Texas Estate Planning & Probate FAQs

Probate in Texas refers to the legal process by which a deceased person's assets and estate are administered and distributed after their death. The primary objective of probate in Texas, as in most other states, is to ensure that the deceased person's debts and taxes are paid and that their remaining assets are distributed to the rightful beneficiaries or heirs.

In the State of Texas, the probate process is relatively quick in straightforward cases, the probate process can take 2 to 4 months to receive the Letters Testamentary. However, if the estate is complex or the will is contested, it can take longer. The inability to locate the decedent's original will can also cause delays.

An application to probate a will must be filed within four years of the decedent’s death. If an estate is not completed within 15 months, the executor or administrator can be ordered to provide an accounting of all estate assets, debts, and expenses; and has 60 days to provide that accounting.

When a person passes away without a will (intestate), probate will be overseen by the courts. The courts will make the official Determination of Heirship, identifying who the decedent's heirs are and their respective shares of the decedent's estate.

The courts will also appoint an administrator for the estate, who will act in the same capacity as a named executor and is responsible for fulfilling the same probate duties, including notifying creditors, submitting an inventory report to the County Clerk, and settling the estate.

It is common for people to die with outstanding debts, such as mortgages, medical bills, credit card debts, and personal loans. In the probate process, creditors are notified and have an opportunity to file claims against the estate. The executor or administrator of the estate will be responsible for paying these creditor claims using assets from the estate.

No, not every estate is subject to probate in Texas. Small estates, valued at $75,000 or less, do not have to go through the probate process. In these cases, heirs can choose to file a Small Estate Affidavit. Additionally, not all property is subject to probate. For example, jointly held property and life insurance policies and financial institution accounts with a named beneficiary do not have to go through the probate process.

A durable power of attorney is a written document that is generally used to make plans for the care of the finances, investments, and property of the principal in the event the principal is still living, but is no longer able to handle their financial affairs. It applies only to financial matters and can be helpful to older adults who want and need a trusted person to act on their behalf.

The powers that can be granted to the agent are as follows, but can be restricted by the principal:

• Real property transactions;
• Tangible personal property transactions;
• Stock and bond transactions;
• Commodity and options transactions;
• Banking and other financial institution transactions;
• Business operating transactions;
• Insurance and annuity transactions;
• Estate, trust, and other beneficiary transactions;
• Claims and litigation;
• Personal and family maintenance;
• Benefits from social security, Medicare, Medicaid, or other governmental programs or civil or military service;
• Retirement plan transactions;
• Tax matters

Who Can Be My Agent?

Your agent can be anyone you trust implicitly to act in your best interest. It could be an adult family member, an adult friend, or even a professional fiduciary if there is no individual you can rely on.

By granting this power of attorney, you can avoid the need for a court-appointed guardian to manage your affairs if you become incapacitated. But because your agent will have significant powers, it is important to select someone who you trust implicitly to act in your best interests as your agent, such as a spouse, family member, or close friend.

What is the duration of a durable power of attorney?

It is called “durable” because it does not terminate if you become disabled or incapacitated; and does not lapse because of the passage of time unless it specifically states a time limit.

However, a power of attorney will expire when you die. After your death, your agent will no longer have the power to act on your behalf.

A Texas medical power of attorney is a document that allows you, the principal, to designate a trusted family member or friend to make medical decisions for you if you become unconscious or mentally incapable of making those decisions for yourself.

The person you designate to make medical decisions for you is called an agent. The medical power of attorney gives your agent broad power to make any health care decisions you could have made if you were not incapacitated, unless you specifically restrict his or her authority.

Medical powers of attorney are not just for the elderly. Unexpected injuries or illness can occur at any age, so all adults should have one in place.

Letters Testamentary, similar to Letters of Administration, is a probate Court-issued document that authorizes a person to act as an Executor or Administrator of an estate. This Court Order gives the executor the authority to distribute the estate appropriately pursuant to the decedent’s wishes. Letters Testamentary are issued by the Court when there is a valid Will. Letters of Administration are issued by the Court when there is NO Will or if there is a Will, but it has a defect in it. Letters of Administration provide similar authority as Letters Testamentary. Letters Testamentary is basically a Court order blessing the Executor to handle the business of the deceased.