Texas Probate Law

Contested Probate in Texas

A contested probate matter is a probate case where interested parties disagree, and the court has to resolve the dispute instead of simply administering the estate. This section covers five contested matters.

• Will contests challenge the validity of a will over undue influence, lack of capacity, fraud, or improper execution.
• Contested guardianships arise when parties disagree over whether a guardian is needed or who should serve, sometimes involving guardian fraud or breach of fiduciary duty.
• Trust litigation covers claims against a trustee for mismanaging or stealing trust assets.
• Family settlement agreements resolve a dispute through negotiated compromise instead of full litigation.
• Probate mediation resolves disputes outside the courtroom through a structured, often mandatory process.

Uncontested matters work differently. Everyone agrees, and the estate moves through probate without a fight, through steps like probating a will, proving heirship, and guardianship applications.

Texas Contested Guardianship

A guardianship becomes contested when the proposed ward, family members, or other interested parties disagree about whether a guardian is needed or who should serve. Under Texas Estates Code Chapter 1051, interested persons must be cited and given the opportunity to appear and contest a guardianship application. These disputes often involve allegations of guardian fraud, negligence, or breach of fiduciary duty.

What is a contested guardianship?

An application for guardianship is not always uncontested. Sometimes the proposed ward does not feel a guardianship is necessary, and sometimes the proposed ward is correct. Family members more interested in an inheritance than in a ward's best interest can sometimes seek to take a person's money and freedom through a guardianship. In these instances, it is important to hire an experienced Texas contested guardianship attorney to represent the proposed ward and advise them on how to fight an unnecessary guardianship.

In other situations, an inappropriate guardian may be more interested in their own benefit than in the ward's best interests. Here, a family member of the proposed ward can often step in to contest who the ward's guardian will be, to ensure the ward's best interests come first. It is also important in these instances to hire an experienced Texas contested guardianship attorney to represent the ward's interests and prevent an unfit guardian from being appointed.

Texas Guardian Fraud, Negligent Guardian, and Breach of Fiduciary Duty Lawsuits

Under Texas law, a guardian of an estate has a duty to make accurate accountings of the money spent for a ward's benefit. Failure to provide mandatory guardian accountings can lead to legal trouble for any guardian, including a breach of fiduciary duty lawsuit. Failing to spend a ward's money for the ward's benefit, losing money through risky investments, or making unapproved sales of the ward's property can also create legal exposure for the guardian.

In determining whether a guardian is doing their job, Texas courts look at the original accounting, all annual accountings, and the final accounting, including all supporting financial documents. Guardians have a duty to make these accountings and can face serious liability if they do not.

Guardians who commit fraud or negligently lose or destroy estate assets can be held responsible under Texas law for wrongful acts. If you are a beneficiary or heir of an estate, or a person who has recently become competent to handle your own estate, and a guardian has negligently lost or intentionally stolen estate property, it is important to hire a Texas negligent or fraudulent guardian lawyer who can help seek compensation for the theft or negligence.

Drive-By Guardianships and the Race to the Courthouse

A proceeding for the appointment of a guardian for the person or estate, or both, of an incapacitated person must be brought 1) in the county where the proposed ward resides, 2) in the county where the proposed ward is located on the date the application is filed, or 3) in the county where the proposed ward's principal estate is located. If more than one county qualifies, the county where the first application is filed controls. Combined with option 2 above, this creates situations where a family member brings the proposed ward for a visit for the purpose of filing in a local court. This can be convenient, but it can also create races to the courthouse among family members.

Texas Family Settlement Agreements

A family settlement agreement lets heirs and beneficiaries resolve a probate dispute through compromise instead of litigation. An experienced probate attorney can draft the agreement to protect everyone involved.

Often, when a potential issue arises in a probate matter, it is a wise course of action for the potential heirs and beneficiaries to work together and reach a compromise. In these situations, it is often a good idea to have an experienced probate attorney draft a probate family settlement agreement, which can protect the parties from the ordeal and expense of probate litigation.

Texas Will Probate Law

Probating a will involves proving its validity, appointing an executor, and settling the decedent's estate under court supervision. Texas Estates Code Chapter 256 governs the process, which includes several required filings and often benefits from an experienced probate attorney's guidance.

The Texas will probate process typically includes reviewing the will to determine whether it is a valid, self-proving will under Texas probate law, determining whether the estate requires a full administration, obtaining a death certificate, drafting and filing an application to probate the will and seeking letters of administration or testamentary, preparing proof of death and oath documents, setting and attending a hearing to probate the will, fulfilling all notice requirements, collecting estate assets, dealing with estate debts, and distributing assets to the rightful heirs.

