"Probate" is the court-supervised process of carrying out a decedent's wishes — paying debts and taxes, then distributing remaining property to heirs or beneficiaries. Texas has one of the fastest, least expensive probate systems in the country, largely because Texas widely allows "independent administration," which removes the court from most of the day-to-day work. But not every estate has to be probated, and not every probate looks the same. Whether your situation involves a clear will, a contested estate, a missing original document, or no will at all, the right path through Texas's Estates Code depends on facts you should know before showing up in court. This guide covers Texas wills, trusts, and probate — what to do, what not to do, and how to think about it. This is general information, not legal advice; consult a Texas-licensed attorney for advice about your specific situation.

What probate is in Texas

Probate is the legal process of administering a decedent's estate under court supervision. The probate court verifies the validity of the will (if any), appoints a personal representative (executor for a will or administrator for an intestate estate), notifies creditors, collects and inventories assets, pays debts and taxes, and distributes the remainder to beneficiaries or heirs.

In Texas, probate jurisdiction is split between county courts (in smaller counties) and statutory probate courts (in larger metros like Harris, Dallas, Bexar, Travis, Tarrant, Denton, Collin, El Paso, Galveston, and Hidalgo). The Texas Estates Code governs the substantive law; local rules and procedures fill in the gaps.

Not every Texas estate has to be probated. Estates may bypass probate entirely when:

  • Total estate value is below the small-estate threshold (currently $75,000 for the small estate affidavit procedure, Tex. Est. Code § 205.001 — excluding the homestead).
  • All assets are non-probate (joint with right of survivorship, payable-on-death accounts, beneficiary-designated retirement accounts and life insurance, or assets held in trust).
  • An affidavit of heirship under Tex. Est. Code § 203.001 provides title-clearing evidence sufficient for the family's purposes.
  • A will-as-muniment-of-title proceeding clears title without administration (Tex. Est. Code § 257.001).

Wills: requirements for a valid Texas will

A Texas will must meet specific formal requirements to be valid for probate. The two main types:

Attested will (Tex. Est. Code § 251.051) — the standard formal will. Requirements:

  • Testator must be at least 18, of sound mind, and not laboring under undue influence or duress.
  • Will must be in writing.
  • Signed by the testator (or by another at the testator's direction and in the testator's presence).
  • Attested by at least two credible witnesses, each at least 14 years old, who sign in the testator's presence.
  • A "self-proving affidavit" (Tex. Est. Code § 251.104) executed at the same time as the will makes probate faster — the witnesses' affidavits sworn before a notary satisfy proof of execution without their later testimony.

Holographic will (Tex. Est. Code § 251.052) — a will entirely in the testator's handwriting, signed by the testator. No witnesses required. Holographic wills are harder to probate because handwriting must be proved by witnesses familiar with the testator's writing.

A valid Texas will can appoint an executor (and request independent administration), distribute specific bequests and the residue of the estate, name guardians for minor children, and create testamentary trusts. For a step-by-step on drafting a will that will hold up in Texas probate court, see our spoke: How to write a valid will in Texas.

Intestate succession: who inherits if there's no will

When a Texas resident dies without a will (intestate), Tex. Est. Code Chapter 201 governs distribution. Texas distinguishes between community property and separate property.

Community property (Tex. Est. Code § 201.003):

  • If all the decedent's children are also the surviving spouse's children: the surviving spouse takes all community property.
  • If any child of the decedent is NOT a child of the surviving spouse: the surviving spouse keeps their half of community property; the decedent's half passes to the decedent's children per stirpes.

Separate property (Tex. Est. Code §§ 201.001–201.002):

  • Personal property: if survived by spouse and descendants, spouse gets 1/3 and descendants get 2/3. If survived by spouse and no descendants, spouse gets all separate personal property (subject to parents' interest in some cases).
  • Real property: if survived by spouse and descendants, spouse gets a life estate in 1/3 and descendants get the remainder; spouse's life estate is in possession only.

If there's no surviving spouse or descendants, separate property passes to the decedent's parents, then siblings (or siblings' descendants), then grandparents and their descendants, in the order set out in Tex. Est. Code § 201.001. Adopted children take from their adoptive parents the same as biological children (Tex. Est. Code § 201.054). For a fuller breakdown — including step-children, adopted children, and unmarried partners — see our spoke: Texas intestate succession: who inherits if there's no will?.

