Texas Probate Code: Paths, Deadlines, and Duties

Texas estate administration runs on the Texas Estates Code, which replaced the older Texas Probate Code on January 1, 2014. The code sets out four different ways to settle a deceased person’s estate, spells out who can serve as executor, orders the payment of debts, and controls how property finally reaches the heirs. Which path fits a given estate depends on three things: whether there is a valid will, how much the estate is worth, and how complicated the debts are.

The Four Paths Through Probate

Not every estate goes through the same process. Texas offers four administration types, and the difference between them is mostly how much court supervision is required.

Independent Administration

This is the common route in Texas. The executor pays debts, sells property, and distributes assets without asking the court to approve each step. Independent administration is available when the will explicitly grants it, or when all beneficiaries agree in writing and the court approves their chosen administrator.¹ Building an independent-administration clause into a will is one of the most useful things a testator can do for the people who will eventually settle the estate.

Dependent Administration

Dependent administration means the representative has to get court approval before doing almost anything significant, from selling real estate to paying certain debts. Courts default to this when beneficiaries cannot agree on who should serve, when the will does not authorize independent administration and the heirs will not unanimously consent, or when the judge sees a reason to keep closer watch. It is slower and more expensive because of the added hearings and attorney time.

Muniment of Title

If a valid will exists and the estate has no unpaid debts other than those secured by real estate, the court can admit the will as a “muniment of title.” The same option is available when the court finds no need for a full administration even where some debts exist.² No executor is appointed. No administration opens. The will itself becomes the legal document that transfers title, closes accounts, and moves assets to the beneficiaries. It is well-suited to simple estates whose main purpose is transferring a house or a few financial accounts.

Small Estate Affidavit

When someone dies without a will and leaves a modest estate, heirs can skip formal probate by filing a small estate affidavit. Estate assets, not counting the homestead, exempt property, and non-probate assets, must total $75,000 or less and must exceed the estate’s debts.³ If the homestead is the only real property, title to it can also transfer through the affidavit.⁴ Once the court approves it, heirs use the affidavit to collect assets from banks and other institutions without ever opening a formal administration.

Assets That Skip Probate Entirely

The Estates Code only reaches assets that make up the probate estate. A large share of what a person owns often transfers automatically to a joint owner or named beneficiary, and the will has no say in it. Knowing which is which matters, because it determines what the executor actually controls, what creditors can reach, and how quickly survivors get to the money.

The main categories of non-probate assets in Texas:

Life insurance proceeds, which go directly to the named beneficiary on the policy.
Retirement accounts such as IRAs and 401(k)s with a designated beneficiary.
Jointly held property with right of survivorship, where the surviving co-owner automatically takes full ownership.
Transfer-on-death deeds. A Texas property owner can sign and record a deed transferring real estate to a named beneficiary at death; the deed must be recorded in the property’s county before the owner dies and stays revocable until then. A will cannot override it.⁵
Payable-on-death bank accounts, claimed directly from the bank by the named beneficiary.
Assets held in a trust, distributed by the trustee under the trust document rather than through probate.

Because these transfers happen outside the will, an outdated beneficiary form can quietly override years of careful estate planning. Beneficiary designations deserve the same periodic review a will gets.

The Four-Year Deadline to File a Will

A will generally cannot be admitted to probate more than four years after the testator’s death. The court can make an exception only if the applicant proves they were not at fault for the delay.⁶ Even then, letters testamentary will not issue after four years unless the application itself was filed inside that window. Miss the deadline and the will can be treated as though it never existed, with the estate passing under intestacy rules instead.

The delay creates a second, permanent problem. After four years, someone who bought property in good faith from the decedent’s heirs, not knowing about a will, keeps clear title even if the will later surfaces.⁶ Beneficiaries under a late-filed will can lose property they were entitled to, and the loss is not fixable.

