Texas estate administration is the process of collecting the decedent’s assets, settling any debts, and distributing the assets to his or her heirs (if there is no will) or beneficiaries (if there is a will) under Texas law. Regardless of whether the decedent had a will, the estate will need to be administered unless it is so small that no action is required. Texas estate administration generally involves the following steps:
- The executor or administrator must collect the decedent’s assets;
- The executor or administrator must pay or otherwise settle any claims against the estate;
- The executor or administrator must pay all taxes from the estate assets;
- If the decedent died intestate, the executor or administrator must petition the court to determine his or her heirs under Texas law; and
- The executor or administrator must distribute the estate to the appropriate parties.
The person who handles the estate is referred to as an executor if the decedent had a will. If the decedent did not have a will, this person is referred to as an administrator.
How to Probate a Will in Texas
If the deceased person had a will, it will need to be probated with the court. Probate is the process of establishing the validity of the will in court. Under Texas law, probate should occur within four years from the date of the decedent’s death.
Although the Texas Probate Code does recognize handwritten (holographic) wills that meet certain requirements, the vast majority of wills are typewritten. To be valid, a typewritten will must meet the following requirements:
- The will must be signed by the testator or another person at his or her direction and in his or her presence;
- The will must be attested (witnessed) by two credible witnesses who are above the age of 14; and
- The will must be signed by the witnesses in the presence of the testator.
The “two witnesses” requirement is very important. It is also important that the witnesses not be individuals named to receive assets under the will.
A self-proved will includes a special form of notarized affidavit that contains certain evidentiary requirements. Most Texas wills that were prepared in recent years are self-proved. If the will is not self-proved, the Texas probate attorney must obtain the testimony of one of the attesting witnesses.
If the will cannot be proved in court, it will not be admitted to probate. In that case, the decedent will be treated as having died without a will.
Texas Intestate Law: Dying Without a Will in Texas
When someone dies without a will, that person is said to have died intestate. Intestate estates are distributed to a person’s heirs as determined by Texas law.
Because Texas is a community property state, the distribution of an intestate estate depends on whether the decedent was married. If so, the property is divided into two categories:
- Separate Property – All property that was owned before the marriage or acquired by gift or inheritance. Damages from personal injury lawsuits are also considered separate property unless they represent loss of earning capacity.
- Community Property – All property other than separate property that was acquired during the marriage.
Texas intestate law handles a person’s separate and community property differently, depending on the decedent’s marital and family situation.
Independent Administration in Texas
Texas has a simplified form of estate administration called independent administration. This type of administration is “independent” in the sense that it is mostly free of court supervision. Once the independent executor or administrator has been approved by the court and has filed a basic inventory, he or she may administer the remainder of the estate without further court involvement. Steps that may be taken without court supervision include:
- Paying debts and settling with creditors;
- Collecting and managing the property of the estate;
- Setting aside the exempt homestead and other exempt property;
- Selling assets to raise funds to pay debts or taxes;
- Distributing the estate to the appropriate parties.
The ability to take these actions without court supervision or involvement reduces the expense and time involved in a dependent administration, which requires court approval before taking these actions.
If the decedent had a will, the will may allow independent administration by including special language in the will approving independent administration. Even if the will does not explicitly allow independent administration, the court may approve independent administration if all of the beneficiaries named in the will agree to it. If the decedent did not have a will, the court may allow independent administration if all heirs agree.
Most Texas courts will allow independent administration if there is a basis for doing so. The decision, however, is ultimately discretionary. A court may deny the request for independent administration. If that happens, all actions taken by the executor or administrator must be approved by the court.
Texas Muniment of Title
Texas law allows a will to be admitted as muniment of title for the sole purpose of clearing title to real estate. No executor or administrator is appointed in a muniment of title proceeding. The will is simply admitted to probate as a substitute for a deed to real estate. A muniment of title proceeding is generally available only when there are no debts to be paid and no actions to be taken that would require the appointment of an executor or administrator.
Texas Small Estate Affidavit
A Texas Small Estate Affidavit may be used in lieu of probate if the decedent died without a will and value of the estate (excluding the homestead and any exempt personal property) does not exceed $50,000.00. All of the heirs must sign the affidavit, which states that they are entitled to receive the property. The Texas Small Estate Affidavit is only available if the estate is solvent (i.e., if the assets of the estate exceed the liabilities).
A Texas Small Estate Affidavit may be used to transfer a decedent’s homestead if it is the only property of the estate. If the estate includes real estate other than the homestead, the Small Estate Affidavit will not clear title to any of the decedent’s property (including the homestead).
Texas Homestead and Exempt Personal Property
Texas has liberal homestead laws that protect a decedent’s assets from the claims of creditors. For both families and single adults, an urban homestead can include up to 10 acres of land with improvements. A rural homestead includes up to 200 acres with improvements for a family or up to 100 acres with improvements for a single adult person. There is no limit to the value of the homestead that can be protected if it meets the acreage limitations.
Under Texas law, items of tangible personal property valued at up to $60,000 per family or $30,000 per single person are considered exempt personal property. There are some limitations on the specific items that will be included in exempt personal property.
Collection of Final Paycheck
If the only asset of the estate is a final paycheck owed to the decedent, the Texas Probate Code provides a simplified procedure to allow a surviving spouse to collect the final paycheck. This can be accomplished by filing an affidavit, as long as Texas probate or estate administration is not pending.
Informal Family Settlements
When the estate only includes assets that are not “titled” (things like personal household items and furnishings), Texas probate law allows families to informally divide the items among themselves. Informal family settlements are not allowed if the estate includes titled items like bank accounts, stock, or bonds.
Transfer of Automobiles Without Probate
If the decedent owned automobile or other motor vehicle, a new title can often be obtained by filing an affidavit of heirship with the county tax assessor’s office and requesting a new certificate of title.