Texas Probate Laws
Texas Probate Will Trust Laws
Question: What does the term probate mean?
Answer: Probate is a court proceeding that relates to a decedent’s estate. Texas Estates Code section 22.029. It is the court procedure to prove a person’s Last Will and Testament as valid or invalid. When there is no will, there are court procedures available to administer the estate of the person who has died.
Question: Is there a time limit to probate a will?
Answer: Any will must be offered for probate within four years of the date of death, with very strict exceptions. However, it is almost always a good idea to probate the will earlier rather than later.
Question: Does a will have to be probated?
Answer: Technically, the Texas Estates Code contemplates someone aware of a will to probate it. However, as a practical matter you should review the circumstances to determine if a different approach is possible or even desirable.
Question: Is there a time limit to contest a will?
Answer: The will must be contested within two years of the date it was admitted to probate, with some exceptions. Texas Estates Code section 256.204.
Question: When and how can a probate estate be distributed to the heirs?
Answer: The Texas Estates Code allows twelve months to pass from the time of the original grant of letters testamentary before any distributee may petition the court for distribution of the entire estate. Texas Estates Code section 360.001. However, an heir or distributee, or the executor may request partial distribution of any portion of the estate any time after the inventory has been filed and approved by the court. Texas Estates Code section 360.002.
Usually, the executor has ninety days from the time granted letters testamentary, unless this period is extended by the court, to file an inventory of the estate. Texas Estates Code section 309.051. Then the court takes varying amounts of time to review it, and not much can happen until the court has approved of the inventory by written order.
Question: Can an executor be removed?
Answer: Yes, under certain circumstances an executor may be removed if the personal representative has “misapplied, embezzled or removed from the state, or is about to misapply, embezzle, or remove from the state” property of the estate. Texas Estates Code section 361.052(1). There are other grounds listed in the code that we should review. For example, if the executor fails to timely file the required inventory of the property of the estate. Texas Estates Code section 361.052(2).
Question: What if my relative died without a will?
Answer: You may need to file an application for the probate of the estate, and ask for an heirship determination. This is necessary because your relative had no will naming his heirs. This means you may have to undergo a dependent administration. As you can see, this gets a bit complicated.
Question: What are the homestead rights of a surviving spouse in a house?
Answer: As a surviving spouse, you would have a homestead right to remain in the house as long as you please, as long as you maintain the taxes, mortgage payments, and payments on construction improvements. Texas Estates Code section 102.004.
Question: What is the timeline for an executor or personal representative to file a probate inventory?
Answer: Usually, the executor has ninety days from the time letters testamentary were granted, unless this period is extended by the court, to file an inventory of the estate. Texas Estates Code section 309.051. Then the court takes varying amounts of time to review it, and not much can happen until the court has approved of the inventory by written order.
Question: What documents will a title company require to pass title to my deceased relative’s real estate?
Answer: In your situation, the title company will require more than the death certificate to transfer title to the heirs, or to sell the property to a third party. They are concerned with the dependability of the chain of title on the real estate. The title company will want to see documents establishing the identity of the heirs of the estate. Sometimes they will accept affidavits of heirship, if the circumstances are simple. Otherwise, the title company will require a letter testamentary (granted to the executor named in a will) an order admitting the will as a muniment of title only, or an order from the probate court identifying the heirs of the deceased.
Question: May an out of state person be named as executor in a Texas probate?
Answer: The short answer is yes, an out of state person may be appointed as executor of a Texas will in probate. However, the executor would then have to name a resident agent in Texas, for service of process. Attorneys that work on estates generally perform the role as the resident agent for estates that need one.
Question: What is the timeframe to contest a will and what are the grounds?
Answer: A will must be contested within two years of the date it was admitted to probate, with some exceptions. Texas Estates Code section 256.204. A will may be contested on the grounds that 1) the testator did not have the capacity to make the will, or 2) undue influence was used on the testator to induce the execution of the will in its present form. Both of these are challenging and expensive cases to litigate.
Question: Where is a will probated?
Answer: A will must be probated in a county that has jurisdiction and venue over the matter. A will must be probated in the county where the deceased resided, if he had a domicile or a fixed place of residence in Texas. Texas Estates Code section 33.001. If the deceased person had no such domicile or fixed place of residence, but died here, then probate of his will would be appropriate in the county where the decedent’s principal property is located, or in the county where he died. Texas Estates Code section 33.001.
There are other provisions in case your scenario does not fit within the above circumstances.
Question: How long do I have to probate a will?
Answer: Wills, under most circumstances, must be filed for probate within four years from the date of death. There are other factors that may need to be considered.
Question: When can the will be filed as a Muniment of Title?
Answer: Filing a will as a muniment of title only is appropriate if the only asset to transfer is real estate, and there are no unpaid debts owed by the estate, except for liens on real estate. Texas Estates Code section 257.001. Essentially, this publishes the will for purposes of transferring the real estate to the named beneficiaries in the will. A court hearing is necessary to present the will for probate as a Muniment of Title.