Under Texas law, an individual begins the probate process by filing the original will with the clerk of the court where the person who passed used to live. The original will is the document that the person who drafted the will signed. It is not a copy of the will. The original will may be a formal will, which is signed by the deceased as well as at least two witnesses, or a holographic, or handwritten, will that is entirely in the handwriting of the deceased. A holographic will is not required to have signatures from two witnesses.
The individual who starts the probate process must also file an application for probate with the probate court in the county where the person who passed lived. The deceased person is called the decedent. The person named in the will to distribute the estate is called the executor. If there is no will, the person whom the court appoints to distribute the estate is called the administrator.
The administrator is usually one of the primary heirs. It is typical for a probate court to require an executor or administrator to be represented by an attorney. The next steps include posting notice of the probate application, validating the will, determining the assets of the estate, identifying the beneficiaries, notifying the creditors, resolving disputes and distributing assets. The process of handling the estate is called administration.
Posting Notice of the Application for Probate Administration
After a party files to open a probate proceeding, the court waits approximately two weeks before scheduling a hearing on the probate application. During this waiting period, the county clerk posts a notice at the courthouse to inform the public that a probate application was filed. If the court receives no contests, it will start the administration of the estate. A Texas probate judge will then schedule a hearing to legally recognize the death of the decedent. In the proceeding, the judge will formally appoint the person named as the executor or administrator.
Inventory of Estate Assets
The executor or administrator has 90 days from being recognized by the court to catalog and inform the county clerk of all the assets held by the estate. The executor or administrator is required to create an inventory, appraisement and list of claims. The appraisement values the items in the estate. The list of claims determines what claims the creditors have against the estate.
If the estate does not owe any unpaid debts, aside from secured debts, or debts backed by collateral, taxes and administration expenses, the executor or administrator may file an affidavit in lieu of inventory with the county clerk.
Identification of Beneficiaries
The executor is responsible for notifying beneficiaries of the estate. If there was not a valid will, parties interested in the estate may file a proceeding to determine heirship. A secured creditor, a creditor who gave credit that the decedent backed with collateral or a qualified representative of the deceased may also file a proceeding to determine heirship.
Notification of Creditors
The executor or administrator is responsible for notifying the decedent’s creditors that the decedent has passed, and the creditors may file claims against the estate. An executor or administrator can accomplish giving notice by publishing a notice in the local newspaper. Bills usually include mortgages against real property, household expenses and the medical bills of the decedent.
Resolution of Disputes
When beneficiaries or loved ones contest a will or file grievances related to the administration of a will, this can delay the probate process. The state of Texas requires a party to contest a will within two years after an individual files the original will and probate application. A court typically requires a party who is contesting a will to be represented by an attorney. A person who contests a will must prove that the will is invalid.
A contesting party can show that the will is one of multiple wills that was executed or that the will was not executed correctly. One way for a formal will not to be executed correctly is to lack the signature of the testator, the party who made the will. After the executor or administrator has resolved all debts and disputes, they distribute the assets to the beneficiaries.
Cost of Probating a Will
The cost of probating a will depends on the county in which the will is filed. For example, in Tarrant County, the cost to probate a last will and testament is $256. In Harris County, the cost to probate a last will and testament is $308. The Texas probate court may charge additional fees for other types of actions, such as a $2 charge for administering an oath so an individual can swear to be an executor.
When a Will Isn’t Probated
According to the Texas Estates Code, the executor has four years from the date of the decedent to file for probate of the person's estate. If the executor does not file the will within that period, the laws of intestacy will determine how the assets of the estate will be distributed. If the executor does not file the will for probate or does not follow the directions of the testator, the person who drafted the will, the beneficiaries can sue the executor.
Small Estate Affidavit
When a decedent dies without a will, an executor or administrator can use a Small Estate Affidavit (SEA) to probate the estate. The intestate decedent must have left less than $75,000 worth of property, excluding the homestead where the decedent lived and any exempt property. The executor or administrator must also be able to locate all the heirs and have them sign the SEA. The filing fee for an SEA is typically the same as the filing fee for a will.
Electronic Filing Requirements
A court can mandate that attorneys electronically file court documents in probate courts. A party or their attorney should check the regulations for their local court to properly file required documents.
In order to file documents electronically, a party must select an electronic filing service provider (EFSP). A party can find an EFSP at EFileTexas.gov. There are fees for electronic filing, per case or per envelope. The fees vary depending on the EFSP.
When a document like a probate application has been accepted for filing by the county clerk, the filer receives a “confirmation page” that the document has been accepted. If the document is rejected, the filer receives an alert that the document was not accepted, and the reason why. The confirmations come through EFileTexas.gov or the EFSP.
Filing Original Wills with the Court
Original wills are the only document that is exempted from electronic filing. A party who is filing for probate has to file all other documents electronically. They should submit the actual paper copy of the original will to the court.
A party must file the original will with the county clerk within a certain deadline after the probate application has been filed. In Harris County, a party must file the original will within three days of filing a probate application electronically with an EFSP, as outlined above. In addition, a party who is filing for probate should typically file a copy of the will as an attachment to the probate application when they electronically file.
- Texas Estates Code: Chapter 256, Probate of Wills Generally
- Tarrant County, Texas: FAQs (Frequently Asked Questions)
- Tarrant County, Texas: Tarrant County Probate Cost List
- Harris County, Texas: Probate Courts
- Texas Estates Code: Chapter 205, Small Estate Affidavit
- EFileTexas.Gov: Civil and Criminal E-Filing Mandated in Texas
- Bexar County, Texas: Probate Courts, Probate a Will
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.