How to File for Probate in Texas: The Starting Point for Everything

Not every death requires a formal probate proceeding. Texas law provides several paths depending on how the property was owned, whether there is a will, and the size of the estate. Probate is generally required when the deceased owned real property (a house, land, or mineral rights) solely in their name at the time of death and there is no surviving joint owner with right of survivorship. For a detailed breakdown of when probate is and is not needed, see our guide on when probate is required in Texas.

When Probate Is Typically Needed

• The deceased owned real estate in their name alone with no joint tenant or beneficiary designation
• The estate needs a legal representative to handle debts, taxes, or asset distribution
• A will exists and needs to be admitted to probate to be effective
• The estate is subject to creditor claims or the Medicaid Estate Recovery Program (MERP)

When Probate May Not Be Required

• Property owned with right of survivorship: Joint tenancy, community property with right of survivorship, or a named beneficiary on a transfer-on-death deed passes automatically outside of probate
• Small estate affidavit: Estates valued at $75,000 or less (excluding the homestead and certain exempt property) may qualify for a simplified process without formal probate. However, the homestead exemption for small estate affidavits requires careful review of ownership and use criteria.
• Life insurance and retirement accounts: These pass directly to named beneficiaries outside of probate
• Trust assets: Property held in a properly funded revocable or irrevocable trust avoids probate

Every situation is different. A qualified Texas estate attorney can review the specific facts and determine whether probate is required.

Texas law provides several types of probate proceedings. The right one depends on whether there is a valid will, the size and complexity of the estate, and whether all heirs agree on the distribution plan.

Independent Administration

This is the most common form of probate in Texas — used in roughly 70% of estates. Independent administration, governed by Texas Estates Code Chapter 401, allows the executor to manage and sell estate property without ongoing court supervision. The court confirms the will and appoints the executor at a hearing, then the executor acts independently. This is faster, simpler, and less expensive than dependent administration. The will may grant independent administration explicitly, or the court may order it if all beneficiaries consent.

Dependent Administration

When the will does not grant independent authority, or when heirs do not consent, the estate proceeds through dependent administration under Texas Estates Code Chapter 402. In this form, the executor (called an administrator if there is no will) must obtain court approval for most significant actions — including the sale of real property. This involves a formal process under Chapter 356: an application to sell, an order of sale, a report of sale, and a court order approving the sale. Dependent administration takes longer and costs more. For a deeper dive, see Dependent Administration in Texas.

Muniment of Title

This simplified proceeding is available when the decedent left a valid will and there are no unpaid debts other than debts secured by real property (such as a mortgage). The court admits the will to probate without appointing an executor. The will itself serves as the legal instrument to transfer title to the beneficiaries. This option is limited to straightforward estates with no outstanding unsecured debts.

Small Estate Affidavit

When the value of the estate is $75,000 or less (excluding the homestead and certain exempt personal property), Texas allows a simplified small estate affidavit procedure that bypasses formal probate. This is available only if there is no will and the assets can be distributed without court administration. The homestead exemption from this threshold requires careful review by an attorney — the property must meet specific ownership and use criteria.

The probate filing process follows a structured sequence. The steps below assume a standard independent administration with a valid will — the most common scenario. If there is no will, the process is similar but involves additional steps to determine heirship.

1. 1
   Determine the correct county. In Texas, probate is filed in the county where the decedent resided at the time of death. This is typically the county probate court or the county court at law. For example, if the decedent lived in San Antonio, you would file with the Bexar County probate court (San Antonio probate court). If the decedent lived in Boerne, the Kendall County probate court handles the case. In smaller counties, the constitutional county court may handle probate matters.
2. 2
   Gather the necessary documents. You will need the original will (if one exists), a certified death certificate, and information about the decedent, their heirs, and the estate's assets. See the documents section below for the complete list.
3. 3
   File the Application for Probate. Your attorney will prepare and file an "Application to Probate Will and for Issuance of Letters Testamentary" (or "Application for Administration of an Intestate Estate" if there is no will) with the county clerk. The application includes information about the decedent, the will, the proposed executor, and the estate's known heirs.
4. 4
   Serve citation and post notice. The court will issue citation (formal notice) to all heirs and beneficiaries. In most counties, a notice must also be posted at the courthouse for at least 10 days before the hearing. These steps ensure that interested parties have an opportunity to be heard.
5. 5
   Attend the court hearing. A judge reviews the application, verifies the will's validity, and confirms that proper notice has been given. If everything is in order, the judge signs an order admitting the will to probate and appoints the executor.
6. 6
   Take the oath and receive Letters Testamentary. The executor must take an oath of office and file it with the court. The court then issues Letters Testamentary (or Letters of Administration), which serve as the executor's official proof of authority to act on behalf of the estate. This is the document banks, title companies, and other institutions will ask to see.
7. 7
   File an Inventory, Appraisement, and List of Claims. Within 90 days of receiving Letters Testamentary, the executor must file a detailed inventory of the estate's assets and their values with the court (in dependent administration) or with the beneficiaries (in independent administration).
8. 8
   Notify creditors. Publish notice to creditors in a local newspaper and send direct notice to known secured creditors. This starts the claims period for creditors to file claims against the estate.
9. 9
   Administer the estate. Pay debts and taxes, manage and eventually sell estate property, and prepare for distribution to beneficiaries.
10. 10
    Close the estate. Once all debts are paid, assets distributed, and final accounting approved, the executor files a closing report and the estate is closed. This typically takes 6 to 18 months for straightforward estates.

