What is probate?

Probate is the legal process to distribute a person's property after they die. With court approval, the will is validated, the debts are paid, and the rest of the property passes to the heirs. If there is no will, the estate may still have to go through probate.

Texas has several types of probate methods.

Estate administration is the most formal. In administration, the court appoints a specific person to manage the whole process. This person usually has an attorney to help with all the tasks.

Smaller estates are often settled through faster, less formal methods. With a court order in hand, the heirs can directly collect the property from banks, transfer real property, etc.

Texas Law

Texas laws governing probate are primarily in the Texas Estates Code. Older publications may refer to the Texas Probate Code, as it was known before 2014.

Texas Estates Code
Law related to estate administration, probate, wills, intestate succession, guardianship, and durable powers of attorney.

Understanding the Law

What Is Probate? (Nolo)
Basics of the probate process.
Texas Probate Passport (Texas Young Lawyers Association)
A guide to probate and estate planning in Texas.
Surviving Texas Probate (Wievel Law Firm)
The purpose of this handbook is to help explain the estate administration process in Texas by providing a checklist of the steps that generally must be taken.

Do I need probate?

The need for probate typically increases with the size and complexity of the estate. Depending on the situation, probate may be necessary to:

transfer property or title;
pay the creditors;
determine the heirs;
resolve disputes.

Not all property passes through the probate process. Nonprobate property passes directly to the beneficiaries without court approval. This may include certain types of bank accounts, life insurance proceeds, and other assets.

Understanding the Law

Transferring Property After Death and Avoiding Probate Court (TexasLawHelp.org)
The deceased person's property may sometimes pass without the need for a formal court proceeding.
Will Probate Be Necessary? (Nolo)
Not all estates need to go through probate.
What happens if you don't probate in Texas? (Forbes & Forbes)
Potential consequences of choosing not to go through probate.

Which probate method is right for me?

Only an attorney can answer this question. Our guide provides general information about different probate methods, but it is not a substitute for legal advice.

Understanding the Law

Handling an Estate (TexasLawHelp.org)
This article discusses some different methods for handling an estate—the property owned and debt held by a person—in Texas.
Probate FAQs (Charles Kennedy P.C.)
Frequently asked questions about the probate process.
Common Alternatives to Probate in Texas (Texas Agriculture Law Blog)
This blog post highlights the most common probate alternatives for those involved in agriculture.

Do I need an attorney?

This will depend on the probate method and on the court's policy.

Estate administration requires an attorney. This is because the estate representative represents the interests of many parties. Bexar County's Court Policy Regarding "Pro Se" Applicants explains:

As executor of a decedent’s estate, you don’t represent only yourself. An executor represents the interests of beneficiaries and creditors. [...] The lawyer you hire represents you in your capacity as executor and assists you in representing those for whom you are responsible.

Some informal probate methods may not require an attorney. The rules may differ from court to court, so it's a good idea to check the local requirements before applying.

Understanding the Law

I'm the Executor—Do I Need to Hire a Lawyer? (Nolo)
When a lawyer may or may not be needed to settle an estate.
Travis County Court Policy Regarding Pro Se Applicants
The Travis County Probate Court answers frequently asked questions about probate in Texas.
Paying a Probate Lawyer: Costs & Types of Fees (AllLaw.com)
There are several different ways to structure payments to a probate lawyer.

