Texas Probate Law Questions


Question: How long do you have to probate a will?

Answer: Generally, you have 4 years from the date of the Decedent’s death to file his or her Will for probate. Although a limited exception applies with the Muniment of Title form of probate, the general rule applies that you cannot file the Will more than 4 years after the death. If the Will is never filed and the 4 years lapses, then the Decedent is treated as having died without a Will, and the heirs determined under Texas law will be entitled to his or her assets. (Read about what happens if you die without a will in Texas.)

Question: Does a will have to be probated in Texas?

Answer: If the Deceased owned any real estate or other property (bank accounts, life insurance, cars, stocks, etc.) that did not have beneficiaries named by contract, then the Will of the Deceased will need to be probated in order to transfer title from those assets to the beneficiaries under the Will.

Question: Does a surviving spouse need probate in Texas?

Answer: The mere fact of being the surviving spouse of someone who died does not mean that you can automatically avoid the probate process.  For instance, under a traditional deed in Texas, a home does not automatically transfer to the surviving spouse on death.  Likewise, cars, stocks, and other assets do not automatically transfer to the surviving spouse.  If the Deceased owned any of these assets, then his surviving spouse will likely need to utilize the probate process.

Question: Are joint accounts subject to probate?

Answer: If joint accounts are established with "rights of survivorship," then they are not subject to probate.  However, the default rule in Texas says that joint accounts are not created with rights of survivorship unless the account holders specifically designate in the account paperwork when the account is created.  If no rights of survivorship are created, then the account is subject to probate.

Question: When is probate not necessary?

Answer: Probate is not necessary when the Deceased did not own any assets that require the probate process to transfer the assets from the Deceased to his intended beneficiaries or heirs.

Question: What happens if you do not probate a will?

Answer: If you do not probate a Will, then certain assets may not be property transferred and may stay in the name of the Deceased.  If that happens, then it will be impossible to sell those assets without doing something to transfer the ownership from the Deceased to the beneficiaries or heirs.  The easiest example is the title to a home.  If nothing is done to formally transfer the title from the Deceased to his heirs or beneficiaries, then nobody will be able to sell the home.

Question: Do you need a lawyer to probate a will?

Answer: Yes, in general, a lawyer is required to probate a Will. Anytime that a person is appointed as an executor of an estate, they are required to be represented by an attorney.

Question: How is property divided if someone does not have a Will?

Answer: If someone dies without leaving a proper Will, his assets will be divided and distributed to his heirs, as they are determined by Texas law. It is important to note that the “heirs” may not be the same people that the family might consider to be the heirs. Rather, the Estates Code lays out a very specific method for determine the identity of the Decedent’s heirs and also the shares of the Decedent’s estate that each heir is entitled to share.

Question: Is a handwritten Will valid?

Answer: In order for a handwritten will to be valid, it must be written completely in the handwriting of the Decedent. No portion of the Will can be written in the handwriting of another person. While the handwritten Will does not require the signature of witnesses, it does require the signature of the person making the Will, and it requires that the Will express the Decedent’s true intent as to the disposition of his estate.

Question: Are other family members liable for the Decedent's debts?

Answer: When someone dies, any creditors that he may have at the time of his death are entitled to recover their debt only against the assets owned by the Decedent at the time of his death. Other family members are not liable to have to pay any debts of the Decedent. If his assets are insufficient to pay all of the debts, any unpaid debts will simply have to be cancelled by the creditor.

Question: Who has a homestead right in the Decedent's home?

Answer: If the Decedent is survived by a spouse, his or her spouse has the absolute right to occupy the Decedent’s home for as long as the spouse is alive. Of course, if the home has a mortgage or other expenses, the spouse will be liable for those expenses. Likewise, a minor child living in the Decedent’s home at the time of death has the right to continue living in the home until they are no longer a minor. Also, an unmarried adult child of the Decedent who was living in the Decedent’s home at the time of death, has the right to live in the home.

Get Answers to Your Questions about Texas Probate Law


If you did not find the answer to your question above and you would like to discuss your matter with a Texas probate law attorney at Ford + Bergner, contact us. With offices in Houston, Dallas and Austin, we handle all types of probate issues for clients throughout the state.