Probate without wills

How to File Probate Without a Will in Texas

Navigating probate without a will in Texas can be challenging, but understanding the process can make it easier. This guide provides a step-by-step approach to settling an estate when the deceased did not leave a will, ensuring assets are distributed according to Texas intestacy laws.

Is Probate Always Necessary in Texas Without a Will?

Probate is typically required when someone dies without a will (intestate). However, certain situations allow for alternative processes that can bypass or simplify probate:

Small Estate Affidavit: Estates valued under $75,000 (excluding homestead property) may qualify for a Small Estate Affidavit, allowing heirs to claim assets without a formal probate process.
Affidavit of Heirship: If the deceased had few assets, such as a home and a vehicle, heirs can use an Affidavit of Heirship to transfer property as long as there are no disputes over inheritance.
Non-Probate Assets: Some assets automatically transfer to beneficiaries and do not require probate, including:
- Life insurance policies with designated beneficiaries
- Joint bank accounts with a surviving account holder
- Retirement accounts (401(k), IRA, pensions) with named beneficiaries
- Transfer-on-Death (TOD) Deeds for real estate

If none of these options apply, formal probate is usually required.

How to Settle an Estate Without a Will in Texas

The Texas Estates Code outlines the process for administering an intestate estate. Below are the essential steps:

Determine Intestacy

Before starting probate, verify that the deceased did not leave a will. Check with their attorney, accountant, safety deposit box, and personal records to ensure no valid will exists. If no will is found, intestate probate begins.

Identify the Heirs

Under Texas law, intestate succession rules determine who inherits the deceased’s estate. The order of inheritance generally follows this structure:

Spouse and children (if applicable)
Parents and siblings (if no spouse or children)
More distant relatives if no immediate family exists

Assess the Estate’s Complexity

Small Estates: If the estate is valued under $75,000, a Small Estate Affidavit may allow heirs to bypass probate.
Larger Estates: If the estate includes real estate, significant assets, or debts, formal probate will be required.

Choose the Type of Administration

Depending on the estate’s size and complexity, the court may require different probate administration types:

Affidavit of Heirship: Used when the deceased owned real property, and all heirs agree on distribution. Two disinterested witnesses must sign the document before filing it with the county clerk.
Small Estate Affidavit: Allows heirs to inherit property if the estate qualifies as a small estate.
Formal Probate Administration:
- Independent Administration: Allows the administrator to manage the estate without direct court supervision if all heirs agree.
- Dependent Administration: Requires court approval for all actions, typically used when there are disputes or creditor claims.

Apply for Letters of Administration

To begin probate, the estate’s representative (administrator) must:

File an Application for Administration with the probate court in the county where the deceased lived.
Include details such as:
- The deceased’s personal information
- Confirmation that no will exists
- A list of heirs and their relationships
- A general description of estate assets
Pay the court filing fee ($200–$400, depending on the county).

Post a Bond (If Required)

If the court requires a bond, the administrator must post it to protect the estate’s beneficiaries. The amount is based on the estate’s value.

Notify Creditors and Heirs

Publish a Notice to Creditors in a local newspaper to allow creditors to file claims.
Notify all known heirs and creditors of the estate administration process.

Inventory and Appraise Assets

Within 90 days of receiving Letters of Administration, the estate administrator must file an inventory listing all assets, including:

Real estate
Stocks, bonds, and investments
Bank accounts
Personal property (vehicles, jewelry, etc.)

Settle Debts and Taxes

Pay any legitimate creditor claims and outstanding estate debts.
File the deceased’s final income tax return and pay any taxes owed.

Distribute Assets to Heirs

After debts and taxes are settled, the administrator distributes the remaining assets according to Texas intestacy laws.

Close the Estate

File a Final Accounting Report with the probate court.
Request court approval to close the estate.

Important Tip

Order multiple death certificates, as financial institutions and government agencies will require them for asset transfers.

Frequently Asked Questions

What Happens to a Bank Account When Someone Dies Without a Will in Texas?

The fate of a bank account depends on whether a Payable-on-Death (POD) beneficiary is listed:

With a POD designation: The account transfers directly to the named beneficiary upon presentation of a death certificate.
Without a POD designation: The account is frozen until the estate administrator presents Letters of Administration, allowing distribution under Texas intestate succession laws.

How Much Does Probate Cost Without a Will?

Probate costs vary depending on the estate’s size and complexity. Potential expenses include:

Court filing fees: $200–$400
Attorney fees: Hourly rates ($200–$600) or percentage of the estate
Accounting fees: Varies based on estate complexity
Appraisal fees: $500–$5,000 if asset valuations are needed
Bond (if required): Cost varies based on estate size

How Long Does Probate Take Without a Will?

The process typically takes 8–12 months, but can be delayed due to:

Finding an appropriate administrator
Court backlogs
Disputes over inheritance
Complicated assets requiring additional legal procedures

Need Help with Intestate Probate in Texas?

Settling an estate without a will can be complex and time-consuming. Seeking legal assistance can help ensure a smooth process and prevent costly mistakes.

Book a Free Consultation Today!

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