Important Terms

Administrator
A person appointed by a probate court to handle the distribution of the property of someone who has died without a will, or with a will that fails to name someone to carry out this task.
Administration
The process during which the executor or personal representative collects the decedent’s assets, pays all debts and claims, and distributes the residue of the estate according to the will or the state law intestacy rules (when there is no will).
Attorney Ad Litem
An attorney appointed by the court to represent the interests of heirs whose names or locations are unknown. Usually, an attorney ad litem's involvement is limited to the heirship determination proceeding. The court may expand that appointment to include the representation of an incapacitated heir.
Beneficiary
A person or organization legally entitled to receive benefits through a legal device, such as a will, trust, or life insurance policy.
Decedent
An individual who has died.
Descent And Distribution
The rules by which an estate is distributed after the owner's death. This may occur according to the decedent's estate plan or according to intestate laws if the decedent died without an estate plan.
Estate
An estate is the total property; real and personal, owned by an individual prior to distribution through a trust or will.
Executor
An executor is someone named in a will as the person who will carry out the testator's formal wishes. Typical duties of an executor include paying outstanding taxes/debt and distributing any remaining assets among the testator’s heirs.
Heir
Someone who has a right, under state law, to inherit a deceased person's property (which means the closest family members). The term is often used in a broader sense, to include anyone who receives property from the estate of a deceased person.
Intestate
Intestate refers to when a person dies without a valid will. In these cases, the distribution of the deceased's property is governed by the laws of intestacy, which vary from state to state.
Letters of Administration or Letters Testamentary
The court document that establishes the authority to act as a guardian, conservator, or personal representative (executor or administrator). In decedent’s estates, an executor’s letters are designated "letters testamentary" and an administrator’s letters are "letters of administration."
No-Contest Clause
A provision in a will or trust agreement that provides that someone who sues to receive more from the estate or trust or overturn the governing document will lose any inheritance rights he or she has.
Nonprobate Property or Nontestamentary Transfer
A transfer of property that occurs upon the death of a decedent, but is not controlled by the decedent's will or by the rules of descent and distribution. The most common non-testamentary transfers arise from property held in joint tenancy with right of survivorship, or from payable on death or similar accounts.
Probate
"Probate” is the legal process used to distribute a person’s property (called an “estate”) after that person dies.
Probate Property or Probate Estate
All the assets owned at death that require some form of legal proceeding before title may be transferred to the proper heirs.
Residuary Estate
The property remaining in a decedent’s estate after payment of the estate’s debts, taxes, and expenses and after all specific gifts of property and sums of money have been distributed as directed by the will.
Testator
The person who makes a will.
Will
A document in which the will maker specifies who is to receive his or her property at death and names an executor.

Texas Law

Texas Estates Code, Chapter 22
General statutory definitions for Texas probate proceedings.

Additional Resources

Glossary of Estate Planning Terms (American Bar Association)
Important terminology for probate and estate planning.
Glossary of Texas Probate Terms (The Johnson Firm)
A list of commonly used terms in probate. Includes references to Texas statutes and cases.
Nolo's Free Dictionary Of Law Terms and Legal Definitions (Nolo)
Find plain-English definitions for legal terms by browsing Nolo's Plain-English Law Dictionary.

E-Books

Texas probate passport: A guide to probate and estate planning in Texas
“Texas Probate Passport” has been prepared to inform the public regarding: (1) what happens legally to the property of a person when he or she dies with a will or without a will; and (2) how the probate process works.
Texas probate forms & procedures
This book breaks down Texas law as it applies to various steps in the probate process. Sample forms are also provided throughout.
Texas probate, estate, and trust administration
This set provides coverage of every aspect of probate law and estate and trust administration in Texas. It includes sample forms and letters, procedural checklists, lists of source materials, charts and diagrams, tables of statutes, rules and regulations, and a quick reference index.
Texas probate system
This State Bar of Texas manual provides a thorough overview of probate law in Texas, from the initial contact with a client to the closing of the estate. It contains forms, sample letters, worksheets, and checklists. Available as an e-book on OverDrive.
The executor's guide : settling a loved one's estate or trust
After a loved one has died, many people find themselves responsible for settling the deceased's affairs with little or no previous experience. This book provides easy-to-follow steps on how to transfer property, probate a will, claim life insurance, and more.

Books

O'Connor's Texas probate law handbook [print book]
Call Number: KFT 765 H67
This title explains probate law — wills, intestate succession, various types of administration, will contests, and probate alternatives — with references to statutes, court rules, and case law.
O'Connor's Texas probate forms [print book]
Call Number: KFT 765 D38
This exhaustive collection from Mickey Davis, an authority on Texas probate law, provides applications, responses, orders, agreements, and other probate forms that can be tailored to any estate.
Texas practice guide: Probate [print book]
A guide for Texas litigators that includes step-by-step analysis of the probate process, as well as easy-to-use forms, checklists, and practice tips.
Texas practice series: Probate and decedents' estates [print book]
An in-depth discussion of probate proceedings and estate administration in Texas.
Texas forms manual : a guide to Texas probate [print book]
This two-volume forms manual covers all aspects of probate practice in Texas with forms and explanatory text. Topics include independent, dependent, and temporary administration, muniment of title, simple probate proceedings, and guardianship.