Top 10 Things Every Non-Texas Attorney Should Know About Texas Estate & Probate Laws

 

1.    If the correct language is used in a Will, Texas allows an Independent Administration of an estate.  Yes, that  means that court supervision is NOT required for everything coming in or going out of the estate.  Isn’t Texas great!?!

 2.   Texas is one of the only states that will allow you to probate a Will as Muniment of Title if you meet certain requirements.  When a Will is admitted to probate as Muniment of Title only, the Will itself evidences the right of ownership by the named beneficiary.  There is no administration required, no publication notice to creditors, no notice to secured creditors, or filing of an Inventory required.  (Tex. Estates Code Ann. § 257.001)

 3.   Texas law recognizes Holographic Wills, or Wills which are all in the testator’s handwriting.  (It does require a few other things, such as showing testamentary intent, and being signed by the testator, but it is not required to be witnessed to be valid.)  Okay, they are not the best way to prepare your Last Will and Testament, and they are more expensive to probate, but sure beats not having a Will at all.  Isn’t Texas great!?!

 4.    Texas law allows you to disinherit a child.  Sometimes folks have a good reason that they don’t want to leave anything to a child.    

 5.    Texas requires that all beneficiaries (with very limited exceptions) be given notice that they are, in fact, beneficiaries under someone’s Will.  Doesn’t that seem fair?  (Tex. Estates Code Ann. § 308.002)

 6.   Under certain circumstances, an Independent Executor may be able to file an Affidavit In Lieu of Inventory, Appraisement & List of Claims.  This may be an option only when all debts, except for secured debts, taxes, and administrative expenses have been paid, and all beneficiaries have received a verified and full Inventory.  Persons interested in the estate, such as possible heirs, or beneficiaries under a prior Will are entitled to receive copies of the Inventory as well, but this keeps the assets of the estate from being made a part of the public record.  Isn’t Texas great!?! (Tex. Estates Code Ann. § 309.056)

 7.   Texas has a procedure that can be used under limited circumstances for handling smaller estates when there is no Will.  It is called a Small Estate Affidavit, or Small Estate Administration.  Since no one is representing the estate, an attorney is not required to file the Small Estate Affidavit.  However, there are many traps for the unwary, and there really should be a discussion with an estate attorney to make sure that the estate would qualify for this type of administration. This is one way to access funds held by a financial institution or brokerage house without having Letters Testamentary issue by the court.

 8.   Texas has no separate estate tax or inheritance tax.  If the estate does not owe any federal estate tax, then it passes tax free to the beneficiaries. Isn’t Texas great!?!

9.     The Texas Constitution grants the Legislature the authority to create special Statutory Probate Courts which specialize in probate, guardianship, trust, and mental health cases.  There are no jurisdictional monetary limits on the lawsuits that these Statutory Probate Courts can handle, so their jurisdiction overlaps at times with district courts.  These courts are typically found only in the larger counties of Texas, such as Bexar, Collin, Dallas, Denton, El Paso, Galveston, Harris, Hidalgo, Tarrant, and Travis Counties.

10. Texas does not combine its medical and financial powers of attorney.  We have two separate documents; the Medical Designation Of Health Care Agent and the Statutory Durable Power Of Attorney.  If you have both of these documents, you can usually avoid having to go through a Guardianship.