Do You Have to Probate a Will in Texas?

Estate, Trust & Fiduciary Litigation | Langley & Banack | San Antonio, Texas

When a loved one dies and leaves a will, one of the first questions families ask is whether they have to go through probate at all. The answer depends on what the person owned and how it was titled. Below, Langley & Banack shareholders Chris Hodge and Jobe Jackson explain what probate does, when it is required in Texas, how long you have, and what happens when there is no will.

On this page

• What does probate mean in Texas?
• Do you have to probate a will in Texas?
• When do you need to go through probate in Texas?
• How long do you have to probate a will in Texas?
• Can you still probate a will years after death in Texas?
• What happens if someone dies without a will in Texas?

What does probate mean in Texas?

Probate is the court process that passes legal title to a deceased person’s property to the people who are supposed to receive it. For assets that are titled, like a house, land, minerals, a car, or a bank account, someone has to be appointed by the court and given the authority to transfer them.

A will is used to dispose of the person’s property, to say how it is going to pass when they die. There are certain types of assets that are titled, for instance a house or land, minerals, a car, or a bank account. If you need to pass title on those, you are going to need to go through the probate process with the probate court to pass title to whoever is to receive it under the last will and testament.

Do you have to probate a will in Texas?

Not always. Whether you have to probate a will depends on the assets in the estate. If there is titled property that has to be transferred, like a house or a car, you generally have to probate the will, because no one else has the authority to transfer valid title.

Say your grandmother passed away and you knew she wanted to give her car to your brother. Without probating that will, you are not going to be able to transfer that car over, because your grandmother was the rightful owner of the car or the house, and there is nobody who can transfer valid title to those assets without the court having appointed them and invested them with that authority.

When do you need to go through probate in Texas?

You need probate when there is titled property that has to be transferred and does not already pass another way. Accounts with a survivorship feature or a pay-on-death designation, and assets like life insurance, generally pass outside of probate, so those alone may not require it.

A lot of it comes down to knowing the status of the accounts. Do the accounts have a survivorship feature or a pay-on-death feature on them? If they do not, then yes, you will have to go through the probate process and have someone appointed as independent executor or administrator to pass those accounts along to the beneficiaries or heirs. If a bank account has a survivorship agreement, it passes outside of probate. When anyone goes to the bank and signs an application to create an account, there are various boxes they can check that effectively take those accounts outside the probate process. The same idea applies to life insurance, annuities, and other financial accounts, which can pass outside the probate estate through the beneficiary designation.

How long do you have to probate a will in Texas?

In Texas, you generally have four years from the date of death to probate a will. It is usually better to start sooner, because bills, final tax returns, and other matters need someone with legal authority to handle them.

Texas law provides that you have four years from the date of someone’s death to probate that will, so you can do it as quickly as possible or take up to four years if it takes a while to find it. In general, it is good to go ahead and get the process started, because there is a house, there are bills that need to be paid, there are final tax returns that need to be filed, and without having the will probated, you do not have anybody vested with the authority to do those things and wrap up the last business matters of the person who passed away.

One thing we tell people is not to get rid of a will, ever. Typically in Texas, estates stay open and are not formally closed, because there may be assets out there that nobody knows about, like mineral interests in some random county in Texas. In order to transfer title to those later, you are going to need that will, even years down the road.

Can you still probate a will years after death in Texas?

Sometimes, yes. You can offer a will for probate even years after death, as long as you were not “in default” for waiting. Courts have read that to mean you did not just sit on the will, and that once you located it, you acted promptly to get it probated.

Say it is five or six years after someone passed away and you finally find the will. Can you still offer it for probate? Yes. The Estates Code provides a way to do that, as long as the applicant, the person offering the will, is not in default for not having offered it sooner. The courts have construed being in default to mean, basically, that you did not just sit on it. You could not find it, you could not locate it, but once you did, you acted as prudently as possible to get it probated as quickly as possible.

What happens if someone dies without a will in Texas?

If there is no will, the estate passes under Texas intestate succession. That is a framework set up by the Texas Legislature to distribute a person’s property when they die without a valid will.

If you cannot find a will, you are going to be left with what is called intestacy, which is a process set up by the Texas Legislature to distribute the person’s property according to a framework the Legislature has laid out. Which assets are affected still depends on how everything was titled, since accounts and policies that pass by survivorship or beneficiary designation move outside that process.