⸺ On this page
1. What probate is, and when you need it
2. The five Texas procedures
3. The four-year deadline
4. Step by step
5. The executor’s deadline calendar
6. What it costs and how long it takes
7. If there is no will
8. Common mistakes
9. Frequently asked questions
What probate is, and when you need it
Probate governs probate assets — property titled in the decedent’s name alone with no automatic transfer built in. A great deal of property is not in that category, which is why the first question is never “how do we probate” but “do we have to.”
| Asset | Through probate? |
| Life insurance, 401(k), IRA with a living named beneficiary | No — passes by designation |
| Payable-on-death or transfer-on-death accounts | No |
| Property held with a valid right of survivorship | No |
| Real property with a recorded lady bird or TOD deed | No |
| Assets properly titled in a funded living trust | No |
| House in the decedent’s name alone | Usually yes |
| Bank account in the decedent’s name alone, no POD | Yes |
| Vehicles, mineral interests, personal property | Usually |
Texas does not presume survivorship. Two names on a deed does not mean the survivor automatically takes the whole thing. In Texas a right of survivorship must be created by written agreement or express language. Without it, the decedent’s undivided interest passes through their estate.
The five Texas procedures
Texas gives families options most states do not. Picking the right one is most of what a probate lawyer actually does for you.
| Procedure | Use it when | Court | Cost |
| Muniment of Title | Valid will, no unpaid debt except liens on real estate | One hearing | Lowest |
| Small Estate Affidavit | No will, assets ≤ $75,000 excluding homestead and exempt property, 30 days since death | Affidavit approved by judge | Low |
| Affidavit of Heirship | Establishing heirs for real property, outside court | None — recorded | Low |
| Independent Administration | Most estates with a will naming an independent executor, or where all heirs agree | Appointment, then minimal | Moderate |
| Dependent Administration | Heirs disagree, estate is insolvent, or oversight is needed | Continuous | Highest |
A judicial determination of heirship under Chapter 202 is often paired with an administration where there is no will.
The most underused option in Texas. Muniment of title. Section 257.001 requires that the estate owe no unpaid debt other than debt secured by a lien on real estate — so a mortgage does not disqualify you. Credit card balances do. For a family with a will and a house, this is frequently the whole answer, in one hearing.
The four-year deadline
Texas Estates Code § 256.003
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 earlier. Even where late admission is permitted, § 256.003(b) provides that letters testamentary may not be issued unless the application was filed within the four-year period.
This is missed constantly, usually by a family that saw no urgency because nobody needed to sell the house yet.
What happens if you miss it: the will generally cannot be used to transfer property in the ordinary way, and the estate is handled under the intestacy statutes instead. If your father’s will left everything to your mother and the application is filed in year five, the outcome can be that his children own a share of the house alongside her.
Other things that get worse with time. Witnesses for an heirship die. Heirs die and add their own heirs to the problem — a clean three-way split becomes eleven people across four states. One heir sells their undivided interest to an investor who can then force a partition. Property taxes compound toward a tax sale.
Step by step
01
File and post
The application is filed in the county where the decedent was domiciled. The clerk posts it for the statutory period before the court can hear it.
02
Hearing and letters
A short hearing proves the will and appoints the executor. Letters testamentary issue — the document banks and title companies want to see.
03
Administer and close
Notices, inventory or affidavit in lieu, debts paid in statutory order, then distribution with signed receipts.
What to gather before the first meeting
- Theoriginalwill, not a copy. Texas courts strongly prefer the original; probating a copy requires additional proof.
- A certified death certificate.
- A rough asset list — real property addresses, accounts, vehicles, insurance, retirement plans, mineral interests.
- A rough debt list — mortgage, credit cards, medical bills, taxes.
- Names and addresses of the spouse, children, and other likely heirs.
- Any deed to real property, especially a lady bird or transfer on death deed.
Where to file
Venue follows the decedent’s domicile — where they actually lived — not where they died and not where the property is. Someone who spent their final months in a Houston hospital but lived in Montgomery County files in Montgomery County. Harris County has five statutory probate courts; see our Harris County guide.
The executor's deadline calendar
These are statutory and they run from the date you qualify, not from when you feel ready.
| When | What’s due | Authority |
| Within 1 month of letters | Publish notice to creditors in a newspaper of general circulation in the county | § 308.051 |
| Within 2 months of letters | Notice to each known secured creditor by qualified delivery method | § 308.053 |
| Within 60 days of the order admitting the will | Notice to each beneficiary named in the will, with statutory exceptions | § 308.002 |
| Before the 91st day after qualifying | Inventory, appraisement and list of claims — or an affidavit in lieu | §§ 309.051, 309.056 |
| Optional, any time | Permissive notice to an unsecured creditor; claim barred if not presented within 121 days of receipt | § 308.054 |
| Within 180 days of a muniment order | Affidavit stating which terms of the will have been fulfilled | § 257.103 |
Two provisions worth asking about. The affidavit in lieu of inventory (§ 309.056) lets an independent executor keep the estate’s asset list out of the public record where there are no unpaid debts other than secured debts, taxes, and administration expenses. And the 121-day permissive notice (§ 308.054) lets you start a clock that bars an unsecured claim if it is not presented in time — useful when old debts are uncertain.
Full detail on executor and administrator duties, including fiduciary standards and how representatives become personally liable.
