The information below about probate in Texas is provided in the spirit of public education and is not legal advice. You should consult one of the attorneys in our firm to discuss your specific situation.

FREQUENTLY ASKED QUESTIONS

What is probate?
In general, probate is a legal process by which ownership of a person’s assets is transferred to surviving family members or named beneficiaries and debts are paid. There are different types of probate in Texas. Which type of probate is used depends on many factors that include whether the person died with or without a Will, the value of the person’s assets, and the extent of the person’s debts.

Do I have to go through probate?
Usually yes, but not always. Assets like life insurance and retirement accounts may be transferred automatically by a valid beneficiary designation. Bank and investment accounts that are properly designated as accounts “with rights of survivorship” may be transferred automatically to the surviving account owner(s). Trust assets are often transferred according to the terms of the trust document. All other assets, however, may need to go through some type of probate in order to get ownership transferred. Probate may also be needed to pay debts and deal with creditors, including the IRS. A lawyer will likely need to help you decide if you have to go through probate and, if so, what type of probate you will need.

Do I need to get the death certificates before talking with an attorney
about probate?
No. You can consult with an attorney at any time about probate matters. Your lawyer may ask you for a death certificate when you get them, but you do not have to wait for them before you seek advice and help.

Does probate require a Will?
No. The probate process can be used whether there is a Will or not. If there is a Will, the attorney will need the original Will for probate. If the original cannot be found, a copy may be used in very limited circumstances.

How long do I have to probate a Will?
A Will should be probated within four years from the date of death. Usually, sooner is better than later. Many families have no need to start the probate process until weeks or even months after a loved one dies. If more than four years have passed since the date of death, you can still probate the Will if you meet certain criteria.

How long does probate take?
Typically, most probates can be completed within about 120 days. However, if there is a contest, many creditors, tax issues, or if a federal estate tax return is involved, the process will take much longer.

Are the assets “frozen” during probate?
Not usually for very long. Regardless of what type of probate you use, there is typically a hearing before a judge within about three weeks from the date the probate application is filed with the court. Usually at that hearing action is taken to make sure the appropriate people have immediate access to bank accounts and other assets. There are also emergency procedures that can be used in certain circumstances to get access to accounts even before the probate hearing. Remember that certain assets, like accounts “with rights of survivorship” and beneficiary designations, typically do not need to wait for probate.

Don’t I just automatically get everything when my spouse dies?
No, not necessarily. This gets complicated. You usually automatically get your joint accounts that have “rights of survivorship.” You also usually automatically get life insurance and retirement accounts if you were named the primary beneficiary by your spouse. If your spouse had a Will that left everything else to you, you usually have to go through probate in order to actually get everything else. If your spouse had no Will, then Texas law says who inherits your spouse’s property. The answer of who inherits what depends on whether the asset is community or separate property and whether your spouse had any children. You will need a lawyer to discuss this with you.

If I am named as Independent Executor in a Will, can’t I just deal
with things without probate?
No. An independent executor named in a Will has no powers unless and until the Will is admitted to probate and the executor qualifies and receives Letters Testamentary or, if applicable, Letters of Administration from the Court. Letters Testamentary and Letters of Administration are documents issued by the Clerk of the Court to a qualified executor and evidence the executor’s authority to act on behalf of and deal with the assets of the estate. Executors have many important duties and responsibilities and may, in certain circumstances, have to post a bond. You should consult with an attorney before agreeing to become an executor.

Where is the application for probate filed?
Probate is usually filed in the county in Texas where the person lived at the time of death. If the person did not live in Texas, then usually in the Texas county where the person’s property is located.

Is a Will signed in another state a valid Will in Texas?
Usually, yes. An attorney will have to look at the Will itself to make sure, but most states have similar Will requirements. Therefore, usually a Will prepared in a different state can still be probated in Texas.

How much does probate cost?
It varies. Of course, more complicated estates cost more than very simple estates. Our firm handles probate matters on an hourly basis. We have a team of experienced professionals with a wide range of hourly rates available to assist you through the probate process.

More questions? What to do now?
Contact our firm at 979-836-5664 to schedule an appointment to discuss your specific needs and questions with one of our attorneys. We will be happy to help you through each step of what to do and when and how to do it.