Probating an Estate Without a Will

Probate is the process by which a court legally recognizes a person’s death and authorizes the administration—that is, the management and distribution—of their estate. The simple purpose of probate is to transfer the assets out of a deceased person’s name and into the names of the living.

The estate may need to be probated, depending on (1) the size of the deceased’s estate and (2) what property is a part of the estate.  

Some of the decedent’s property may pass without the need for probate, because it is not a part of the probate estate. These are generally items that already have assigned beneficiaries. Examples of property that does not need to go through the probate process include:

• Life insurance. If the life insurance policy has a living beneficiary, the beneficiary should contact the insurance company directly about receiving the benefits.
• Bank accounts. If there is a “payable on death” form associated with an account, there is no need for the account to be part of the probate estate. The money can be accessed from the account by taking a death certificate to the bank.
• Retirement accounts. If there is a retirement account, contact the company managing the account directly to find out about the beneficiaries and any payout.
• TODD. If there is a Transfer on Death Deed (TODD) related to any real property (such as land or a house), the deed may transfer the real estate without the need for probate. 

Definitions of common terms in this area of law can be found in Texas Estates Code chapter 22.

• Allowance in lieu of exempt property. An allowance in lieu of exempt property is a reasonable allowance to be paid to the decedent's surviving spouse and children as provided by Texas Estates Code chapters 353.054 and 353.101.
• Assets. Assets are any property owned that has monetary value, such as cash or bank accounts, vehicles, household furnishings, and real property.
• Decedent. The person who died. The terms "deceased" and "decedent" are used interchangeably in these documents.
• Estate. The property that belonged to the decedent. See Texas Estates Code chapter 22.012.
• Exempt property. Some property in a deceased person’s estate is exempt from forced sale under the state constitution or Texas state laws (Texas Property Code section 42.002a) to pay debts, including any allowance paid in place of that property. 
• Family allowance. The Texas Estates Code allows for payment of a family allowance sufficient for the maintenance of the decedent’s surviving spouse, minor children, and adult incapacitated children for one year from the date of the decedent’s death.  The amount of the family allowance is set by court order.
• Intestate succession. How the courts determine to which relatives the property is distributed to when someone dies without a will.
• Liabilities. Liabilities are the debts owed by the deceased at the time of his or her death.
• Personal representative. A personal representative is someone authorized to take actions on behalf of the deceased person's estate. The term "personal representative" can include an executor, an estate administrator, or a successor estate administrator.
• Separate property. Separate property is property owned before marriage, property owned after a final divorce decree, or property acquired by gift or inheritance. It must be distinguished from community property, which is any property acquired during marriage other than by gift or inheritance. Click here for a guide to what can happen with a spouse’s property when the spouse dies.

In Texas, probate cases are filed in the county clerk’s office. In some counties, a general county court has jurisdiction. In other counties with larger populations, a statutory probate court will have jurisdiction.

To determine the heirs of an estate, you must first determine if the deceased’s property is separate or communityproperty; if the deceased was married or unmarried; whether the deceased had children; and, if so, whether those children were also the children of the deceased’s spouse. Once these facts are determined, the heirs of the property are governed by chapter 201 of the Texas Estates Code. 

• Texas Young Lawyers Association: Texas Probate Passport
• Houston Bar Association: Elder Law Handbook
• Austin Bar Association: People’s Law School videos related to probate