It is often advisable to hire a Texas will probate lawyer to work with the executor, beneficiaries, and family throughout the probate process. There are many variations and complications that can arise, and it is often important to have an attorney familiar with the process help a grieving family with estate administration.

What is a will?

A will is a written legal declaration of a person's intentions for what they want performed after their death. The will makes dispositions of property, sets up trusts, and establishes guardians upon a person's death. Under Texas law, a will must identify the testator, be written with "testamentary intent," and be executed with the requisite testamentary formalities. It also requires that the testator have "testamentary capacity," including being of sound mind. A will can be straightforward and simple or very complex, depending on the estate and what the testator wants to accomplish. In drafting a will, a Texas lawyer will need to gather information from the testator, including estate assets, the names of beneficiaries, executors, trustees, and representatives, and the testator's goals. Unfortunately, many wills do not comply with Texas law because of do-it-yourself will drafting kits and people who create their own wills without following the required formalities. Still other wills are lost or stolen and have to be set aside. The first step in handling someone's estate is determining whether they had a will and, if you find it, putting it in a safe location.

How do I know if my loved one had a will?

In most situations, those close to a person will know whether they had a will and where it is kept. Common places for a will include safety deposit boxes, a home safe, an attorney's office, or a home filing system with other important documents. In some situations, a will can even be filed at the local courthouse or kept by a trusted friend or lawyer. Wills are typically easy to spot, as they usually state on their face that they are the last will and testament of the decedent.

How do I know if the will is valid?

With many do-it-yourself form wills, as well as wills people attempt to write themselves, it is often difficult to know whether a will is valid. It usually takes a review by an experienced probate lawyer to determine whether a will is valid and will survive the probate process. In many Texas counties, including Travis County, the probate court requires the actual will and not just a copy. If the actual will is not available, there is a presumption that it was destroyed and revoked by the decedent.

What happens during the will probate process?

After a person dies, the will and a death certificate need to be filed in the probate court or county court where the decedent resided at death. Once both are filed with the proper court, a hearing is held where the decedent's death is proven, the will is determined to be valid, and the executor is sworn in and appointed.

This process is called probating a will, and it is often helpful to have a probate lawyer assist the executor in proving the decedent's death, the will's validity, and the executor's qualification to serve. Once the will is probated and the executor is appointed, the probate attorney helps make sure proper notices are given to creditors, assets are located, and an inventory is prepared and filed with the court.

How long do you have to probate a will in Texas?

Texas generally requires an application to probate a will be filed within four years of the date of death. If a will isn't offered for probate within that window, it typically can't be admitted in the standard way, and the estate may instead pass under Texas intestate succession law as though there were no will. There's a narrow exception: a will can sometimes still be probated after four years if the person seeking probate wasn't at fault, or "not in default," for failing to file it sooner, but relying on that exception adds risk and expense that timely filing avoids.

What is an executor of a Texas will?

An executor is the person named in a will to carry out the decedent's wishes. An executrix is the female form of the same term. Typically, the executor is the person responsible for offering the will for probate. The executor's duties include gathering and protecting the estate's assets, obtaining information about any other potential heirs, collecting and arranging for payment of the estate's debts, approving or disapproving creditors' claims, and disbursing property to the beneficiaries as designated in the will. An executor also makes sure estate taxes are calculated, the necessary forms are filed, and tax payments are made, while assisting the estate's attorney in every way. The executor also makes any donations left as bequests to charitable and other organizations as directed in the will. In most circumstances, the executor represents the estate for all purposes and has the ability to sue or be sued on the estate's behalf. The executor also holds legal title to the estate property but may not use that property for their own benefit unless expressly permitted by the will. An executor who breaches these duties can face removal and liability, so beneficiaries who suspect misconduct should consult a Texas executor fraud lawyer.

Where there is no will, a person is said to have died intestate. As a result, there is no executor named; if there is no will, or if the named executors do not wish to serve, an administrator of the estate may instead be appointed. The generic term for executors or administrators is personal representative.

The executor typically works with a lawyer to file the will for probate, obtain letters testamentary, make the necessary public notices concerning the estate, determine and protect assets, calculate the estate's liabilities, prepare an inventory of the estate, and distribute the assets to the beneficiaries.

Muniment of Title

Muniment of title is a simplified way to probate a will when the estate has no unpaid debts other than a lien on real estate, such as a mortgage, and there's no need for a full estate administration. Authorized under Texas Estates Code Chapter 257, Probate of Will as Muniment of Title, this process lets the court admit the will to probate without appointing an executor or opening a formal administration.

