In the state of Texas, an individual can find a probated will online or in person by searching court records after the probate administration process has begun. This typically occurs after the decedent – the person who passed property on to others – dies, and the executor – the person named in the will to distribute assets in the estate – files an application for probate.
A will becomes public record when the court receives it. The probate process does not need to be completed for an individual to find a will.
Information Needed to Locate Will
The court may ask for certain information to look up a will or other documents in a probate case, including:
- Case number.
- First name and last name of the deceased person.
- Court number. (A county may have multiple courts, depending on population.)
- Setting date from when case first came to court and date of last proceeding.
- Session type, such as heirship or probate.
An individual may be able to access the will online or in person at the courthouse. The court may charge a fee for a copy of the will. Typically, after a probate case has closed, documents relating to the case may remain with the original court (court that heard the case).
They will have the same docket number, or identifying number, assigned to them by the court as they did when the case was active.
Retrieving Closed Cases
If a new matter arises that relates to the closed case, the court clerk will retrieve the closed files and maintain them with the new matter until the new matter is closed.
Transferring to a Different Jurisdiction
If there are multiple probate courts in a county, and a case needs to be transferred to a different court, the attorney or the party representing themselves without an attorney, should obtain the agreement of the judge of the court from which the transfer is sought and the court to which the case will be transferred.
A case may be transferred from one court to another for various reasons, such as the original probate judge being a beneficiary of the decedent.
Requirement to Deliver a Will
A person with custody of a will – the person who physically has a copy of the will or the right to access it – is required to deliver the will to the clerk of court with jurisdiction over the decedent’s estate. The person who has created a will is called the testator.
A person has four years from the date of the testator’s death to file an application for probate. This is an application for the will to be submitted to the probate court and for the testator’s estate to be distributed.
Basic Steps of the Probate Process
The basic steps of the probate process, in order, include:
- File the will and an application for probate with the probate court in the county where the testator lived. If the decedent left no will, the appropriate party, usually a loved one, should submit an application for determination of heirship.
- Allow the two-week waiting period to pass. During this time, the county clerk posts notice at the courthouse that an application for probate has been filed. This serves as notice to any party that wants to contest the will.
- Once the court has probated the will, a person can contest it for up to two years after it was admitted to probate. If no party files a contest, the probate court proceeds with a hearing to recognize the validity of the will.
- The probate court holds a hearing to validate the will. In the proceeding, the judge recognizes that the decedent has died, appoints an administrator to distribute the estate if there is no will, or verifies the executor named in the will.
- The executor or administrator has 90 days to submit an inventory of the decedent’s assets to the county clerk. The inventory includes items of personal property, real property, appraisals, and claims or debts owed to the estate.
- An independent executor is a person who submits the inventory if the decedent died without a will or the will states the executor should be independent. An independent executor may submit an affidavit in lieu of inventory rather than a standard inventory.
- Such a document provides evidence that all debts, except for secured debts, taxes and administration expenses have been paid. Further, it provides that the named beneficiaries who will receive property under the will have received the inventory and appraisal.
- If there is a valid will, the executor or administrator must notify the beneficiaries of the estate. The court determines which parties are heirs if the decedent did not create a valid will.
- The estate must resolve debts. The executor or administrator starts the process by notifying creditors that the decedent has passed. The creditors can then file claims against the estate. An executor typically provides notice by posting in a local newspaper. If a party contests the will, the court must resolve this dispute before finalizing the distribution of assets.
- After all disputes are settled, outstanding debts are resolved and expenses are paid, the beneficiaries receive the remaining assets in the estate.
- The probate court closes the case.
Costs to Probate a Will in Texas
The costs to probate a will under Texas law depends on the county. For example, in Jefferson County, the fee for probate of a will is $321. This includes the fee for one posted citation; each additional citation is $70. The fee for determination of heirship is $895. A court holds a hearing on a determination of heirship if the decedent left no will.
Value of Estate Assets for Probate
Typically, an estate must be worth over $75,000 to go to a proceeding in Texas probate court. An estate worth $75,000 or less can go through a simplified probate proceeding termed a small estate affidavit. An estate is eligible to go through this proceeding if the decedent did not leave a will and:
- 30 days have passed since the decedent died.
- No party has submitted a petition for the appointment of a personal representative, such as an executor and none has been granted.
