A Texas Last Will and Testament must be probated within four years from the death of the testator. Some exceptions apply to this rule. §73
Possession of the Will
The person who has custody of a Texas Will must deliver the original to the appropriate court upon receiving notice of the testator’s death. Penalties apply for breach. §75
Application for Probate
Any interested person is entitled to apply to the court for probate of a Texas Will. The application can ask for one or more of the following orders:
- That the Will be admitted to probate;
- Appointment of the executor if one is named in the Will;
- Appointment of an administrator if no executor is designated in the Will or if the named person is unwilling or unable to act. §76
Who can act as personal representative?
The person appointed by the court under letters testamentary or letters of administration. The order of priority is:
- The person named as executor in the Texas Will;
- The surviving husband or wife;
- The principal beneficiary;
- Next of kin;
- A creditor of the deceased;
- Any person who applies for the role and who is of good character and resides in the County; or
- Any other person who is not disqualified under statute. §78
Proof of the Will
Probate is granted once the Texas Will is proved. This can be easy if there are no objections and the Will is already self-proved through affidavits. Otherwise, sworn testimony or affidavit of one or more of the attesting witnesses to the Will is required. S84
Loss or Destruction of the Will
If the original has been lost or destroyed, it may still be proved in court in the same manner as an existing Will. In addition, the cause of the Will’s non-production must be proved.
The court must be satisfied that the Texas Last Will and Testament cannot be produced by any reasonable diligence. Also, the contents must be substantially proved by a credible witness who has read the Will or heard it read. §85
Order for Probate
Once the court is satisfied with all necessary requirements, it enters an order of probate. §89
Texas Estate Tax
Texas does not require an inheritance tax return to be filed if the death occurred on or after January 1, 2005.
For deaths prior to this date, a return needs to be filed with the Texas Comptroller of Public Accounts if a United States Estate tax return must be filed.