Frequently Asked Questions

 While Texas allows some simple estates to be handled without an attorney, many courts require an executor to hire legal counsel, especially when: ✔ The estate includes real estate, debt, or multiple heirs. ✔ There are disputes among heirs or beneficiaries. ✔ The will is contested. ✔ The estate requires dependent administration (court oversight).

Certain Texas counties, including Dallas, Harris, and Travis, require executors to have a lawyer.

 Texas offers three primary probate options:

1. Independent Administration (Most Common)

• Allows the executor to manage the estate without court supervision.
• Faster and less expensive than other probate methods.
• Requires consent from all heirs or a will authorizing independent administration.

2. Dependent Administration (Court-Supervised Probate)

• Requires court approval for every financial action.
• Used when heirs disagree or when creditors challenge the estate.
• More costly and time-consuming but provides greater legal oversight.

3. Muniment of Title (Simplified Probate)

• Used when a valid will exists and no debts (except mortgages) are present.
• No executor is appointed—the court order directly transfers property titles to heirs.

 If an estate is valued above $75,000, it usually requires full probate.

However, estates under $75,000 (excluding homestead property and exempt assets) may qualify for a Small Estate Affidavit, which allows heirs to claim assets without full probate.

 Not all wills require probate, but a will must be probated to transfer legal ownership of assets if: ✔ The deceased owned real estate solely in their name. ✔ Bank accounts and assets had no designated beneficiaries. ✔ The estate contains assets that require formal transfer of title.

If a will is not probated within 4 years, Texas law assumes the estate should be distributed under intestate succession (as if no will existed).

 The average probate timeline in Texas is 6 months to 1 year, but it varies based on complexity: ✔ Simple Estates (Muniment of Title, Small Estate Affidavit): 30-60 days ✔ Uncontested Probate with Independent Administration: 3-6 months ✔ Contested Probate or Estates with Debt: 9 months to several years

 The average probate timeline in Texas is 6 months to 1 year, but it varies based on complexity: ✔ Simple Estates (Muniment of Title, Small Estate Affidavit): 30-60 days ✔ Uncontested Probate with Independent Administration: 3-6 months ✔ Contested Probate or Estates with Debt: 9 months to several years

 Failing to probate a will within 4 years means: ✔ The estate follows Texas intestacy laws, possibly overriding the deceased’s wishes. ✔ The surviving spouse may receive less than expected, especially if children from another marriage exist. ✔ Property transfers may require court action, increasing legal costs and delays.

 While Texas allows some simple estates to be handled without an attorney, many courts require an executor to hire legal counsel, especially when: ✔ The estate includes real estate, debt, or multiple heirs. ✔ There are disputes among heirs or beneficiaries. ✔ The will is contested. ✔ The estate requires dependent administration (court oversight).

Certain Texas counties, including Dallas, Harris, and Travis, require executors to have a lawyer.

You may need court approval unless the will allows the executor to sell.

You may need court approval unless the will allows the executor to sell.

Probate is the legal process of administering a deceased person’s estate, ensuring debts are settled and assets are distributed according to their will (or state law if there is no will).

Key Steps in the Probate Process:

1. Filing the Will (if one exists) with the probate court.
2. Appointment of an Executor or Administrator to manage the estate.
3. Notifying creditors and heirs.
4. Inventorying and appraising assets.
5. Paying debts, taxes, and legal fees.
6. Distributing remaining assets to heirs.

Texas offers alternatives such as independent administration and muniment of title for simpler cases.

Texas law provides three main types of probate:

1. Independent Administration

• The most common probate method.
• Executor manages estate without continuous court supervision.
• Requires the will to allow independent administration or consent from all heirs.

2. Court-Supervised Dependent Administration

• Used when heirs disagree or creditors challenge claims.
• Every action requires court approval, making it time-consuming and expensive.
• Provides added legal protection when disputes arise.

3. Muniment of Title

• A streamlined process used when a valid will exists and no debts (other than real estate liens) are present.
• No executor is appointed—the court directly transfers property to beneficiaries.

Estates valued at over $75,000 (excluding homestead and exempt assets) must go through probate.

If the estate is valued under $75,000 and there is no will, a Small Estate Affidavit may be used to transfer assets without full probate.

Not all wills require probate, but in most cases, a will must be probated to legally transfer property. According to Texas Estates Code Sec. 256.001, a will has no legal effect until admitted to probate.

When Probate Is Required:

• If the deceased owned real estate or financial accounts solely in their name.
• If beneficiaries need legal authority to claim assets.

When Probate Is Not Required:

• If all assets are held in joint tenancy with right of survivorship.
• If assets have designated beneficiaries (life insurance, 401(k), POD bank accounts).
• If a Transfer on Death Deed was used for real estate.

On average, probate takes 3 to 6 months, but complex cases can take a year or more.

Texas Probate Timeline:

Delays can occur if disputes arise, assets are difficult to locate, or creditors file claims.

Failing to probate a will within four years of the decedent’s death means the estate defaults to Texas intestate succession laws. This could lead to unexpected inheritance outcomes:

• A surviving spouse may inherit less than expected.
• Stepchildren or non-immediate family members could inherit assets.
• Property may require legal action to transfer ownership.

While not legally required for all probate cases, most Texas courts require executors to hire an attorney to avoid the unauthorized practice of law.

Exceptions Where a Lawyer May Not Be Required:

• Muniment of Title (if no debts exist).
• Small Estate Affidavit (for estates under $75,000).
• Affidavit of Heirship (for transferring real estate when no will exists).

Step 1: File for Probate

• Submit an Application for Probate to the county clerk where the deceased lived.
• A waiting period of two weeks follows for objections.

Step 2: Appointment of Executor or Administrator

• The court appoints an executor (if a will exists) or administrator (if no will exists).
• The person receives Letters Testamentary or Letters of Administration.

Step 3: Inventory and Appraisal of Assets

• The executor compiles a list of all assets and debts.
• Must be filed with the court within 90 days.

Step 4: Pay Debts and Taxes

• Valid creditor claims must be settled.
• Final income tax return must be filed.

Step 5: Distribute Assets & Close the Estate

• Once debts are paid, remaining assets are distributed to heirs.
• The court approves the final estate accounting and closes probate.

Choosing the right probate process depends on the estate’s complexity, debts, and whether disputes exist.

1. Locating All Estate Assets

• Executors may struggle to find bank accounts, investments, real estate, and personal property.
• Pro tip: Do not shred documents immediately—hidden assets can surface.

2. Dealing with Creditors and Taxes

• Executors must ensure debts and taxes are properly handled.
• Estates may require separate tax returns (one for the deceased, one for the estate).

3. Handling Disputes Among Heirs

• Family conflicts can delay probate and lead to costly legal battles.
• Having a clear estate plan reduces disagreements.