Probate in Common Form in Texas: What It Means and How It Works

Quick answer: In Texas, “probate in common form” is the routine process a probate court uses to admit a decedent’s will and appoint a personal representative when there is no immediate, active dispute over the will’s validity. It is faster and simpler than a contested (solemn) probate, but it does not produce a final, unchallengeable judgment on the will’s validity. If someone believes the will is invalid, they can later challenge it in court.

Detailed answer — How probate in common form works in Texas

Probate in common form is the default way many wills are admitted to probate in Texas courts. The basic idea: an interested person files papers with the probate court, presents the original will and evidence that it was properly executed, and the court admits the will and issues letters testamentary or letters of administration. That permits the personal representative to manage the estate and distribute assets under the will.

Who can start probate in common form?

An interested person—typically the person nominated as executor in the will, a beneficiary, or an heir—can file a probate application in the county probate court or statutory probate court that has jurisdiction.

Typical steps in the common-form probate process

1. File an application for probate and present the original will to the court.
2. Provide basic supporting evidence — commonly the testimony or an affidavit of an attesting witness or other proof that the will was properly executed and the decedent had capacity and signed voluntarily.
3. Show the court that notice requirements have been met (courts usually require notice to heirs or others who may be interested).
4. If the judge is satisfied, the court admits the will “in common form” and issues letters testamentary (or letters of administration if there is no valid will or no executor named).

Why choose common-form probate?

Advantages:

• Speed and cost: Common-form probate is typically faster and less expensive than a solemn, fully contested probate hearing.
• Practical access to assets: The appointed representative can begin collecting assets, paying debts, and administering the estate promptly.

Important limitation — common form is not final on validity

Probating a will in common form does not produce an indefeasible judgment that the will is valid. Under Texas practice, the admission of a will in common form is prima facie evidence of its validity and gives the representative authority to act, but an interested person may later file a contest (a separate lawsuit) to attack the will’s validity. If someone wants a fully conclusive determination, they may seek a solemn-form probate or pursue a will-contest with full proof, subpoenas, and cross-examination.

When courts use solemn form instead

If a party timely files a contest (or a party specifically requests a contested proceeding), the court can proceed to a solemn probate or a trial on the will contest. Solemn probate (or a contested trial) resolves the will’s validity after full evidence and is the route to a final, binding judgment.

Example (hypothetical)

Mary dies leaving an original signed will naming her daughter as executor. The daughter files an application for probate in common form, submits the original will, and attaches an affidavit from one attesting witness swearing the will was signed in the witness’s presence. The court admits the will in common form and issues letters testamentary. Two months later, a sibling disputes the will and files a contest alleging undue influence. That contest may proceed despite the common-form admission; the sibling seeks a full hearing (solemn form) to try to overturn the will.

Practical considerations and statutory resources

Texas law and local court rules govern the details of filing, notice, and proof. For general Texas probate information see the Texas Judicial Branch probate resource page: https://www.txcourts.gov/programs-services/probate/. For statutes and specific code provisions, see the Texas Estates Code available at the Texas statutes website: https://statutes.capitol.texas.gov/?link=ES. These pages will direct you to statutory sections on proving and admitting wills, the duties of personal representatives, and probate procedures.

When to consider hiring an attorney

Consider getting an attorney if:

• Multiple heirs or beneficiaries disagree about the will or administration.
• There are allegations of undue influence, lack of capacity, fraud, or improper execution.
• Estate assets are complex (business interests, out-of-state property, substantial creditors).
• You need help interpreting deadlines, notice requirements, or how to protect the estate while disputes proceed.

Helpful Hints

• Preserve the original will. Don’t let anyone alter it. Provide it to the probate court with your filing.
• Get several certified copies of the death certificate early. Courts and financial institutions commonly require them.
• Gather asset and debt documentation (bank statements, titles, mortgage info, account info) before filing.
• Identify and notify potential interested persons (heirs, beneficiaries) as soon as practicable—courts often require notice.
• If the will has attesting witnesses, get their contact info and, if possible, a signed affidavit describing their witnessing of the will.
• If you expect a dispute, consult an attorney quickly—advising early can preserve rights and help meet court deadlines.
• Remember: admitting a will in common form lets the representative act now but does not prevent later challenges seeking to overturn the will.

Key reminder: Every probate is fact-specific. Local court practices, the presence or absence of witnesses, and the identities of interested persons affect the right path to take.

Disclaimer

This article explains general information about probate in common form in Texas. It is not legal advice, does not create an attorney-client relationship, and it may not address all legal issues or deadlines that apply to your situation. For advice about a particular probate matter, consult a licensed Texas attorney who handles probate and estate administration.