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Probate Law

Statutes, books, and online resources on the topic of probate law in Texas.

Where do I begin?

Dealing with a loss of a loved one can feel overwhelming. The resources below can help you learn about the various tasks that must be completed during this time. 

Understanding the Law

Where do I look for the will?

Most people keep their will in a place they consider safe. You may want to check the person's files, deposit boxes, dresser drawers, and other places. People who were close to the deceased may also know where it was kept.

If you can't find a will, you can ask the county clerk's office to see if it's been deposited for safekeeping. Wills are sometimes stored with the county clerk, but this is rarely done and is not the same as probating a will

Texas Law

Understanding the Law

Did the deceased have Medicaid?

If the person received Medicaid benefits over $3,000, the state may have a claim against the estate. Medicaid claims are part of the Medicaid Estate Recovery Program to help the state recover some of its expenses.

In many cases, the state won't ask for any money. This includes cases where there is a surviving spouse or children under 21, the estate is very small, or there is another qualifying condition. 

An existing claim is considered an estate debt, which can affect the probate process. If the state does have a claim, heirs who face financial difficulty may apply for a hardship exception.

Understanding the Law

Who pays for the funeral?

If the estate has enough money, the funeral will typically be paid from those funds. The family may have to pay the bill up front and file a claim later. Funeral expenses and last illness expenses are Class 1 claims, meaning they'll be paid before any other estate debts.

If the heirs cannot be found or refuse to pay for the funeral, a qualified person can apply for an emergency intervention. The court can order a transfer of up to $5,000 directly from the deceased person's money to pay for the funeral.

Financial assistance may be available for low income-families who can't afford a funeral. Burial help is available for BexarHarrisTarrant, and Travis counties. Contact your local health department to learn about the programs in your area. 

Texas Law

Understanding the Law

Can I withdraw money from the person's bank account?

Typically, not right away. You may have to wait until the court appoints an executor or administrator. This person would be authorized to collect and distribute estate property. If you're using an alternative probate method, you may have to wait until the court approves your application.

Transferring nonprobate property doesn't require court approval. In this case, a bank can transfer the funds directly to the beneficiary listed on the account. Nonprobate accounts often include:

  • accounts with a transfer-on-death (TOD) designation;
  • accounts with a payable-on-death (POD) designation; and
  • joint accounts with a survivorship agreement. In Texas, joint accounts do not automatically come with a survivorship agreement, so it's important to double check.

If there was no will, the heirs or creditors may ask the court to see the account balances. They must wait at least 90 days from the person's death. The court can grant the request if no one has applied for administration during that time. 

Texas Law

Understanding the Law

Can I access the person's safe deposit box?

A spouse, a parent, an adult child, or a named executor may access the deceased person's safe deposit box to search for:

  • a will;
  • a deed to a burial plot;
  • burial instructions; or
  • a life insurance policy.

The box custodian or a bank employee must supervise the search. If any of the listed documents are found, they may be removed and delivered to the proper person or location. This law is in Section 151.004 of the Estates Code.

If a bank doesn't let you look at the safe deposit box, you can petition the court for an order granting access.

Texas Law

Understanding the Law