The probated will itself then serves as the official document that transfers title to the beneficiaries, which makes muniment of title faster and less expensive than a full will probate when an estate qualifies.

Suit to Determine Heirship

If there is no will and the estate is worth more than $75,000 (not including the homestead and certain non-probate assets), it may be necessary for a court to determine the heirs under Texas law. In these situations, the judge will appoint an "attorney ad litem" to represent the interests of potential or unknown heirs. The exact cost of a suit to determine heirship depends on the number of heirs, how hard they are to locate, and the complexity of the estate. This heirship proceeding is generally more expensive than probating a will and can become costly when there are many heirs, minor children, or complicated business or real estate assets involved.

Because these heirship proceedings can become complicated, it is usually best to hire a Texas intestate lawyer familiar with the heirship process to represent the administrator and, sometimes, the heirs. A Texas intestate lawyer can advise on options for obtaining letters of administration and ensure all necessary notices are handled correctly.

Dependent Administration

A dependent administration, governed by Texas Estates Code Chapter 351, requires court approval for every distribution, sale, or guardianship action taken on behalf of an estate. Courts often order this process when heirs cannot agree on how to administer the estate. A dependent administration can be expensive, but it is sometimes the best way to probate an estate, because an independent administrator trusted by all the heirs may not exist, and any of the administrator's actions could otherwise be questioned and attacked. To prevent these attacks based on breach of fiduciary duty, a dependent administration allows the estate administration to proceed with the court's approval. These administrations are expensive and slow, but sometimes necessary, and having a probate lawyer assist you through one is almost essential when dealing with a large estate.

Texas Guardianship Application

A guardianship application asks the court to appoint someone to manage the affairs of a person who cannot care for themselves, as defined under Texas Estates Code Chapter 1002. Texas courts favor less restrictive alternatives whenever they can adequately protect the proposed ward.

A guardianship is sometimes needed when a person cannot take care of themselves. Typically, a Texas probate court will look to alternative, less drastic measures to avoid a guardianship or making someone a ward, because a guardianship takes away a person's rights, including use of their finances and decisions about their daily care. An application for guardianship should only be filed to further a person's best interests.

Incapacitated Persons and Guardians

According to Texas Estates Code Section 1002.017, there are three types of incapacitated people who need guardians. The first is a minor, meaning someone under 18 who has not been emancipated. The second is an adult who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for themselves, to care for their own physical health, or to manage their own financial affairs. The third is a person who must have a guardian appointed to receive funds due from any governmental source.

A person is determined to be "incapacitated" upon a finding by a court that the person lacks the capacity to do some, but not necessarily all, of the tasks necessary to care for themselves or manage their property.

A court may appoint a guardian with full authority over an incapacitated person or may grant limited authority, as indicated by the person's actual mental or physical limitations and only as necessary to promote and protect their well-being. If the person is not a minor, the court may not use age as the sole factor in deciding whether to appoint a guardian. When creating a guardianship that gives a guardian limited power over an incapacitated person, the court must design it to encourage the development or maintenance of maximum self-reliance and independence in that person.

Setting Up a Guardianship and Filing an Application

An application for guardianship can be filed by any person who does not have an adverse interest to the proposed ward. This rule makes it easy for a good Samaritan to help a person unable to help themselves, while preventing people from attempting to take control over someone they owe money to or are fighting in a court battle. Most guardianship applications are filed and determined in a county court or probate court, though the determination can be transferred to district court. To have a guardian appointed, the applicant must have a medical report from a doctor stating that the proposed ward is substantially unable to take care of themselves. This medical report can be obtained before filing or as part of the court's determination.

Ancillary Probate in Texas

Ancillary probate, authorized under Texas Estates Code Chapter 501, transfers Texas real estate owned by an out-of-state resident who has died. The process runs alongside the primary probate proceeding filed in the decedent's home state.

More people are buying lake houses, lake condominiums, investment property, mineral interests, and other property in Texas without living here. When an out-of-state resident dies owning real property in Texas, it is often necessary to hire a Texas ancillary probate lawyer to file an ancillary probate proceeding to transfer the Texas real estate to the heirs or beneficiaries.

Last Will and Testament

A last will and testament sets out how a person's property, guardianship designations, and other affairs should be handled after death. Texas Estates Code Chapter 251 sets the formalities a will must meet to be valid.

A will is a written legal declaration of a person's intentions for what they want performed after their death. The will makes dispositions of estate property, sets up trusts, and establishes guardians upon a person's death. Under Texas law, a will must identify the testator, be written with "testamentary intent," and be executed with the requisite testamentary formalities. It also requires that the testator have "testamentary capacity," including being of sound mind.

