Navigating Probate in Texas: Common Challenges and Essential Steps

Probating an estate in Texas can be a complex process, especially when there is no will or a poorly drafted will. It is hard enough to work through the grieving process without the added need to organize your loved one’s affairs, but most of the time, it is a necessary evil indeed.

Understanding when to probate an estate and how to navigate the process can ease the family’s stress and allow for a smoother transition into healing. 

Here are some of the common issues that arise when probating estates in Texas:

As a general matter, an estate must be probated

1. Where property with a title is present
2. If there are lingering debts or taxes due by the deceased or
3. If there are lingering disputes surrounding the deceased’s estate, including, but not limited to, disputes amongst the heirs or claims the deceased had against third parties before their death.

While the presence of a will is a good reason to probate an estate, if the estate has no property to pass through the will, the existence of a will alone should not be the reason an estate is probated. 

Additionally, suppose an estate consists of exclusively non-probate assets, such as life insurance policies, retirement accounts, and jointly held property. In that case, the assets may pass directly to the named beneficiaries and do not require the probate process.

Once it is determined that the estate must be probated, a will (ideally the original) must be located or the estate is considered intestate and a path through intestate succession must be forged. We will start here with the presumption that a will has been located. An applicant seeking to probate an estate is generally seeking to be appointed as the “Executor” or “Administrator” of the estate depending on the contents of the will (if any). 

An applicant cannot be a convicted felon nor can they be legally incapacitated. A nonresident can apply but must have a resident agent appointed to accept service of process.

A preliminary  issue in probating an estate is determining the validity of the will. As a general matter, a will must meet specific legal requirements to be considered valid in Texas:

• The will must be in writing.
• The testator (person who made the will) must have signed the will.
• Ideally, the will has been notarized and witnessed by at least two disinterested witnesses who are at least 14 years old although this is not a requirement for a will to be valid.

Once an applicant has determined that the will they found is valid, they can apply to probate the will within the appropriate probate court (where applicable). 

Heirs and beneficiaries may contest the will if they believe it is invalid, unfair, or a product of undue influence or fraud. Contested wills can lead to lengthy and expensive litigation, further complicating the probate process.

Identifying and Locating Heirs

Identifying and locating all potential heirs can be challenging, especially in cases where the family structure is complex or estranged. An applicant must locate all heirs and potential beneficiaries because they have to be given notice of the proceedings to probate the will.  Or, in the event there is no will and an applicant is pursing the probate of an intestate estate, a determination of heirship has to be made and all potential beneficiaries will have to be notified and given a chance to participate in the process. Often times this phase of the probate process can become tedious if an heir has left the country, does not get along with the other heirs, or is otherwise difficult to locate. It is a necessary step and cannot be be skipped.

Debts and Creditors

Before distributing assets to beneficiaries, all debts and obligations of the estate must be settled. Once a person is appointed as a representative of an estate, all potential creditors are given notice through the public filing of a notice to creditors. Creditors then have a specific period to file claims against the estate or their claims are waived. Added expense on the estate can occur where disputes arise over the validity of claims, and the estate may not have sufficient assets to cover all debts. Accordingly, when contemplating the administration of an estate, an applicant has to do the best they can to be aware of all potential claimants may come to deplete the estate’s assets.

The applicant, once appointed executor or administrator, has the responsibility to manage the estate, which includes:

• Inventorying and appraising assets
• Paying debts and taxes
• Distributing assets to beneficiaries

The person appointed to serve in this role is a fiduciary and owes a fiduciary duty to the estate so it is important to become very aware with the role of executor/administrator and all the responsibilities associated therewith. Issues can arise if the executor is unfamiliar with their duties, acts in bad faith, or is perceived as mismanaging the estate. Executors must act in the best interest of the estate and beneficiaries, and they can be held liable for breaches of fiduciary duty.

Probating an estate in Texas requires careful navigation of various legal and personal issues. Engaging a knowledgeable probate attorney can help mitigate these challenges, ensuring a smoother and more efficient probate process. Understanding the common issues and preparing for potential disputes can help executors and beneficiaries achieve a fair and timely resolution.

Back