Texas Probate: An Overview

Texas probate is notably simpler than probate in many other states, thanks to something called the "independent administration" of estates. Using this process, most Texas executors wrap up estates with very little court supervision.

When Probate Isn't Necessary

Many types of assets never go through probate. Assets that can be transferred to the new owner without probate include:

• community property with right of survivorship
• property held as joint tenancy with right of survivorship
• payable-on-death bank accounts
• property held in a trust
• life insurance proceeds, and
• survivor's benefits from an annuity.

To keep the above assets out of probate, it's important to create and maintain them properly. See Nolo's page about ways to avoid probate for information about using the above assets.

Kinds of Texas Probate

Texas has several types of probate and other estate proceedings. The type of procedure depends on several factors, including the size of the estate and whether or not the deceased person had a will.

Formal Probate in Texas

Formal probate proceedings are likely required if the estate (the amount of property the deceased person left behind) is more than $75,000, not counting certain types of exempt property. This is true whether the deceased person had a will or not.

Formal probate proceedings in Texas can vary in the amount of oversight provided by the Texas probate court. Formal probate can be either:

• independent estate administration, or
• regular estate administration (also called "dependent" estate administration).

Independent Administration

Most Texas wills direct the executor to pursue independent administration, because it's quicker, simpler, and less expensive. The executor is, for the most part, able to act independently. Even if the will doesn't provide for independent administration (or there isn't a will at all), the executor or administrator can ask the court for authority to act as an independent executor—but only if all beneficiaries agree.

Independent administration means the executor:

• doesn't have to post a bond (an insurance policy protecting the estate against losses caused by the executor's careless or dishonest acts), and
• doesn't have to ask court permission before taking many steps to settle the estate, such as paying debts, setting aside a family allowance, selling estate property, and distributing assets to the people entitled to inherit them.

An independent executor still must publish notice to potential creditors and file an inventory of assets with the court. The executor must collect and safeguard estate assets until it's time to transfer them to their new owners. (Tex. Est. Code §§ 402.001, 403.051 (2024).)

Dependent Administration

Although it's less common, executors can also request dependent administration, which entails greater court supervision of the probate process. Dependent administration often occurs when a person dies without a will or the will doesn't provide for independent administration.

If the estate is going through a dependent administration, the executor or personal representative generally can't act for the estate without obtaining a court order authorizing that particular act. (Tex. Est. Code §§ 351.051, 351.052 (2024).)

Muniment of Title

The "muniment of title" process is a relatively simple and inexpensive way to transfer estate assets when there's a will. It's essentially a probate shortcut.

Muniment can be used when:

• there is a valid will, and
• there are no unpaid debts (including Medicaid claims for the recovery of benefits), except debts secured by real estate.

(Tex. Est. Code § 257.001 (2024).)

To get the process started, someone files the will and a request to probate the will as a muniment of title with the probate court. If the court decides there's no need for probate administration, it admits the will into probate as a muniment (evidence) of title to the estate assets. Essentially, the will serves as the document that transfers the assets to the persons or entities named in the will to inherit them. (Tex. Est. Code §§ 257.051, 257.052, 257.101 (2024).)

The court doesn't appoint an executor or administrator. The person who requested probate as a muniment of title, however, is required to file an affidavit (sworn statement) with the court within six months, stating that the terms of the will have been carried out (or, if some terms haven't been carried out, which ones). (Tex. Est. Code § 257.103 (2024).)

Small Estate Affidavits

In certain circumstances, people who inherit property don't have to open a probate court proceeding or use a muniment of title. If there is no will and the total value of the probate estate is $75,000 or less (excluding certain types of property), then the people who inherit the property can prepare a simple affidavit (sworn statement) to collect the property. (Tex. Est. Code § 205.001 (2024).)

Small Estate Procedures

Texas executors can use a simplified small estate process if the value of the property doesn't exceed what's needed to pay the family allowance (an amount paid to a surviving spouse, minor children, and "adult incapacitated" children) and certain creditors. The executor presents an accounting showing where the estate money went, and the court approves it and closes the estate. (Tex. Est. Code § 354.001 (2024).)

Similarly, if, after expenses of the funeral and last illness have been paid, the remaining assets don't exceed the amount of the family allowance, the court can issue an order of no administration. In that case, the court assigns the estate assets to the surviving spouse and minor children. (Tex. Est. Code §§ 451.001, 451.002, 451.003 (2024).)

Texas Probate Law and Process

A formal probate process in Texas usually requires taking steps such as these:

1. File an application to admit the will and begin the probate process, along with a copy of the will.
2. Petition the court for "letters" or letters testamentary, which show your authority to act as the executor or personal representative.
3. Give notice to beneficiaries named in the will, as well as any creditors.
4. Collect the assets of the estate, and pay off any debts.
5. Distribute the remaining assets.

A typical timeline for a probate proceeding in Texas, from filing the application to distributing the assets, is about nine to 12 months. However, exactly how long probate takes will depend on many factors, such as the complexity of the estate and whether family conflict exists.

Learn more about Texas probate shortcuts.

For more information on navigating the probate process and settling a loved one's estate, see The Executor's Guide by Mary Randolph (Nolo).