Texas Probate Procedures

This article discusses several of the many different probate procedures in Texas. Please note this isn't an exhaustive list; rather, it's a list of the most common procedures.

No Procedure

Probate in Texas is not mandatory. This means if you are able to transfer title to all of the decedent's assets and otherwise take of decedent's debts, then no probate may be necessary. However, you should always discuss your plan of action with a probate lawyer first in order to make sure you're not subjecting yourself to any liability. Many times, people are shocked to find out that the surviving spouse does not always get everything after their spouse passes away, especially when there are children from a prior marriage. If these considerations aren't taken into account, the other heirs can sue you for wrongfully distributing the estate, even if there was no court proceeding!

Small-Estate Affidavit

A small-estate affidavit is a limited court procedure that allows certain estates to pass without the need for a formal administration. They require that the value of the estate is less than $75,000 after excluding the homestead and exempt property, the total assets excluding homestead and exempt property must exceed the estate's liabilities, no petition can be pending or have been previously granted, and at least 30 days have elapsed since date of death. Another drawback is that it only clears title to the homestead, and even then only in certain scenarios. It does not clear title to non-homestead land. See Texas Estates Code Section 205.006.

Muniment of Title

This is a quick and usually inexpensive method of probating a will. In short it allows the executor of the will to use the will to transfer title without the cost and expense of an administration. It requires that the decedent died with a valid will, and that the only unpaid debts of decedent are debts secured by real property. There can't be any debts owed to Medicaid either. An unofficial requirement is that you are not trying to transfer any brokerage accounts or other accounts with a west-coast or east-coast or Chicago transfer agent. Many times these transfer agents refuse to accept a muniment of title, meaning you'll have to file suit against them to receive the property. Many times, it's less expensive to just file for an administration than it is to have to worry about suing out-of-state transfer agents.

Proceeding to Determine Heirship

This a fairly expensive and time consuming procedure that ends with a court order stating who the heirs are to a decedent and their respective shares amongst them. It is used when there is no will, or if there is an improperly drafted will, or if a will or trustee needs to determine someone's heirs based on the language in the will or trust.

It is often used in conjunction with an administration: independent if all heirs agree and no creditor issues or dependent if the heirs don't agree and/or creditor issues.

Independent Administration

This is the kind of administration that most valid, properly drafted Wills in Texas will fit into. It allows for an administration with limited court involvement, typically a single court hearing and the filing of an inventory and appraisement and claims of the estate. After that, the executor is usually free to act without court involvement and without posting a bond. It is also available without a will if all the heirs agree to an independent administration.

Dependent Administration

This is a procedure that is long and expensive because it has much more court involvement than an independent administration. It is used when there is no will and the heirs don't all agree on having an independent administration. Another reason would be if a will doesn't allow for independent administration (many improperly drafted wills fall into this category, as well as some very wealthy persons choose this on purpose). A final reason is that a dependent administration can help give the executor / administrator some protection from creditors as the court must approve all the disbursements of the executor / administrator.