What Can I Do if a Will Is Not Probated From My Mother's Estate in Texas?

by Wayne Thomas

A will provides the drafter with the most control over the distribution of her assets at death. However, in order for the will maker's wishes to be carried out, the will must be probated within the time frame specified by Texas law. If not, estate property will pass according to a set of state rules that prioritize heirs based on their legal relationship to the deceased. While these rules are fairly rigid, heirs may still have some say in how the inheritance is distributed, provided they can all agree.

Overview of Probate

Probate is the process by which property owned by a deceased person is distributed, according to her wishes as outlined in her will or by state law if there is no will. In Texas, an heir may initiate the probate process by submitting the will to the probate court in the county where the decedent resided, along with a cover sheet, application and death certificate. This process must generally be started within four years after the date of death. If the will is not submitted within that time, property owned by the decedent will be distributed according to the Texas laws of intestate secession. These are rigid and inflexible rules that prioritize heirs based on their legal relationship to the deceased person, which may be entirely contrary to her wishes and specific provisions of her will.

Affidavit of Heirship

In Texas, even if a will is not submitted to probate in a timely manner, a court proceeding is still generally required to determine which heirs are living and to transfer property. This process can be time consuming, since all assets and debts will need to be inventoried. However, if the decedent's only property at the time of death was real estate, and there are no existing debts beyond mortgages, transfer of this property can be done by simply completing an Affidavit of Heirship and recording it in the land records where the decedent owned the property. The affidavit must be signed by two disinterested witness, meaning they do not stand to receive anything from the estate. Once this process is complete, the heirs take ownership.

Small Estates

In Texas, if the property owned by the decedent is small, probate can be avoided by signing a Small Estate Affidavit. This method applies only in situations where either no valid will is present or the time period for probating the will has expired. The entire estate must be valued at less than $50,000 in order to qualify, and state law requires the signatures of all of the decedent's heirs plus two disinterested witnesses. Once the affidavit is completed, it may be filed in the appropriate probate court and the presiding judge will issue an order approving the affidavit and transfer of assets. A potential downside to this method is that some financial institutions not familiar with Texas law may be hesitant to comply with orders not based on a full probate of the estate.

Family Settlement Agreements

As an alternative, Texas recognizes family settlement agreements, regardless of the size of the estate. These agreements are voluntary contracts between heirs detailing how property is to be distributed and can be used whether a will is present or not. A probate court has no power to invalidate a settlement agreement, even if the document produces a different result from how property would have passed according to Texas law or according to a valid will. However, a potential downside to family settlement agreements are they require all of the heirs' signatures in order to be effective. This might not be possible if there are dozens of heirs, or if severe conflict within the family makes it impossible to come to agreement.