What it costs and how long it takes
| Procedure | Typical timeline | Relative cost |
| Muniment of title | Weeks | Lowest |
| Small estate affidavit | Weeks | Low |
| Affidavit of heirship | Days to weeks | Low |
| Independent administration | 6 months – 1 year | Moderate |
| Determination of heirship | Months | Higher — attorney ad litem required |
| Dependent administration | Often over a year | Highest |
| Contested matter | A year or more | Highest |
What drives the timeline in an ordinary case is not the judge — it is the statutory creditor notice periods. What drives cost is which procedure you qualify for and whether anyone is fighting.
Costs separate from attorney’s fees include court filing fees, citation and publication, certified copies, recording fees, appraisals, attorney ad litem fees in an heirship, and bond premiums in a dependent administration.
If there is no will
The Estates Code writes one for you, and it uses rules that surprise nearly everyone.
Community property (§ 201.003)
- All your surviving children are also your spouse’s children → your half passes to your spouse.
- You have any child who is not your spouse’s child → your half passes to your children, not your spouse.
Separate property (§ 201.002)
- Spouse and children → spouse takes one-third of separate personal property and a life estate in one-third of separate land; the remainder to the children.
- Spouse, no children → spouse takes all separate personal property and half the land outright, with the other half passing to parents and siblings unless there are none.
Unmarried partners inherit nothing. Stepchildren who were never adopted inherit nothing. And intestacy cannot nominate a guardian for minor children — only a will does that. Full detail on dying without a will.
Family settlement agreements. Adult heirs with capacity who all agree can redistribute an estate among themselves by written agreement, and Texas courts generally honor them. When the statutory result is one nobody wants, this is frequently the fix.
Common mistakes
- Waiting. The four-year deadline, disappearing witnesses, multiplying heirs. Nothing about this improves with time.
- Distributing before creditors are handled. The fastest route to personal liability for an executor.
- Using the wrong procedure. A small estate affidavit cannot transfer non-homestead real property no matter how small the estate is.
- Assuming a will avoids probate. A will is the instruction manual for probate, not a way around it.
- Assuming a new will revokes a TOD deed. Estates Code § 114.057(b) says it cannot.
- Letting insurance lapse on estate property, or leaving a house vacant and uncovered.
- Filing in the wrong county — venue follows domicile.
- Not telling the lawyer about the other child. An heir nobody mentions is still an heir, and discovering them after distribution is far worse.
Frequently asked questions
What is probate in Texas?
Probate is the court process that transfers a deceased person’s property to the people entitled to it and settles what the estate owes. Texas probate is unusually efficient because the state allows independent administration under Estates Code Chapter 401, where the court appoints the executor and then largely steps back — no court approval for each sale, no annual accountings in most cases.
How long do you have to file probate in Texas?
Generally four years from the date of death (Texas Estates Code § 256.003). After that a will normally cannot be admitted unless the applicant proves they were not in default in failing to present it sooner, and § 256.003(b) prevents letters testamentary from issuing unless the application was filed within the four years. Past the deadline, the estate is generally handled under the intestacy statutes instead of the will.
How much does probate cost in Texas?
Far less than in most states, because independent administration removes the repeated court contact that drives cost elsewhere. A simple uncontested independent administration or muniment of title is a fraction of what supervised probate costs in California or Florida. Cost rises with a dependent administration, an heirship proceeding with an attorney ad litem, or a contest. Court filing fees, citation and publication costs, and certified copies are separate from attorney’s fees.
How long does probate take in Texas?
A straightforward independent administration commonly runs six months to a year — driven mostly by the statutory creditor notice periods rather than the court’s calendar. A muniment of title can finish in weeks. Dependent administrations and contested matters take considerably longer.
Does every estate have to go through probate?
No. Property passing by beneficiary designation, right of survivorship, a recorded transfer on death or lady bird deed, or a funded trust passes outside probate entirely. And several Texas procedures settle an estate with no administration at all — muniment of title, a small estate affidavit, or an affidavit of heirship. Whether you need probate depends on how the assets were titled.
Can you probate a will without a lawyer in Texas?
In practice, no, for most matters. An executor or administrator represents the interests of the estate and its beneficiaries rather than only themselves, so Texas courts generally require an attorney — a non-lawyer attempting it is treated as the unauthorized practice of law. A distributee filing a small estate affidavit for their own interest is the usual exception.
What happens if someone dies without a will in Texas?
The Estates Code decides who inherits. The rule that surprises people most: under § 201.003, if the decedent has any child who is not also the surviving spouse’s child, the decedent’s one-half interest in the community estate passes to the children rather than to the spouse. Separate property is divided too — the spouse takes one-third of separate personal property and a life estate in one-third of separate land where there are children.
Are the deceased person's debts inherited by the family?
Generally no. Debts are paid from estate assets, not from the family’s own money, unless someone co-signed or is otherwise independently liable. What matters is order: a personal representative who distributes to beneficiaries before valid creditor claims are handled can be held personally liable for the shortfall.
Written and reviewed by Jireh Davis, J.D., MBA
Attorney and mediator at J. Davis Law & Mediation. Licensed in Texas. Practice focused on estate planning, probate, and business law for families and owners across Harris, Fort Bend, Montgomery, Tarrant, and Dallas Counties.
Last reviewed: September 2026 · Citations are to the Texas Estates Code, Texas Property Code, and federal law as noted.
Related pages
Muniment of Title
The one-hearing shortcut, explained in full.
Executor Duties
Every deadline and every way a representative gets personally liable.
Harris County Probate Court
All five courts, venue rules, and what happens at the hearing.