Probate Testate and Intestate

Each type starts out the same but the process begins with filing the initial application and getting a personal representative appointed.  After filing the application, a number of things occur, including the following:

  • Filing the will with the court, where it is proved valid or invalid
  • Accounting for all the assets of the estate and reporting the results to the court
  • Creditors are given notice of the death and are given the opportunity to make claims against the estate
  • Debts and expenses of the estate will be paid
  • Remaining assets are distributed according to the will or according to Texas law, if there is no will
  • If there is a dispute about the validity of a will or a disagreement about tow assets should be distributed, probate litigation may occur.

In Texas there are numerous   types of probate administration.  The differentiating factor in each type of administration is the level of court supervision.  All have their advantages and disadvantages.  Following are the types of probate available:

Dependent administration:
This form of probate has a high level of court supervision.  It means that the administrator needs the court’s permission to enter into almost any transaction, from paying the estate’s debts to selling property.  The following items are considered about this probate:

  • Conflict:  Significant conflict among heirs or beneficiaries results in court supervision and the judge can oversee the conduct of everyone involved, providing some protection for the administrator
  • Creditor issues:  This type of administration requires creditors to follow strict procedures for making claims if a creditor fails to present their claim within a certain time or makes a claim incorrectly; the estate will no longer be liable for that debt.
  • Bond:  The administrator must provide a bond based on the size of the estate.  The bond is there to provide protection for the beneficiaries and creditors of an estate.  Once a dependent administration is closed the administrator
  • Fees and Expenses:  Repeated applications to the court for approval of an administrator’s actions means that legal fees and court costs are typically higher than other types of administration.

Independent Administration:
This is the most common type of probate administration in Texas.  Independent Administration is much less expensive than dependent administration because the administrator does not need to go to court very often, nor does he or she usually have to post a bond.  This type of administration can be either requested in the will or arise by consent of all heirs or beneficiaries.   Things to consider:

  • Efficiency:  This type of probate can usually be completed more quickly than a dependent administration.
  • Court Involvement:  This proceeding involves less court involvement, which means less attorney’s fees and costs to you.  The personal representative does not need court approval for all actions, saving the estate on fees and expenses.


  • You must collect all the deceased assets of the deceased person’s estate and safeguard them.  This includes car titles, jewelry, keys to homes and safes, and bank cards.  Place all of this information in a safe place where no one will have access to it.  Remember that as executor, you can be held liable for anything missing from the estate.
  • You must send a notice to all creditors.  If available, you will use liquidated money from the estate to pay any remaining creditors.  The best way to ensure all creditors are paid is to request a credit report and send the creditors a copy of the death certificate.  This will provide the creditor notice of the death, at which point they will send you a final bill.  Pay the bills if they are accurate, but if they do not seem valid, challenge the claim.
  • You must notify all insurance companies and public agencies of all insurance accounts, social security information, and notify these entities of the death.  Most will also require a copy of the death certificate.  If the deceased person has a widow, be sure and specify their information to the social security office for surviving spouse’s payment.

The probate process can become more complex if anyone challenges the validity of the will.   It is the executor’s job to protect the assets and deliver them to the proper people or organizations.  It is our job to make your responsibilities as an executor to run smoothly and without any unnecessary problems.

Muniment of Title:
This method of probate is unique to Texas.  There is no executor or administrator appointed to distribute property.  Rather, once the court certifies that the will is truly the last will of the deceased person, the court’s order itself transfers title to the intended beneficiaries.  Essentially, the court order serves as an instrument transferring title to property.

  • A muniment of title works best when real estate is the only asset in the estate.  If there are bank accounts, brokerage accounts or similar assets, it is likely that a dependent or independent administration will be necessary.

Small Estate Affidavit:

A small estates affidavit may be filed when an individual dies intestate and there is no petition for the appointment of a personal representative pending, nor is the value of the entire assets of the estate over $50,000.00.  Thirty days must have elapsed since the death of the decedent and an affidavit sworn to be two disinterested witnesses, by all such distributes that have legal capacity and, if the facts warrant, by the natural guardian or next of kin of any minor or the guardian of any other incapacitated person who is also a distribute, which affidavit shall be examined by the judge of the court having jurisdiction and venue.  After reviewing the affidavit and whether or not it conforms to the terms of the Probate code the Judge in his discretion may approve the affidavit.

Declaration of Heirship:

When a person dies without a will or a provision of the will fails to dispose of all the probate assets, the most common estate settlement proceeding is a judicial declaration of heirship.  The Texas statutes of intestate succession determine the identities of the rightful heirs and determine what portion of the community property passes to the heir as well as what portion of separate property passes to that heir.  All heirs and beneficiaries must either be served with citation or enter an appearance through a written answer or a waiver.  An application for heirsip may be filed by an administrator, heir, secured creditor, guardian, or other interested party. All heirs must receive certified or registered mail service of the application.