- Value of estate, excluding decedent’s homestead (real property where they lived) and exempt property does not exceed $75,000.
- Party has filed an affidavit that meets the requirements of Texas Estates Code Section 205.002 relating to the Small Estate Affidavit with the clerk of court with jurisdiction (power to hear) and venue (correct place to hear) the case.
- Judge approves the affidavit.
- Distributees (term used in place of beneficiaries) comply with Texas Estates Code Section 205.004.
The distributees’ compliance under this statute means that they must provide a copy of the affidavit certified by the court clerk to each person who owes money to the estate; has custody or possession of estate property; and acts as a registrar, fiduciary or transfer agent for an interest owed on a debt, property or other right belonging to the estate.
A registrar is the person who filed the document registering the interest, indebtedness, property or other right with the county clerk. A fiduciary is a person who acts on behalf of another and has a duty to put the other party’s interest ahead of their own. A transfer agent is a bank or lender who records a change in ownership.
Basic Rules for a Texas Probate
There are multiple probate rules in Texas, which collectively are found in the Texas Estates Code. Generally, probate rules include:
- Individual does not need an attorney to go through the probate process.
- Executor files for probate.
- Executor has four years from the date of the decedent’s death to file for probate.
- If there is no will or the will is invalid, Texas' laws on intestacy govern distribution of the estate.
A person with questions about how to draft a will should contact an estates and trust attorney with experience in estate planning.
Non-probate Assets Distributed Differently
A non-probate asset is property like a bank account, IRA, 401(k) or insurance policy. It awards the monies or property in the account or policy to a beneficiary based on the language of the account or policy. Non-probate assets are distributed outside of probate court.
Contesting a Will in Texas
A party may need a copy of the will in order to file a will contest. Reasons to file a will contest include:
- Concern that testator was not of sound mind when they signed the will.
- There was fraud or forgery with regard to the will. An example of fraud is if the beneficiary requested that the testator sign a bill for a home repair, but the document was actually a will. An example of forgery is if the beneficiary forged the testator’s signature on a will.
- Will was not properly prepared or executed.
- Someone exerted undue influence over the testator.
Undue influence means a party with more power puts pressure on a party with less power in order to achieve a goal. When a will is involved, undue influence can involve a beneficiary putting pressure on the testator to include them in the will or give them more property.
For example, a beneficiary who had been delivering a testator’s medicine might tell the testator they would no longer do so unless the testator included them in the will.
Steps to Contest a Texas Will
The basic steps of contesting a will, in order, are:
- Review no-contest clauses. A provision in the will may state that a person who files a contest will receive nothing if their claim is unsuccessful. The party contesting the will should consider whether this clause makes it unreasonable for them to contest the will.
- File a motion to contest the will.
- Collect evidence for a hearing. Evidence should show why the will submitted to the probate court was not valid. If the party has another copy of an earlier will that they believe was valid, they should submit it to the court as evidence.
- Attend the hearing on the will contest.
- File an appeal if unsuccessful.
Local Rules of the Court
Each probate court has its own procedural and administrative local rules. A party in a proceeding must follow these rules in order to successfully submit motions such as a motion to contest a will.
In Harris County, Texas, a motion must be accompanied by a proposed order to grant the relief sought. The proposed order is a separate document that should be attached to the back of the motion.
A party who files a response to a motion must do so in writing and submit a proposed written order with the response. Similarly, this should be a separate document attached to the back of the response.
Providing Notice of a Motion
A party should submit a motion with notice to other parties at least 10 days before the submission date. For example, a party who wants to contest a will should provide notice to other parties of the contest 10 days before they file the motion to contest.
A party opposing the motion to contest a will should file their response at least three days before the contesting party’s submission date, except on leave of court (with the court’s permission).
- Texas Estates Code: Title 2 Estates of Decedent, Chapter 252 Safekeeping and Custody of Wills
- Bexar County, Texas: Probate a will
- Jefferson County, Texas: Probate Fees Effective 1/1/20189
- Texas Estates Code: Title 2 Estates of Decedents, Chapter 205 Small Estate Affidavit
- Harris County Clerk, Texas: Document Search Portal, Probate Court Settings
- Harris County Clerk's Office, Texas: Probate Courts
- Probate Courts of Harris County, Texas: Local Rules of the Probate Courts
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.