Who Is Obligated to Probate a Will in Texas?

by Anna Assad

Probate is the legal proceeding used to uphold a will and wind up the final affairs of a deceased person, also referred to as a decedent. A probate case for a person who died with a will in Texas starts with a petition filed in court by an obligated and authorized person. The order of persons with probate authority for a decedent's estate is defined in the Texas Probate Code.

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Executor and Successor Executor

The executor is the individual designated by the decedent in his will to oversee the estate and transfer items to heirs. A successor executor is a person named in the will to act in place of the original executor if she cannot or will not accept the duty. The executor or successor executor are the first two people responsible for petitioning the court for probate in Texas after the decedent's death.

Living Spouse

A surviving spouse of the decedent is responsible for starting probate proceedings if the executor is deceased, unwilling to act or unable to act due to outside factors, such as a lack of mental competency or serious medical illness. The spouse must have been legally married to the deceased person at the time of his death. If the marriage was annulled, the couple divorced or a declaration voiding the marriage was made by either party, the former spouse cannot probate the will unless the document specifically cites the status of the union under Texas laws.

Main Beneficiary Under Will

The person who benefits the most under the will, receiving the biggest share of the estate overall, is next in line to probate a will after an executor and surviving spouse. The main beneficiary does not have to be a legal heir or even a person; an organization that is the primary beneficiary, such as a charity, can apply to probate court in Texas.

Legal Heir

The legal heir who is first in descent order under Texas laws is obligated to probate a will if the executor, spouse or primary beneficiary cannot or will not petition the court. The descent order starts with any children or grandchildren of the decedent, but if the person had no surviving children or grandchildren, the duty falls to her surviving parent. If both parents are deceased, the siblings or nieces and nephews of the deceased person are next in succession, and if none are living, the responsibility passes to other blood relatives, with grandparents coming first.