Texas Application for Probate

Introduction

Key Things to Know

1. 1

   Filing: an application for probate of will and for letters testamentary (or an application for letters of administration), filed with the county court, county court at law or statutory probate court in the county where the decedent lived (Estates Code §§32.002, 33.001, 256.051(b)). Texas calls it an application. No statewide official form is named on this page, so ask the court clerk what the court requires; the court's requirements control.

2. 2

   No one has authority over estate assets until the court appoints a personal representative and letters issue. Being named as executor in a will does not by itself allow anyone to collect assets, pay debts or transfer property. Do not distribute, pay heirs or sell estate property before appointment or before the claims process runs.

3. 3

   A will generally may not be admitted to probate after the fourth anniversary of the testator's death unless the applicant proves they were not in default in failing to present it, and an application for letters must generally be filed within four years of death (Estates Code §§256.003(a), 301.002(a)). The person holding the will must deliver it to the clerk of the court that has jurisdiction of the estate on learning of the death, with no day count stated (§252.201(a)).

4. 4

   The court grants letters in statutory order, beginning with the person named as executor in the will, then an administrator designated under §254.006, a surviving spouse, principal devisee, any devisee and next of kin, among others (Estates Code §304.001(a)). A nonresident individual or corporation is not qualified unless a resident agent for service of process on estate matters is appointed and the appointment is filed with the court (§304.003(a)(3)). The court decides who serves and appointment is not guaranteed.

5. 5

   Notice: on an application to probate a will, the clerk issues citation to all parties interested in the estate, served by posting at the courthouse for at least 10 days before the return day (Estates Code §§258.001, 51.053(b)). Citation and notice rules for an application for letters of administration on intestacy are not covered here, so ask the court clerk. After a will is admitted, the personal representative must notify each beneficiary named in the will whose identity and address are known, within 60 days of the order (§308.002). If a will is offered after four years, each heir whose address can be found with reasonable diligence must be served first (§258.051).

6. 6

   Creditors: within one month after receiving letters, the personal representative must publish notice requiring claims to be presented, and within two months must notify known secured creditors (Estates Code §§308.051(a), 308.053). Permissive notice to an unsecured creditor must state the claim is barred unless presented before the 121st day after the creditor receives the notice (§308.054(b)). Otherwise claims may be presented any time before the estate is closed if not barred by limitations (§355.001).

7. 7

   Bond is required before letters issue, with the oath and bond fileable up to the 21st day after the order granting letters (Estates Code §§305.101(a), 305.004). A named executor may serve without bond if the will directs it and the court finds the person qualified, and a corporate fiduciary needs none (§305.101(b), (c)). Not every estate needs probate: Texas has muniment of title for a will, independent administration under Chapter 401, and a small estate affidavit route covered on DocDraft's small-estate-affidavit page.

Texas Requirements for Petition for Probate

• Application, Not Petition

  Texas calls the filing an application for probate of will and for letters testamentary, or an application for letters of administration. One combined application may seek both probate and appointment (Tex. Estates Code §256.051(b)).

• County or Probate Court Where Decedent Lived

  The application goes to the county court, county court at law or statutory probate court in the county where the decedent lived (Tex. Estates Code §§32.002, 33.001).

• Four-Year Limit to Offer the Will

  A will may not be admitted after the fourth anniversary of death unless the applicant was not in default, and an application for letters must generally be filed within four years of death (Tex. Estates Code §§256.003(a), 301.002(a)).

• Application Contents

  The application lists the applicant and testator names and domicile, the last three digits of the driver's license and Social Security number, the date of the will, the executor's name and service address, and the subscribing witnesses (Tex. Estates Code §256.052).

• Order of Priority for Letters

  The court grants letters in statutory order, starting with the executor named in the will, then an administrator designated under §254.006, a surviving spouse, principal devisee, any devisee and next of kin (Tex. Estates Code §304.001(a)).

• Nonresident Needs a Resident Agent

  A nonresident individual or corporation is not qualified unless a resident agent for service of process is appointed and filed with the court (Tex. Estates Code §304.003(a)(3)).

• Citation and Beneficiary Notice

  On an application to probate a will, the clerk issues citation by posting at least 10 days before the return day. After probate the representative notifies known beneficiaries within 60 days of the order (Tex. Estates Code §§258.001, 51.053(b), 308.002).

• Creditor Notice After Letters

  Within one month after letters, the representative publishes notice for claims and sends it to the comptroller if state taxes were owed. Known secured creditors are notified within two months (Tex. Estates Code §§308.051(a), 308.053).

• Bond Before Letters Issue

  A bond is required before letters issue unless the will directs none for the named executor and the court finds that person qualified, or the representative is a corporate fiduciary. The oath and bond may be filed up to the 21st day after the order (Tex. Estates Code §§305.101, 305.004).