The Probate Process in Texas When There is No Will

Probate is the process by which a will is proved to be valid, and more broadly, the process of administering a decedent’s estate, which means following the steps that involve the court; locating, collecting, and securing the decedent’s property; filing a decedent’s final tax return for the year of death; paying expenses, debts, and taxes of the estate; and ultimately distributing the estate to the beneficiaries or heirs.

However, many people die without having made a will, whatever the reason. Some believe they don’t have a large enough estate to consider making a will. Others think they don’t need a will because of a mistaken belief that their spouse or children will inherit everything by default. Many of us simply procrastinate, and this procrastination is surely compounded by the nature of the task, which requires contemplating death. Still, some people are willing to just let their heirs worry about it since they’ll be gone.

Regardless of the reason, when there is no will and there are assets that need to be transferred to heirs, in addition to the regular steps in probate, there are extra hoops to jump through. A person who has died may own a house, vehicle, or other titled assets that need to be transferred to an heir or heirs. Financial assets also may be part of a person’s estate and cannot be transferred to heirs without court authority. This is where probate comes in.

First, work with an attorney to determine the type of probate and who will be applying to be the representative—this is often the surviving spouse, an adult child, or another friend or relative. When there is no will, the heirs may agree to the appointment of one person as the independent administrator of the estate. But who are the heirs?

Texas law makes a will for you if you don’t have one, by dictating who your heirs are. The main factors include whether you are single or married, and if married, which of your assets are considered community property and which are separate property, and whether you have children or not and if so, whether they are also the children of your surviving spouse.

Your attorney will file an application asking the judge to appoint an administrator. When there is no will, a second application is also filed, asking the court to declare who the heirs are. Most judges deal with the two applications in back-to-back hearings. The heirship determination will also require another lawyer to be appointed as an attorney ad litem to represent unknown or incapacitated heirs. Depending on the decedent’s family tree, the fees for this additional attorney may cost several hundred to a few thousand dollars, and sometimes more.

The Texas Estates Code includes various deadlines that the administrator must meet. Estate administration in Texas is either independent or dependent. In a dependent administration, the person appointed as the administrator must obtain court authority for virtually every action, meaning many additional steps are involved in a dependent administration. See https://www.wrightabshire.com/publications/learn-the-probate-process-in-texas/ to read about the probate process in an independent administration.

The entire process will take a few months for straightforward cases, to years for complex cases or situations involving litigation. The very last step in the probate process is to distribute the estate to the decedent’s heirs.

You may visit our website at www.wrightabshire.com. Nothing contained in this publication should be considered as the rendering of legal advice to any person’s specific case but should be considered general information.