorney, your attorney will prepare and send these notices on your behalf.
Notice to Beneficiaries. Within 60 days of receiving letters testamentary, you must send a notice to ALL beneficiaries listed in the Will stating that you were appointed and including a copy of the Will and Order Admitting it to Probate. These notices must be sent by certified mail and a Certificate of Compliance must be filed with the Court.
File the Inventory. Within 90 days of qualifying as executrix, you must file an Inventory with the court. The Inventory lists all the assets which pass under your father’s will. Importantly, the inventory doesn’t always list everything a person owns, since you don’t have to list assets that pass directly to named beneficiaries. For instance, life insurance, retirement plans, some joint accounts, and many other properties are designed to pass directly to a named beneficiary. After the Inventory is filed, the judge will sign an order approving the Inventory.
Tax Returns. Estates valued at over $1,000,000 must file a federal estate tax return and a Texas inheritance tax return within nine months of death. Taxes will be owed if the net estate exceeds that amount. The tax rates on assets over $1,000,000 start at 41% and go as high as 50%. You may also be required to file income tax returns for the estate. Often, the lawyer handling the estate will also prepare the estate and inheritance tax returns. However, few lawyers prepare income tax returns.
In answering your question, I have assumed your father’s will was executed, witnessed, and notarized properly, and that it contains all the right language. Not all probate proceedings are as easy as this answer indicates. For instance, you may find yourself in the middle of a will contest, or your father’s will may have been written in another state, thus complicating the probate.
One more thing: Not all wills need to be probated. You may find that everything your father owns passes directly or automatically to named beneficiaries. If the only assets left are his household goods and other personal items, there is no need to hire a lawyer and go through probate. If you are unsure if a probate is needed, it is a good idea to contact a probate attorney and have them review the Will and estate and determine if a probate is required.
Q. For years, I've heard that probating a will in Texas is simple and can be done by a lay person, but in response to a recent question on the subject, you said the first step is to hire a lawyer. To clarify, can a lay person probate a simple will in Texas without the need to hire a lawyer?
The answer to your question depends on where you live.
In densely populated counties like Harris County, the courts are extremely busy, and they have adopted policies of not allowing people to probate wills without a lawyer. But in smaller counties, the judges are perfectly willing to let people probate wills on their own.
The courts in the larger counties simply don’t have the time to explain the probate process to all the people who call asking for help. More often than not, when people try to conduct a probate proceeding without a lawyer, forms are prepared incorrectly or not at all, and the required court hearings are slowed to a crawl.
Courts justify this decision in a number of ways. Some courts say the “client” in a probate matter is the estate of the person who died and not you, the Executor. You may be allowed to represent yourself in a legal matter, but you cannot represent another party‑‑which is the estate in a probate matter‑‑unless you are a licensed attorney.
Other courts say that because many probate proceedings are not straightforward or because witnesses may need to be deposed or cross‑examined, a lawyer should be present. Judges are sometimes unwilling to let non‑lawyers handle the representation and conduct the court hearing.
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