Probating an estate is complex and time-consuming, and is something most people try to avoid in advance with estate planning. However, sometimes probate is necessary, and an uncontested probate case can be confusing and frustrating without an experienced probate attorney to guide you through the process. 

This guide will help to explain the basics of uncontested probate in Texas, when it’s applicable, and what to expect from the process. 

What is Uncontested Probate?

In Texas, probate is the legal process of validating a will (if one exists) and administering a deceased person’s estate. When all beneficiaries and heirs agree to the will’s terms and there are no disputes regarding its validity or the distribution of assets, the probate process is considered uncontested. 

An uncontested probate is typically faster and less expensive because it typically results in what is called an ‘independent administration,’ which allows for minimal court supervision. This independent administration allows the executor/administrator to act on behalf of the estate without having to return to court and receive permission for every action needed to distribute estate assets. 

Remember that without independent administration, the court must approve each action taken by the executor/administrator. Hiring an attorney from Thomas Walters, PLLC can help to expedite this process.

How Long Does Uncontested Probate Take?

It can take anywhere from six months to a year to settle an uncontested estate. The speed largely depends on the validity of the will, the circumstances of the family, and the presence of a probate lawyer. See this post for a detailed explanation for how long probate can take depending on the details.

What if the Decedent Did Not Have a Will?

If the decedent died without a will, or if a will cannot be located, the decedent’s estate will be distributed according to Texas intestacy laws. This process requires the court to determine heirship to identify the decedent’s legal heirs and what share of the decedent’s assets each heir is entitled to receive. 

When all of the decedent’s family members agree on the identity of the heirs, the distribution of the decedent’s assets, and are willing to sign waivers consenting to a representative of the estate acting as an independent executor to collect and distribute assets, a determination of heirship can proceed as uncontested.

When Can an Uncontested Probate Occur?

An uncontested probate can occur if:

• There is a valid will (if one exists): If there is a valid will that all interested parties accept — which clearly designates an executor — and the beneficiaries are in agreement with the will’s terms, you may move into uncontested probate.
• You can accurately identify the decedent’s heirs: If a valid will does not exist, all family members agree on the identity of the decedent’s heirs and at least two disinterested witnesses can and are willing to verify the decedent’s family history and the identity of these heirs in open court. A disinterested witness is someone who is unrelated to the decedent, will not inherit from the decedent’s estate, does not have a claim against the decedent’s estate, and knew the decedent long enough to be knowledgeable about the decedent’s family history.  
• There is a clearly defined executor or administrator role: The executor named in the will is available and willing to carry out their duties, and no one is challenging their appointment. If a will does not exist and an administrator must be appointed, all heirs are in agreement to appoint the person applying as administrator to act in that role and are willing to cooperate with them. The executor/administrator must also not be disqualified by Texas law from acting as executor/administrator (more on this later).
• There is agreement among heirs and beneficiaries: All beneficiaries, heirs, or other interested parties agree on the distribution of assets and the administration of the estate.
• There are no disputes over debts or claims: The estate’s debts, taxes, and other obligations are clearly outlined, and there are no disputes from creditors or others who may have claims against the estate.
• There are no will contests: No one challenges the validity of the will based on claims of undue influence, fraud, or lack of capacity by the decedent at the time of making the will. 
• The statutory deadlines have not passed: In Texas, a will must typically be admitted to probate within four years of the decedent’s death. If this process does not occur within those four years, the process can become significantly more complicated.

How to Complete the Uncontested Probate Process

There are 10 key steps to keep in mind:

Filing the Application for Probate

The process begins when the executor or administrator of the estate files an application for probate with the probate court in the county where the decedent resided at the time of their death. 

Notify Interested Parties

After the application is filed, a notice of the probate filing must be posted at the courthouse for at least 10 days. This will put interested parties on notice before a hearing can be scheduled.

Appointing an Attorney Ad Litem

If the decedent did not leave a will, the court will appoint an attorney ad litem to represent any unknown heirs of the decedent and to confirm the accuracy of the listing of heirs and their shares in the application for probate. The attorney ad litem will perform an independent investigation, such as conducting interviews with the applicant and disinterested witnesses, to ensure all heirs are identified.  

