The Texas Probate Code provides the law governing probate matters, including the making of wills, rules of inheritance without a will, administration of estates, establishment of heirs and appointment of guardians. Certain assets, for example community property or property held in joint tenancy, may be transferred without probate. Even when the transfer of assets does not require a formal procedure in probate court, however, the Probate Code provides the proper procedures for distribution.
You must be 18 years old, or a minor who is emancipated by reason of marriage or military service, and mentally competent to make a will in Texas. You may distribute all of your property by means of a will, but the will must be in writing and witnessed by two individualsat least 14 years old. If the will is written in your own handwriting, no witnesses are required.
If you die without a will, property is distributed by intestate succession. Your spouse is entitled to at least one-third of the property and the rest is divided among your children, or, if you have no children, other relatives. The property of an unmarried decedent passes to his children or their descendants. If there are no children or descendants, the law gives detailed directions for distributing the property among surviving relatives, beginning with the parents of the deceased.
Most wills are probated using an independent administration process. The court appoints an executor who is responsible for making an inventory, paying debts and taxes and distributing the remaining property. Alternatively, the will may be probated as a "muniment of title" if all estate debts have been paid and no administration is needed. This process authorizes the individuals identified in the will to transfer the property according to the terms of the will.
Determination of Heirs
If someone dies without a will or if some of the decedent's property is not distributed by probate and administration of the will, an heir may file a request with the probate court for a determination of who should receive the property. The court decides whether a formal administration process is required to pay the debts of the estate, identifies the heirs of the estate and determines each heir's rightful share of the property.
The Probate Code governs the appointment of guardians for minors and persons who are incapacitated. When you file for guardianship, you must provide the names of individuals who have an interest in the proceedings, including the proposed ward if she is 12 years old or older, parents and the spouse, if any, of the ward. The court hears evidence and must consider the best interests of the proposed ward in the appointment of a guardian.