What Makes a Will Valid

A Texas will is enforceable only if it meets specific requirements. The testator must be at least 18, currently or previously married, or a member of the armed forces. The will must be in writing and signed by the testator personally, or by someone else in the testator’s presence and at their direction. Two or more credible witnesses at least 14 years old must sign in the testator’s presence.⁷

Texas also recognizes holographic wills, which are written entirely in the testator’s own handwriting and need no witnesses.⁷ Without witnesses, holographic wills are more vulnerable to challenge, because no one can testify to the testator’s mental state at the time of writing.

If the will has a self-proving affidavit (a notarized statement signed by the testator and witnesses when the will was executed), the court will generally admit it without live testimony. Without that affidavit, the witnesses may need to appear in court or provide sworn statements confirming the testator was of sound mind and acted voluntarily.

Will contests usually rest on claims of lack of mental capacity, undue influence, or fraud. The person challenging the will carries the burden of proof, and Texas courts require clear and convincing evidence. If a will is ultimately found invalid, the estate passes under the intestacy rules as if no will existed.

The Personal Representative’s Job

Every administration needs someone in charge. When the will names an executor, the court usually confirms that choice. When no executor is named or the named person cannot serve, the court appoints an administrator following a statutory priority list that favors the surviving spouse and closest relatives.

Section 304.003 disqualifies certain people from serving. A person cannot serve as executor or administrator if they are incapacitated, an unauthorized foreign corporation, or a nonresident who has not appointed a resident agent for service of process. Convicted felons are disqualified unless they have been pardoned, had their civil rights restored, or were specifically named in the will and approved by the court.⁸ The court can also disqualify anyone it finds “unsuitable,” which gives the judge room to act on conflicts of interest or a track record of financial irresponsibility.

Qualifying and Posting Bond

Before doing anything for the estate, the appointed representative must qualify by taking an oath and, in most cases, posting a bond. The bond is a financial guarantee that the representative will handle things properly. If the will waives the bond and the court finds the person qualified, no bond is required, and corporate fiduciaries are also exempt. Even when a bond has been waived, any creditor or interested person can ask the court to require one later if the executor appears to be wasting or mismanaging assets.⁹

Fiduciary Duties

A personal representative is a fiduciary and owes the estate and beneficiaries loyalty, honesty, and competent management. That rules out using estate funds personally, favoring one beneficiary beyond what the will directs, or letting estate property lose value through neglect. Mixing estate money with personal accounts, paying oneself unreasonable fees, or selling estate property to oneself at a discount are the classic self-dealing failures courts sanction.

When a court finds a breach, consequences range from removal and replacement to an order requiring the representative to compensate the estate personally. Theft from the estate can produce criminal charges. Beneficiaries and creditors can petition the court at any time if they believe the representative is acting improperly.

Compensation

A representative who has faithfully managed the estate is entitled to a commission of five percent on amounts they actually receive or pay out for the estate.¹⁰ The will can set a different arrangement, and the executor can waive the fee entirely, which family-member executors sometimes do. Other estate costs include court filing fees, publication of creditor notices, appraisals, accounting fees, and attorney fees, which are typically the largest expense. These administrative costs are treated as high-priority debts and are paid before most creditor claims.

Paying Creditors in Order

Within one month of receiving letters testamentary or letters of administration, the representative must publish a notice to creditors in a newspaper of general circulation in the county where the probate is pending.¹¹ If the decedent owed state-administered taxes, notice must also go directly to the comptroller.

Secured creditors, such as mortgage lenders, must present their claims and specify how they want to be paid within six months of letters being granted or four months of receiving notice, whichever comes later. Unsecured creditors who receive a permissive notice from the representative have 121 days from receipt to present their claims, or the claims are permanently barred.¹² The representative approves valid claims for payment and rejects those that appear unfounded. A creditor whose claim is rejected can sue the estate to enforce it.

