Detailed answer — When is probate required in Texas if there is no will?
Short answer: Not always. Whether you must open a probate estate in Texas after a person dies without a will (intestate) depends on what the decedent owned, how the assets are titled, and whether creditors or third parties require a court order to transfer property.
This answer explains the typical rules, common exceptions, and practical steps to take. This is not legal advice — see the disclaimer at the end.
Key concepts
- Probate is the court process that transfers a deceased person’s assets to heirs and resolves creditor claims.
- Intestate means the person died without a valid will. Texas intestacy rules decide who inherits.
- Nonprobate property passes outside probate — e.g., assets with payable-on-death (POD) or transfer-on-death (TOD) beneficiaries, life insurance proceeds with a named beneficiary, assets held in joint tenancy with right of survivorship, or assets owned in certain trusts.
When probate is generally required
In Texas, probate is usually required when the decedent owned assets titled only in their name that cannot be transferred without a court order. Examples:
- Real estate owned solely in the decedent’s name (a deed must be retitled).
- Bank or investment accounts that have no POD/TOD beneficiary or joint owner.
- Personal property for which a third party (bank, title company, or buyer) requires a court-appointed personal representative (executor/administrator) to clear title or distribute funds.
If the decedent’s assets consist solely of nonprobate property that carries a named beneficiary or survivorship title, probate may not be necessary.
When probate may not be necessary — common nonprobate paths
- Bank or brokerage accounts with a POD/TOD designation — the named beneficiary presents identification and the death certificate to receive funds.
- Life insurance and retirement plans that have designated beneficiaries.
- Accounts or property held jointly with right of survivorship — ownership typically passes automatically to the surviving joint owner.
- Small estate procedures or affidavits — in some situations, Texas law allows an heir or beneficiary to collect certain assets using an affidavit rather than full probate. (Third parties may still demand a court order if they distrust the affidavit.)
Intestate succession — who inherits when there is no will?
If you do need probate in Texas because there are probate assets, Texas law (intestate succession rules) decides the heirs — typically the surviving spouse, children, parents, or more remote relatives depending on the family situation. These rules define who receives the decedent’s probate property when there is no will. For the statutory rules, see the Texas Estates Code on intestate succession: Texas Estates Code — Intestate Succession and the main Estates Code index: Texas Statutes (statutes.capitol.texas.gov).
Types of probate in Texas
When probate is needed, Texas provides different procedures. Two common tracks:
- Independent administration (often quicker, less court supervision) — the court appoints an independent personal representative who manages and distributes the estate, but the court has limited ongoing oversight. Independent administration is typically available where heirs agree or statutory conditions are met.
- Dependent or formal administration (more court supervision) — used if heirs do not agree, there are disputes, complex assets, or significant creditor issues.
The choice affects timing, costs, and control. You can read the Estates Code and local probate rules or consult a probate attorney for specifics.
Practical examples (hypothetical facts)
Example 1: Jane dies owning a house titled solely in her name and a bank account with no beneficiary. Probate is likely required so a court-appointed administrator can retitle the house and close the account.
Example 2: Tom dies with a checking account that lists his sister as POD beneficiary and a life insurance policy with a named beneficiary. Those two assets can pass to beneficiaries outside probate, so you may avoid probate unless other probate assets exist.
Steps to determine whether you need probate
- Gather a list of all assets and how they are titled (deeds, account registrations, beneficiaries).
- Obtain the death certificate.
- Contact account holders and the county clerk’s office to learn their requirements for transfers.
- Ask whether a small‑estate affidavit or other summary procedure will work for any asset.
- If third parties require a court order or if there are significant assets or creditor issues, consult a probate attorney about opening an administration case in the appropriate Texas probate court.
Helpful hints
- Start by locating the decedent’s deed, bank statements, retirement account statements, and insurance policies — title and beneficiary designations decide a lot.
- Even when probate is not strictly required, some banks or title companies prefer court-appointed letters of administration; be prepared for that possibility.
- Small‑estate affidavits can simplify matters for modest personal-property distributions, but thresholds and rules can vary — verify current statutory limits and requirements.
- If heirs disagree about whether to open probate or how to divide property, open probate early to get the court involved before disputes escalate.
- Probate timelines vary. Informal or independent administrations may close in months; contested or complex estates can take much longer.
- Keep records of all communications with institutions, copies of the death certificate, and any affidavits or court papers you file.
- Consult a licensed Texas attorney if the estate includes real property, significant assets, business interests, unresolved debts, or family disputes.
Resources and statutes
Texas statutes and official resources (to review current statutory language and procedures):