Do You Have to Probate a Will According to the Laws in the State of Texas?

By Cindy DeRuyter, J.D.

Do You Have to Probate a Will According to the Laws in the State of Texas?

By Cindy DeRuyter, J.D.

When a Texas resident dies or when another state's resident who owned real estate in Texas dies, loved ones may need to open a probate proceeding. Probate is the process of administering the estate according to state law. If the deceased person left a valid will, the goal of probate is to ensure payment of valid debts and expenses and to ensure that the executor distributes assets to heirs as specified in the will. Probate is not necessary for "nonprobate" assets or for certain small estates.

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Types of Probate Administration in Texas

There are several different types of probate in Texas. The most common type is "independent administration." If the deceased person had a valid will naming someone as the estate's executor and requested independent estate administration, the court can officially appoint the executor without requiring a bond or insurance. When this happens, the court gives the executor the legal authority she needs to administer the estate without strict court oversight.

If the estate does not qualify for independent administration, the executor opens a "dependent administration" probate matter with the court. If someone died without a will, dependent administration is necessary. The executor must obtain a bond, get court approval for distributions, and file periodic reports with the probate court.

A third process is "muniment of title." If there was a valid will, no debts other than mortgage debt, and no Medicaid claims against the estate, the court enters the will into probate court but does not appoint an executor. The person filing for muniment of title is responsible for filing an affidavit with the court within six months, attesting that he adhered to the terms of the will.

When a Texas resident dies without a will and the value of the estate is under $75,000 (excluding the homestead and certain other exempt property), heirs can sometimes use a Texas Small Estate Affidavit instead of opening a probate matter with the court.

Nonprobate Assets

Whether or not a deceased person left a valid will or trust, certain assets pass outside of probate court automatically. These include:

  • Joint tenancy. Assets owned by two or more people as "joint tenants with rights of survivorship" pass to the surviving joint owner(s) when one owner dies.
  • Retirement assets. If the deceased person owned a 401(k), 403(b), individual retirement account (IRA), Roth IRA, or other retirement account for which there were one or more named beneficiaries, those retirement assets pass outside of probate to the beneficiaries.
  • Life insurance. Similarly, life insurance with named people or charitable organizations as policy beneficiaries pass outside of probate.
  • POD/TOD. If the deceased person listed a "pay on death" (POD) beneficiary on bank accounts or a "transfer on death" (TOD) beneficiary on stocks, bonds, or mutual funds, those assets pass to the named beneficiaries without court intervention.
  • Life estate or TOD real estate. It's possible for real estate to pass outside of probate in Texas if the owner created a life estate or a TOD deed for the property.
  • Trust assets. Finally, assets held inside a living trust pass outside of probate court.

To determine whether a loved one's estate requires probate administration in Texas, consult with a Texas-licensed probate attorney. Either an attorney or an online service provider can also help you plan ahead so your estate avoids probate when you die.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.