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Probate Law

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

 Family Protections

Note This page discusses probate property that is exempt from creditor claims. This is not the same as exemption from taxes, which is covered in the article Inherited Homes and Homestead Exemptions.

Exemptions in ProbateHomestead PropertyExempt Personal PropertyFamily Allowance

Exemptions in Probate

Certain property is protected against creditor claims. The heirs may be able to keep these possessions even if the deceased had unpaid debts.

Note that exemption laws only protect against unsecured claims like credit cards and medical debts. If a loan was secured by a collateral, the new property owner must continue making payments to avoid foreclosure or repossession. Secured debts often include car loans, mortgages, and home equity loans. 

Understanding the Law

Homestead Property

Besides exemption from creditor claims, Texas law allows the surviving spouse or minor children to stay in their primary home. To qualify, the surviving spouse or children must be using the home as their primary residence. This is true even if the property was inherited by another party.

The right to live in the house does not grant title to property and comes with certain responsibilities. This may include having to pay the mortgage, property taxes, HOA dues, and keeping the property in good shape. The homestead is exempt from general creditor claims, but failure to pay certain debts could result in foreclosure. See Section 102.004 of the Estates Code for a list of such debts.

Texas  Law

Understanding the Law

Exempt Personal Property

Up to $100,000 worth of exempt personal property may be set aside for family's use during the course of estate administration. According to Section 42.002 of the Estates Code, the following property qualifies as exempt:

(1) home furnishings, including family heirlooms;
(2) provisions for consumption;
(3) farming or ranching vehicles and implements;
(4) tools, equipment, books, and apparatus, including boats and motor vehicles used in a trade or profession;
(5) wearing apparel;
(6) jewelry not to exceed 25 percent of the aggregate limitations prescribed by Section 42.001(a);
(7) two firearms;
(8) athletic and sporting equipment, including bicycles;
(9) a two-wheeled, three-wheeled, or four-wheeled motor vehicle for each member of a family or single adult who holds a driver's license or who does not hold a driver's license but who relies on another person to operate the vehicle for the benefit of the nonlicensed person;
(10) the following animals and forage on hand for their consumption:
(A) two horses, mules, or donkeys and a saddle, blanket, and bridle for each;
(B) 12 head of cattle;
(C) 60 head of other types of livestock; and
(D) 120 fowl; and
(11) household pets.

At the end of administration, exempt property may be distributed according to the will or intestate succession laws. Even though it's protected from most creditor claims, exempt property can be used to pay for the funeral and last illness expenses.

Texas Law

Understanding the Law

Family Allowance

If the family needs additional income, the judge may order a one-year family allowance to be paid out of the estate. A family allowance can support a surviving spouse, minor children, or incapacitated adult children. This is in addition to the homestead use and personal property exemption.

There is no law that sets a limit for the family allowance, but the applicant will have to justify their requested amount.  If a spouse or a child has enough of their own personal property to support them for a year, the court may reduce or reject the request.

Family allowance is protected from most creditor claims, but funeral expenses and last illness claims will be paid first. If the estate doesn't have enough funds to pay an allowance, the executor may have to sell estate property or even use nonprobate property like life insurance proceeds. 

Texas Law

Understanding the Law