The 4-year rule

A Texas will must generally be admitted to probate within 4 years of the testator's death (Tex. Est. Code § 256.003). After 4 years, the will is not admissible for the purpose of administration — though it may still be admitted as a muniment of title if the applicant can prove they were not "in default."

"Default" means more than mere delay; the applicant must show good cause for failing to probate within 4 years (illness, mistake, lack of awareness of the will's existence). Courts construe this narrowly. For families who discover an old will (parent's, grandparent's, a long-deceased relative's) the 4-year rule can be an unwelcome surprise. There is no equivalent deadline for intestate administration — even decades-old intestate estates can be opened, though title issues and creditor questions get harder to resolve over time. For more, see our spoke: Probate timeline in Texas (4-year rule).

Independent vs dependent administration

Texas allows two forms of estate administration. The distinction is dramatic in terms of cost, speed, and court involvement.

Independent administration (Tex. Est. Code Chapter 401):

  • The executor or administrator operates with minimal court supervision after qualification.
  • No need for court approval of routine acts (paying debts, selling assets, distributing property).
  • No annual accountings required unless requested by an interested party.
  • Typical timeline: 6 to 12 months from filing to closing.
  • Substantially less expensive than dependent administration.

Independent administration is available when the will requests it, when all beneficiaries (or all heirs in an intestate estate) consent, and when the court determines it serves the best interests of the estate. Most Texas wills request independent administration by default; most Texas estates qualify.

Dependent administration:

  • Every significant act requires court approval — sale of real or personal property, payment of debts beyond ordinary expenses, distribution of property.
  • Annual accountings required (Tex. Est. Code Chapter 359).
  • Bond required (Tex. Est. Code § 305.001).
  • Substantially more expensive due to ongoing court involvement, attorney fees, and formal accountings.
  • Typical timeline: 18 to 36 months or more.

Dependent administration is required when the will explicitly demands it (rare), when beneficiaries do not consent to independent administration, or when the court is not satisfied that independent administration is appropriate (for instance, conflicts among heirs). The choice between the two has more financial impact on most estates than any other procedural decision. For a comparison of when each makes sense and how to convert from one to the other, see our spoke: Independent vs dependent administration in Texas.

Affidavit of heirship

For real property (real estate), Texas allows family members to establish heirship outside of probate using an Affidavit of Heirship under Tex. Est. Code § 203.001. The affidavit is sworn by two disinterested witnesses (not heirs) who personally knew the decedent and their family history. The affidavit is then recorded in the deed records of the county where the property is located.

Affidavit of heirship works when the estate involves real property only (no other significant assets requiring administration), all heirs are in agreement, and family history is well-documented. Many title insurers also prefer a 5-year waiting period since death, though the statute does not impose one.

It does NOT replace probate for bank accounts, brokerage accounts, or retirement accounts (financial institutions typically require letters testamentary or letters of administration), for contested estates, or for estates with significant creditors. For families who only need to clear title to a homestead so it can be sold or refinanced, an affidavit of heirship is often the cheapest, fastest tool — though it doesn't have the same finality as a court order. For more, see our spoke: Texas affidavit of heirship.

Small estate affidavit and muniment of title

Texas offers two additional simplified procedures for small or simple estates.

Small Estate Affidavit (Tex. Est. Code Chapter 205): available when the decedent's total estate (excluding homestead and exempt property) is $75,000 or less. Requires no will — intestate only (Tex. Est. Code § 205.001(a)). All heirs must sign. A 30-day waiting period from death applies. Filed in probate court, served on creditors, court order approves the affidavit. Cheaper than full administration but limited to small intestate estates.

Will as Muniment of Title (Tex. Est. Code § 257.001): available when the decedent died with a valid will and the estate has no unpaid debts other than secured debts on real property. The court admits the will to probate solely to serve as evidence of title — no executor is appointed, no administration is opened. Common for estates that consist primarily of a homestead and the will leaves it to one or two beneficiaries. Saves the cost and time of full administration when no creditor or administrative work is needed.

Both procedures must be filed in the appropriate Texas county and require court approval, but they avoid the cost and complexity of full administration.