Filing for probate requires assembling a specific set of documents. Having everything ready before you visit the attorney or the county clerk will save time and reduce the risk of delays.

For a complete 15-section checklist covering all the documents and steps involved in an estate home sale, see The Texas Executor Estate Home Sale Checklist. It walks through authority, property control, insurance, contents, carrying costs, title investigation, condition, pricing, disclosures, timing, family dynamics, marketing, offers, closing, and wrap-up.

Within 90 days of receiving Letters Testamentary (or Letters of Administration), the executor must file an Inventory, Appraisement, and List of Claims with the court (in dependent administration) or provide it to the beneficiaries (in independent administration). This document lists all estate assets, their estimated fair market value as of the date of death, and any known claims against the estate.

The inventory typically includes real property (with the county appraisal district's value or a formal appraisal), bank accounts, investment accounts, vehicles, personal property of significant value, and any other assets. It must also list known debts, including mortgages, credit card balances, medical bills, and other obligations.

For the real property, the executor should obtain a date-of-death valuation. The stepped-up basis under IRC Section 1014 means inherited assets generally receive a basis equal to their fair market value on the date of death, not what the decedent originally paid. A formal appraisal establishes this value and can reduce capital gains exposure when the property is later sold.

One of the executor's key responsibilities is notifying creditors of the estate. Under Texas Estates Code Chapter 308, the executor must:

• Publish a notice to creditors within 30 days of qualification in a newspaper of general circulation in the county where the estate is being administered
• Send direct notice via certified or registered mail to all known secured creditors (e.g., mortgage lenders) within two months of receiving Letters Testamentary
• File proof of notice with the probate court, including the publication affidavit and return receipts

Creditors generally have four months from the date of first publication to file a claim. Claims filed after that deadline are typically barred. This provides the estate with legal finality, allowing the executor to distribute remaining assets to beneficiaries without fear of later claims.

When someone dies without a valid will in Texas, the estate is distributed under the state's intestacy laws (Texas Estates Code Sections 201.001-201.003). The probate court appoints an administrator to manage the estate, and assets are distributed according to a statutory priority system.

Intestate Distribution Rules

For a complete guide to intestate estates in Texas, including how to sell real property when there is no will and how the court determines heirship, see Intestate in Texas.

Texas Estates Code Section 256.003 imposes a firm deadline: a will must be offered for probate within four years of the decedent's date of death. This is one of the most important deadlines in Texas probate law. If the deadline is missed, the will may be deemed invalid, and the estate will be distributed under the intestacy laws as if no will existed.

Exceptions to the Four-Year Rule

Limited exceptions exist. The court may allow late probate after the four-year deadline if the executor was not "in default" and can show good cause for the delay. The court may also admit a will to probate as a muniment of title after the deadline in certain circumstances. However, these exceptions are fact-specific and require court approval — they should not be relied upon without legal guidance.

On June 27, 2025, the Texas Supreme Court decided Suday v. Suday (No. 24-1009), a significant case that addressed whether an executor who is also the estate's sole beneficiary may represent the estate without an attorney (pro se).

The Court held that when an executor is the sole beneficiary of the estate, the executor may represent the estate pro se. The reasoning was straightforward: since there are no other beneficiaries who could be harmed by the executor's mistakes, there is no third party at risk. This carved out a narrow exception to the general rule that estates must be represented by legal counsel.

Important limitation: This exception applies only when the executor is the sole beneficiary. If there are multiple beneficiaries, or if a house is involved with title complexities, creditor claims, or family dynamics, legal counsel remains strongly recommended. Texas probate courts have their own rules and preferences regarding representation.

The Medicaid Estate Recovery Program (MERP) is a federally mandated program administered by the Texas Health and Human Services Commission (HHSC). It requires the state to recover the costs of long-term care Medicaid benefits from the estates of deceased recipients who were age 55 or older when they received those services.

If the deceased received nursing home care, in-home support, or other Medicaid long-term care services, the state may file a claim against the estate — including the home. After the recipient's death, HHSC sends a Notice of Intent to File a Claim. The claim is presented to the executor or filed with the probate court.

Exemptions and Waivers

MERP claims are not automatic. Exemptions exist when there is:

• A surviving spouse
• A child under age 21
• A blind or disabled child
• An unmarried adult child who lived in the decedent's homestead for at least one year before death

An attorney ad litem is a lawyer appointed by the court to represent the interests of persons who cannot adequately represent themselves in probate proceedings. This commonly includes:

• Unknown heirs — when the identities or locations of potential heirs cannot be determined
• Incapacitated persons — beneficiaries who lack legal capacity to represent themselves
• Minors — children who inherit but cannot legally manage their own interests until age 18

Attorney ad litem appointments are most common in intestate estates where heirship must be judicially determined through an Application to Determine Heirship. The attorney ad litem researches the decedent's background, interviews witnesses, and ensures the court has accurate information about who the legal heirs are. The fee is paid from estate assets as a cost of administration.

Texas law does not prohibit a nonresident from serving as executor or administrator of a Texas estate. If you live outside Texas and have been named executor, you can generally serve in that role. However, there are practical considerations:

• Resident agent: A nonresident executor may need to appoint a resident agent for service of process in Texas
• Local coordination: You will need reliable local professionals — attorney, real estate agent, property manager — to handle day-to-day matters
• Communication: Regular communication with the court and attorney is essential

For a complete guide on managing a Texas probate home sale from another state, including remote management logistics, property maintenance, and common pitfalls, see Out-of-State Executors.