Court Hearing in Texas

After the application has been filed, notification has been given, and the attorney ad litem has done their investigation (if required), the court will schedule a hearing.

At this hearing, the court will verify the facts of the decedent’s death, confirm the will’s validity (if one exists), or confirm the listing of heirs and their interests as they appear in the application. The court will also verify that the applicant meets the qualifications to be appointed as executor/administrator of the estate. 

To qualify as an executor or administrator, an applicant must meet the following requirements:

• Be at least 18 years old
• Be a Texas resident or appoint a resident agent to accept service of process in all actions or proceedings with respect to the estate
• Be of sound mind
• Have not been convicted of a felony
• Must not be a person whom the court finds unsuitable

Appointing the Executor or Administrator

Once the Court validates the facts listed in the application, the judge will formally appoint the executor/administrator. The executor or administrator will receive letters of testamentary or letters of administration which grants them legal authority to act on behalf of the estate. This authority is critical for accessing bank accounts, paying debts, selling property, and managing other estate matters.

Notice to Creditors

A notice to creditors must be published in the county of filing’s local paper within 30 days of the Executor/Administrator being appointed by the court. This notice must state the date that letters of testamentary or administration were issued and the name and address where claims may be sent. 

If a secured creditor exists, meaning a creditor that is using estate property as collateral for a debt, that creditor must receive notice by a qualified delivery method within 60 days of the executor/administrator’s appointment. The delivery method typically used is Certified Mail with Return Receipt Requested. 

Take Inventory of the Estate and Appraise Assets

Within 90 days of appointment, the executor must prepare an inventory of the estate’s assets, including real property, financial accounts, personal belongings, and any other assets the decedent owned. Each item listed is typically assigned a value, often through professional appraisal, so that assets can be fairly distributed. 

Next, a copy of the completed inventory must be provided to each beneficiary or heir. If this is completed within 90 days, the court may allow the executor/administrator to file an Affidavit in Lieu of Inventory certifying that the inventory was completed and provided to all necessary parties. This affidavit will keep the list of assets out of the public record. 

Keep in mind this depends on the county and court where your probate case is located. If the court that’s where your case is located does not allow for an Affidavit in Lieu of Inventory, then the complete inventory must be filed and approved by the court before the executor can proceed with distributing assets.

Paying Debts and Taxes

The executor/administrator is responsible for settling the decedent’s outstanding debts and taxes. Creditors typically have four months to file claims against the estate after the notice to creditors is published. The executor must pay valid claims from the estate’s assets before distributing the remaining assets to beneficiaries.

Distributing Assets to Beneficiaries

Once all debts, taxes, and administrative expenses are paid, the executor can distribute the remaining assets to the beneficiaries/heirs according to the terms of the will or the findings in the judgment determining heirship if there was no will. 

The executor/administrator should keep clear records of all transactions and distributions to prevent misunderstandings or disputes.

Close the Estate

After assets are distributed and debts are settled, the executor may close the estate by filing a final accounting with the court. This document summarizes all estate transactions, from debt payments to distributions. 

However, in Texas, it is not uncommon for the estate to be kept open indefinitely in the event that unexpected assets are discovered in the future.

Conclusion: Final Thoughts on Uncontested Probate in Texas

Navigating uncontested probate in Texas can be slow, frustrating, and complicated. By understanding the process and working with an experienced probate attorney, families can move through the process smoothly and avoid unnecessary complications. It also underscores the importance of having important conversations with older loved ones in advance.

If you believe your loved one’s estate needs to be probated, consider consulting with a probate attorney at Thomas-Walters, PLLC to ensure you understand the specific requirements and best approach for your situation. Our team is committed to providing thorough and efficient assistance for your uncontested probate needs.

Frequently Asked Questions About Uncontested Probate in Texas

Can an estate be settled without probate in Texas?

Some estates do not need to pass through the probate process.  In Texas, there are certain circumstances where an estate can be settled without the need for probate. This is known as “small estate administration” and it applies to estates with a total value of $75,000 or less.

Is there a deadline for filing probate in Texas?

Yes, there is a deadline for filing probate in Texas. The executor of the estate must file an application for probate within four years of the date of death. If this deadline is not met,  the court may not allow the probate process to proceed and the estate may be considered ‘abandoned.’