The first steps to take for probate in Texas

What to know about initiating probate in Texas courts

• There are three different types of probate in Texas, and the vast majority of estates qualify for an expedited process.

• Estates with an estimated value less than $75,000 may be eligible to file a small estate affidavit to bypass much of the probate process.

• Texas does not allow out-of-state executors, and some counties require you to have a lawyer during certain steps in the probate process.

• Once you are ready to initiate probate, there are four different kinds of probate courts—make sure to check which one has jurisdiction in your county.

• Texas requires a probate bond, also known as an executor bond or fiduciary bond, for all executors and administrators.

Settling an estate in Texas can be simpler than many other states because state law offers several options for probate, ranging from 30 days to six months—and if the estate is below a certain threshold (currently $75,000), you may be able to skip most of the process.

While disputes over the will or other complexities can extend probate for many months beyond that, probate in Texas is usually a straightforward process once you know two things: what kind of probate you want to pursue, and which court should handle your loved one’s estate.

The 3 kinds of probate in Texas

You’ll need to choose one of these processes when you start probate: muniment of title, independent administration, or dependent administration.

Muniment of title, the fastest probate option, can be completed in 30 days. You can pursue this if your loved one died without any debts. As long as you have a valid will and all the necessary ownership documents (for example, deeds to property), the transfer of the estate to beneficiaries can be completed quickly.

With independent administration, you can minimize the involvement of the courts, as long as all beneficiaries agree to it. (In some cases, people request independent administration in their will, laying the groundwork for an easier process for their heirs.)

Independent administration is not as quick as muniment of title, but it is an expedited probate process that estates carrying debt can pursue. It is by far the most popular option in the state, with 80 percent of Texas estates using this form of probate.

With dependent administration, the court is involved every step of the way—most commonly because someone decides to contest the will, there is no will, or because of other complexities with the estate. This process may also be called full probate, as the court oversees everything.

The estate’s executor generally has four years from the date of the death to file for probate, and if the executor does not file the will within that time, the state’s laws for estate with no will (known as intestate law) determine how the estate will be distributed.

A quicker option for small estates

If your loved one died without a will and left less than $75,000 in property, you may be able to file a small estate affidavit to transfer property to their heirs, as long as you meet all of the requirements set out in the Texas Estates Code Chapter 205.

Some of the important requirements include:

• The estate’s assets are worth more than its debts.

• All of the heirs are willing to sign the affidavit.

• The property was your loved one’s home residence, and it will be inherited other household members, such as a surviving spouse or children.

The 4 types of courts that handle probate in Texas

Initiating probate in the right court in your county is key. If you begin in the wrong jurisdiction you will have to start over, which can add months to your timeline.

All probate cases in Texas start with the personal representative filing an application, generally in the county court where the person lived or owned property, within the first two months to one year of the death.

There are four different types of courts in Texas that can handle probate cases: statutory probate court, county court at law, constitutional county court, and district court. Each county has its own regulations and fee schedules.

Generally, if your loved one’s county has a statutory probate court, you’ll file there. The most populous counties all have statutory probate courts.

If your loved one lived in Houston, Dallas, Austin, Fort Worth, San Antonio, El Paso, Galveston, or McAllen, for instance, there is a statutory probate court in their county. In addition, suburban Collin County and Denton County have statutory probate courts.In more rural counties in which judges must handle a wider variety of cases with fewer resources, there may not be a statutory probate court.

In this case, you’ll need to initiate probate with a different court. Check with the county clerk in the county or counties where you believe your probate should be administered.

Most likely, though, without a statutory probate court, you’ll initiate probate in the county court at law. In rural areas where there is neither a statutory probate court nor a county court at law, the constitutional county courts may hear probate cases.

In rare instances, district courts may consider probate proceedings. In some counties, the county court may have concurrent jurisdiction with the constitutional county court at law. In other counties, the county court at law may have concurrent jurisdiction with the district court. 

Again, the best course of action is checking with the county clerk before you begin. It’s extremely important to start the probate process in the correct jurisdiction because any cases filed in the incorrect court are generally thrown out even if you’ve completed all the steps.

The probate application

After identifying the right probate court, the next step is filing the application. It’s important to note that the executor or administrator must be a Texas resident or have a resident agen.

In addition, certain courts do not allow non-lawyers to file probate applications or represent an estate in court. Check with the county clerk to confirm whether you need to be represented by an attorney.

Finally, keep in mind that many forms are not available online. Contact the clerk of your county’s probate court to get an application form. If you are working with an attorney, they can handle this for you.

The application requires information such as:

• The will and all codicils. (If there was no will, you’ll need to file a request for heirship proceeding, a court procedure that declares the identities the heirs.)

• Assets owned at the time of death and their fair market value.

• Person’s family relationships (i.e., marital status, children, etc.) and heirs and their interests in the estate.

• Name and contact information for the personal representative.

• What type of probate process you are requesting and why.

Common probate costs  

Even though probate costs can vary, there are a few fees common to most proceedings. Filing court costs usually start at about $400, and you’ll likely have to pay some or all of the following:

• A probate bond, also known as an executor bond or fiduciary bond, which is required of all executors and administrators. It is normally calculated as a percentage of each $100,000 of estate value. For instance, 0.5% would be $500 per $100,000. For estates valued below $100,000, the bond is typically $100-$400.

• Filing fees. For independent administration, for example, you would pay fees on each of these documents: Independent Executor & Muniment of Title, Small Estate Affidavit, Foreign Will, Letters of Administration Only.

• Additional filing fees. For dependent administration, additional documents include Letters of Administration with Determination of Heirship, Determination of Heirship, Application to Declare Heirship & Application for Guardianships.

• Administrative fees, such as document copies, certified copies, and safekeeping of the will. 

• Attorney fees.

Navigating unfamiliar procedures while you are dealing with grief and difficulty family matters can be daunting, even when the process is clear and relatively simple. Remember, the first step is the most difficult. Getting started and getting the help you need right away—whether that’s an attorney, an accountant, an appraiser, or all three—is key to achieving successful outcome later ●