Priority When Money Is Limited

When an estate cannot cover every debt, the code sets a strict order of payment. The representative cannot pay whichever creditor is loudest. Claims are classified into seven tiers:¹³

Class 1: Funeral expenses and final medical bills, each capped at $15,000. Anything over the cap becomes an ordinary unsecured claim.
Class 2: Administrative expenses, including court costs, executor compensation, and costs of preserving estate property.
Class 3: Secured claims paid from the proceeds of the property securing them.
Class 4: Child support arrearages confirmed by a court or by the state’s Title IV-D agency.
Class 5: Certain state and local taxes.
Class 6: Costs of confinement assessed by the Texas Department of Criminal Justice.
Class 7: All remaining unsecured claims.

Each class must be paid in full before the next class receives anything. If a class cannot be paid in full, its creditors share what is available proportionally. Federal tax liens follow their own priority rules under federal law, which can override state classification in some situations.¹⁴ Beneficiaries receive nothing until debts and administrative expenses are resolved.

Taxes the Estate Owes

Several tax obligations fall to the personal representative, and missing a deadline can create penalties for the estate or personal liability for the representative.

The representative must file the decedent’s final federal income tax return (Form 1040) covering January 1 of the year of death through the date of death. The filing deadline is the standard April date for that tax year unless the representative requests an extension.¹⁵

If the estate itself earns income after death (interest, rent, dividends on estate-held assets), the representative files IRS Form 1041 for any tax year in which the estate has gross income of $600 or more.¹⁶ The estate is its own taxpayer, separate from both the decedent and the beneficiaries.

Most Texas estates owe no federal estate tax. For deaths in 2026, the federal exemption is $15,000,000 per person; only estates above that threshold owe the tax.¹⁷ Texas imposes no state estate or inheritance tax, so the federal tax is the only estate-level tax at issue.

Closing the Estate

After debts, taxes, and expenses are paid and any disputes settled, the representative distributes what is left. If there is a will, the executor follows its terms, honoring specific gifts first and then dividing residual property. Without a valid will, Texas intestacy statutes control, favoring the surviving spouse and children first and reaching more distant relatives only when no closer family exists.

Distributions to minor or incapacitated beneficiaries need extra care. The court may order funds held in trust or require a guardian to manage the inheritance until the beneficiary reaches adulthood or regains capacity. Handing a check to a 10-year-old’s parent is not enough.

In a dependent administration, the representative files a final accounting with the court showing every dollar in and out. Independent administrations do not always require a formal accounting, but the representative should still keep detailed records in case a beneficiary later challenges how the estate was handled. Once distributions are complete and the court is satisfied that the administration is properly wrapped up, the case is officially closed.

1
State of Texas. Texas Estates Code Chapter 401 – Independent Administration
2
State of Texas. Texas Estates Code Chapter 257 – Probate of Will as Muniment of Title
3
Texas Law Help. Small Estate Affidavits
4
State of Texas. Texas Estates Code Chapter 205 – Small Estate Affidavit
5
State of Texas. Texas Estates Code Chapter 114 – Transfer on Death Deed
6
State of Texas. Texas Estates Code Chapter 256 – Probate of Wills Generally
7
State of Texas. Texas Estates Code Chapter 251 – Wills
8
State of Texas. Texas Estates Code Section 304.003 – Persons Disqualified to Serve as Executor or Administrator
9
State of Texas. Texas Estates Code Chapter 305 – Qualification of Personal Representatives
10
State of Texas. Texas Estates Code Chapter 352 – Compensation and Expenses of Personal Representatives
11
State of Texas. Texas Estates Code Chapter 308 – Notice to Beneficiaries and Claimants
12
State of Texas. Texas Estates Code Chapter 355 – Presentment and Payment of Claims
13
State of Texas. Texas Estates Code Section 355.102 – Claims Classification and Priority of Payment
14
Internal Revenue Service. 5.5.2 Probate Proceedings
15
Internal Revenue Service. How to File a Final Tax Return for Someone Who Has Passed Away
16
Internal Revenue Service. 2025 Instructions for Form 1041 and Schedules A, B, G, J, and K-1
17
Internal Revenue Service. Whats New Estate and Gift Tax