Avoiding probate: trusts, joint tenancy, and TODDs

Many Texans want to avoid probate entirely. Texas law offers several tools:

Revocable living trust. The settlor transfers assets into a trust during their lifetime; on death, the successor trustee distributes them per the trust's terms without probate. The settlor remains in control during life. A pour-over will catches anything not retitled into the trust. Texas does not have inheritance or estate taxes that make trusts uniquely attractive for tax purposes, but trusts can simplify multi-state estates, protect privacy (probate is public; trust administration is not), and bypass the 4-year rule.

Transfer on Death Deed (TODD) (Tex. Est. Code Chapter 114). A property owner designates a beneficiary who automatically takes the property at the owner's death. The TODD must be recorded in the county deed records before death. Revocable during the owner's lifetime. Effective only for real property in Texas. Adopted by the Texas Legislature in 2015 and now a popular probate-avoidance tool for the homestead.

Joint tenancy with right of survivorship. Most commonly used for bank accounts and brokerage accounts. The surviving account holder takes the asset automatically. For real property in Texas, joint tenancy with right of survivorship requires a written agreement (Tex. Est. Code § 111.001) — unlike many states, the survivorship feature is not automatic.

Payable-on-death (POD) and transfer-on-death (TOD) designations. Bank accounts, certificates of deposit, brokerage accounts. The named beneficiary takes the account at death.

Beneficiary designations on retirement accounts and life insurance. IRAs, 401(k)s, life insurance — these pass to the named beneficiary regardless of what the will says. Keeping beneficiary forms current is the single most-overlooked piece of estate planning.

For the practical pros and cons of each Texas probate-avoidance tool, see our spoke: Avoiding probate in Texas: trusts, joint tenancy, TODDs.

Trust vs will: which is right for Texas?

"Should I have a will or a trust?" is one of the most common Texas estate-planning questions.

A will is cheaper to draft, easier to revise, and adequate for simple estates: one home, ordinary bank accounts, one or two beneficiaries who get along. A will triggers probate at death — but Texas independent administration keeps this manageable for most estates. A will is also the only instrument that can name guardians for minor children in Texas.

A trust is more expensive to draft and maintain (assets must be retitled into the trust during life). It avoids probate for assets held in the trust, provides incapacity planning (the trustee takes over if the settlor becomes incapacitated), and is useful for out-of-state property, blended families, special-needs beneficiaries, asset-protection planning, business interests, or anyone wanting to keep their estate plan private. Pour-over wills catch any assets not retitled into the trust.

Texas's relatively efficient independent administration system means avoiding probate is less urgent than in states with slow, expensive probate processes. For many Texas families, a well-drafted will plus beneficiary designations on financial accounts is sufficient. Trusts make more sense when there's a specific reason — incapacity, privacy, asset protection, or complex distributions — that goes beyond simple "transfer at death." For a head-to-head comparison and Texas-specific scenarios, see our spoke: Trust vs will in Texas.

Frequently asked questions

How long does probate take in Texas?

Independent administration typically takes 6 to 12 months from filing to closing. Dependent administration runs 18 months to 3+ years. Small estate affidavit proceedings can close in 30 to 60 days. The biggest variables are the complexity of the estate (multiple properties, business interests, contested provisions), creditor claims, and whether all beneficiaries cooperate.

Do I need a lawyer to probate a Texas estate?

Texas does not generally permit a non-attorney to represent an estate in probate court. An individual representing themselves can file simple matters pro se, but representing an estate involves representing other beneficiaries — practice of law that's restricted to licensed attorneys. Most Texas probate cases involve an attorney. Fees for routine independent administration are often flat-fee or a small percentage of the estate's value.

What if there's no will?

The estate passes by intestate succession under Tex. Est. Code Chapter 201. An administrator (rather than an executor) is appointed by the court. The same probate court procedures apply, but distribution follows the statutory scheme rather than the decedent's wishes.

What happens to the homestead?

The Texas homestead has special protections (Tex. Const. art. XVI, § 50 and Tex. Est. Code Chapter 102). The surviving spouse and minor children have a statutory right of occupancy. The homestead cannot be partitioned during the spouse's life. Creditors generally cannot reach the homestead even in probate, except for purchase-money loans, tax liens, and certain other narrowly-defined claims.

Can I write my own will in Texas?

You can, but be careful. A holographic will entirely in your handwriting and signed by you can be valid under Tex. Est. Code § 251.052. An attested will requires two competent witnesses. Form-book wills downloaded from the internet without proper execution often fail in probate. The cost of a properly drafted Texas will is modest; the cost of a defective will discovered at probate is high.

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