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Texas Probate


Probate is the legal process used to transfer ownership of a person’s property on death.  When someone dies with a will, an application is filed with an appropriate court, asking the court to admit the will to probate. The application is generally filed by the person named as the executor under the terms of the will, but in some cases it can be filed by a beneficiary named under the will.  When the court admits the will to probate, the court is essentially determining that the document in question is the official last will of the deceased individual. Once the will is admitted to probate by the court, the title and ownership of assets passes pursuant to the terms of that will.


Is probate expensive in Texas?


In Texas, when someone dies with a well-drafted will, the probate process and the administration of the estate of a deceased individual often are relatively inexpensive and short in duration, especially when compared with the probate process in other states. Texas law allows for “independent administration” by an executor or administrator of an estate, which essentially means that the named executor or administrator of the estate has the authority to take action on estate matters independently from the court. In those cases where independent administration is available, there might be a limited need for attorney involvement as well.  If the deceased person’s will does not provide for “independent administration,” or if other circumstances exist that make independent administration unavailable, then the estate must proceed as a “dependent administration,” which requires more court involvement and expense.


Can I represent myself in a probate proceeding in Texas?


Some courts in Texas will permit a person to file a probate application without the representation of an attorney.  Other courts in Texas will not. If you are interested in trying to represent yourself in a probate proceeding, you should begin by asking the staff of the court that will preside over the probate proceeding in question, in the county where the deceased person resided at the time of death.


What if someone dies without a will in Texas?


When a person dies without a will, that individual is said to die “intestate.”  In those situations, the deceased person’s property passes by the laws of “intestacy.”  Essentially, property passes to the person’s heirs as determined by Texas statute and law.  Many married individuals assume that all of their property passes to their spouse on their death, whether they have a will or not.  That may or may not be the case, depending upon the nature of the property owned, and whether there are any children of the decedent who are not children of the surviving spouse.  For more information, see Heirship Determinations in Texas.



Do I have to probate the will of my spouse?


Many surviving spouses in Texas assume that it is unnecessary to probate the will of their spouse after death.  The surviving spouse often assumes that all of the property of their deceased spouse automatically passes to him or her.  That may or may not be true, depending upon a variety of facts and circumstances, including the nature of the property owned, and whether there are any children of the decedent who are not children of the surviving spouse. A consultation with an experienced probate attorney can help you to determine whether probate is advisable and necessary, or not.


How long do I have to probate a will?


The general rule is that you have four years after a person’s date of death to probate his or her will.  After the expiration of four years, the will might still be able to be admitted to probate, but the person filing the application for probate has to show that he or she is not in “default” for waiting so long and failing to offer the will for probate within the four year period.  


The only thing in the estate is a house, do I really need to probate the will?


When the only thing remaining in the estate is a house, and there are no outstanding debts, other than the mortgage owed on the house itself, then it might be possible to do an abbreviated probate process, known as probating the will as a “muniment of title.”  The process is cheaper and involves fewer duties to the probate court. If there are outstanding debts owed by the person who has died, then probating the will as a muniment of title is not an option.


How do I begin the probate process?


We assist with probate and estate administration in Austin and surrounding areas. We offer a free initial consultation to prospective clients on probate and estate administration matters.  You can call or e-mail us to set up an initial consultation, which can occur either by phone or in person depending on your preference.  In order to proceed with the probate application, we will eventually need the original signed will, if available, plus a death certificate, and a general list of the assets that the decedent owned at the time of death. If the person died without a will, then we will need detailed information on the individual’s marital and family history.

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