How Probate Works in Texas

File an application to probate the will (generally within four years of death) or for letters of administration in the court with probate jurisdiction; the court admits the will and issues letters; within one month after letters, publish notice to creditors (and send it to the Comptroller if the decedent owed state-administered taxes) and, within two months, notify secured creditors; file a verified inventory, appraisement and list of claims before the 91st day after qualifying (an independent executor may file an affidavit in lieu of inventory in some cases); pay claims and distribute; close the estate.

Options include: (1) probate of a will as a muniment of title, when the estate owes no unpaid debts other than debts secured by real estate liens, or administration is otherwise unnecessary; (2) independent administration, created by the will or by agreement of all distributees, which limits court supervision; (3) summary proceedings for small estates when, after the inventory is filed, the estate (excluding homestead, exempt property and family allowance) does not exceed the amount needed to pay Class 1-4 claims; and (4) the small estate affidavit for intestate estates of $75,000 or less.

Claims may generally be presented any time before the estate is closed if not barred by the general statutes of limitation. A personal representative may send an unsecured creditor a notice requiring the claim to be presented before the 121st day after the creditor receives the notice, or the claim is barred. Secured creditors must specify how their claim is to be treated within the later of six months after letters are granted or four months after receiving the required secured-creditor notice.

Letters go first to the executor named in the will, then (in order) to the surviving spouse, principal devisee, other devisees, next of kin, creditors and others. Disqualified: incapacitated persons, unpardoned felons (unless named in the will and approved by the court), a nonresident who has not appointed a resident agent for service of process and filed that appointment with the court, corporations not authorized to act as fiduciaries in Texas, and persons the court finds unsuitable. A bond is generally required unless the will waives it (and the court finds the executor qualified) or the representative is a corporate fiduciary.

Available only when the decedent died without a will. At least 30 days must have passed since death, no petition for a personal representative may be pending or granted, and estate assets (excluding homestead and exempt property) must not exceed $75,000 and must exceed known debts. The affidavit is sworn to by two disinterested witnesses and each distributee with legal capacity, lists all known assets and debts and the family history, is filed with the court clerk, and must be approved by the judge. It does not transfer real estate, except that a homestead that is the only real property may pass if the approved affidavit is recorded in the county deed records.

Probate jurisdiction depends on the county: in a county with a statutory probate court, that court has exclusive jurisdiction of all probate proceedings; otherwise the constitutional county court (and any county court at law exercising probate jurisdiction) hears them (Tex. Est. Code 32.002, 32.005). The county clerk keeps the "Judge's Probate Docket" recording each estate, its executor or administrator, filing dates and every order, plus a claim docket for each estate (Tex. Est. Code 52.001, 52.002). To find a probate case or will, contact the county clerk in the county where the estate was filed.