A will can be straightforward and simple or very complex, depending on the estate and what the testator wants to accomplish. In drafting a will, a Texas lawyer will need to gather information from the testator, including estate assets, the names of beneficiaries, executors, trustees, and representatives, and the testator's goals.

If you are interested in a will, it is often best to contact an experienced Texas probate attorney and pay a little to have it done correctly and to make sure it complies with Texas probate law. If you do not, an invalid will can be thrown out, resulting in substantial legal costs, delays, and unnecessary tax liability. Even worse, an invalid will can result in unintended distributions of property. It is not uncommon to see people with hundreds of thousands of dollars in assets rely on a do-it-yourself will that turns out to be invalid, resulting in several thousand dollars in additional probate costs and unintentionally leaving loved ones out of the inheritance.

Medical Power of Attorney

A medical power of attorney names someone to make healthcare decisions if a person becomes unable to make them. Texas Health and Safety Code Chapter 166 authorizes the document, which takes effect only after a physician certifies that the person has lost that capacity. It also allows a person to give written instructions about the kind of treatment that should or should not be given. Even with a medical power of attorney in place, a person continues to make their own medical decisions as long as they are capable of doing so and can communicate those decisions. The agent's authority begins only when the attending physician certifies in writing that the person no longer has that capacity.

The HIPAA Medical Authorization

A HIPAA medical authorization designates who can receive a person's medical information. In Texas, disclosure of that information also falls under the Texas Medical Records Privacy Act, Health and Safety Code Chapter 181, and hospitals typically require the authorization before sharing details with a family member or caregiver. The HIPAA medical authorization is a useful document because it allows a person to designate who is entitled to receive their medical information. When going into a hospital, it is often important to have someone who can look after you while you are undergoing treatment, and that person will need a HIPAA medical authorization, and sometimes a medical power of attorney, to effectively communicate with hospital staff. HIPAA medical authorizations are commonly available and can be filled out quickly, but they need to be completed before a person loses capacity.

A Special Needs Trust

A special needs trust holds property for a disabled beneficiary without jeopardizing their eligibility for government benefits. Texas Property Code Chapter 142 lets a court create this kind of trust so a person can leave an inheritance without disqualifying a loved one from programs like SSI or Medicaid. Its main use is to prevent a disabled or incapacitated beneficiary from losing access to essential government benefits such as Supplemental Security Income, Social Security Disability Insurance, or Medicaid. These needs-based programs offer support to disabled individuals, so if a large sum of money, such as an inheritance or lawsuit proceeds, is given directly to a person receiving these benefits, it could jeopardize their eligibility or be taken by the government. The loss of these programs can be devastating to a person with significant disabilities.

A special needs trust allows money to be held in a limited trust for the person's benefit without jeopardizing their ability to receive benefits. The trust needs to comply with certain restrictions, however, so as not to jeopardize the beneficiary's continued eligibility.

The Revocable Living Trust

A revocable living trust, created under Texas Property Code Chapter 112, lets a person transfer assets into a trust while retaining the right to manage or reclaim them during their lifetime. Its main benefit is avoiding the probate process and its public disclosure requirements. In this arrangement, a person transfers ownership of their property into a trust but retains the right to revoke the trust and take the property back throughout their lifetime. The person transferring the assets, known as the settlor, is typically also the trustee and beneficiary of the trust during their life.

This arrangement allows the settlor to retain control of their assets as trustee, or to revoke the trust altogether and go back to managing the assets individually. The main benefit of a revocable living trust is that it can avoid the need for probate or a guardianship that would require public disclosure of assets. This privacy, however, can also create risks, including successor trustees trying to take the settlor's trust assets through incompetence challenges, or successor trustees failing to distribute trust assets to beneficiaries. Understanding the trust and giving copies of the trust document to all beneficiaries is typically important to protect against problems with successor trustees.

Why Choose Jason Coomer for Your Texas Probate Case

Texas probate law touches some of the hardest moments a family can face, from losing a loved one to caring for someone who can no longer care for themselves to working through a dispute over an estate. As a Texas probate lawyer, Jason Coomer has helped Texas families through contested and uncontested probate matters, guardianship disputes, trust litigation, heirship proceedings, and the estate planning documents that can help a family avoid a court fight altogether.

In beginning a review of any probate matter, we need to know the complete names of all interested parties, including heirs and beneficiaries, to avoid any potential conflict. Additionally, upon receipt of an inquiry and after a conflict check is successfully completed, we will send questions that we need answered to review your case. Please do not send AI generated reports prior to the conflict check and initial questions being answered and completed.