Texas Estates Code: Intestacy, Probate Options, and Guardianship

The Texas Estates Code is the state statute that governs what happens to a person’s property after death and how courts protect adults and minors who cannot care for themselves. It took effect on January 1, 2014, replacing the older Texas Probate Code with a reorganized structure that kept the same legal rules but arranged them more logically. The code sets out who inherits when there is no will, what makes a will valid, how probate works, how creditors get paid, and when a court can appoint a guardian.

Who Inherits When There Is No Will

Chapter 201 controls intestate succession. The shares depend on two questions: whether the property is community or separate, and who survived the deceased.

Community Property

If every child of the deceased is also a child of the surviving spouse, the surviving spouse keeps the entire community estate.¹ If the deceased had children from another relationship, the surviving spouse keeps only their own half of the community estate, and the deceased spouse’s half passes to their children or their descendants.

Separate Property

Separate property splits by category. For personal separate property (bank accounts, vehicles, investments), the surviving spouse receives one-third and the children split the remaining two-thirds.¹ For real estate, the surviving spouse receives a life estate in one-third of the land, meaning the right to use it during their lifetime, while the children receive full ownership of the rest plus the remainder interest in the spouse’s one-third after the spouse dies.

With no children or descendants, the inheritance moves outward. If both parents survive, each takes half. If one parent survives, that parent takes half and the siblings split the other half. If neither parent survives, siblings and their descendants inherit.¹ These defaults are rigid. Anyone who wants a different result needs a will.

What Makes a Will Valid in Texas

Chapter 251 recognizes two kinds of wills: attested (typewritten or printed) and holographic (handwritten). Missing even one requirement can invalidate the whole document.

You must be of sound mind and meet at least one of the following: 18 or older, currently or previously married, or a member of the U.S. armed forces or maritime service.² The document must clearly show you intend it to control what happens to your property after you die.

An attested will must be signed by you in the presence of at least two credible witnesses who are at least 14 years old, and each witness must sign in your presence. A holographic will skips the witness requirement, but the entire document must be in your handwriting and signed by you. Holographic wills are simpler but riskier, because no witnesses can confirm your intent if the document is challenged later.

A self-proving affidavit is optional but strongly recommended. You and the witnesses sign a sworn statement before a notary confirming the formalities were followed. When attached, the probate court can accept the will without the witnesses appearing in person, which can save months if a witness has moved or died. The affidavit doesn’t make the will valid; it makes proving the will easier.

The Four-Year Deadline to Probate a Will

This is the deadline families most often miss. A will generally cannot be admitted to probate after the fourth anniversary of the person’s death unless the applicant proves they were not at fault for failing to file sooner.³ Even if a court does admit a will after four years, it cannot issue letters testamentary unless the application was filed before that anniversary.

The practical consequence is severe. Without a probated will and without a valid excuse, the estate passes under intestate succession as if the will never existed. Buyers who purchased property from the heirs in good faith after the four-year window keep their title even if a will surfaces later.³ If a loved one’s will is sitting in a drawer, get it to a probate court.

Which Type of Probate Fits the Estate

Texas offers several paths, and the right one can mean the difference between months and years in court.

Independent Administration

Independent administration is the most common and efficient option. It is available when the will authorizes it or when all heirs unanimously agree. Once the court appoints an independent executor and approves an inventory of assets, the executor pays debts, sells property, and distributes assets without filing motions for each transaction. Fees stay lower and the executor can act quickly.

The executor is still a fiduciary and owes beneficiaries loyalty and careful management. Courts can remove an executor who mismanages the estate and can order repayment of losses caused by commingling funds, taking unreasonable fees, or reckless investments.

Dependent Administration

When heirs are fighting, when there is no will and the parties can’t agree on independent administration, or when creditor issues are complex, the court may require dependent administration. The administrator must obtain a court order before spending estate funds or selling non-cash assets. Every significant action requires an application, a hearing, and a signed order. It is slower and more expensive, and it exists to protect beneficiaries who cannot protect themselves.

Muniment of Title

Probate as a muniment of title is streamlined for estates with no unpaid debts other than debts secured by real estate. The application must state there is no necessity for administration.⁴ No executor is appointed. The court validates the will and issues an order that beneficiaries use to transfer titles on real estate, vehicles, bank accounts, and other assets. If unsecured debts exist, this option is not available.

Small Estate Affidavit

Chapter 205 provides a way to skip probate entirely for smaller estates. The total value of assets, excluding the homestead and exempt property, cannot exceed $75,000. At least 30 days must have passed since death, and no one can have already been appointed personal representative. The estate’s debts, not counting liens on the homestead, must not exceed the value of the non-exempt assets.

The affidavit must list all known assets and liabilities, name every heir with addresses and relationships, and include a legal description of any homestead. All heirs and two disinterested witnesses sign under oath. Once a judge approves it, heirs can claim bank accounts, transfer vehicle titles, and handle similar transactions. One limitation matters: a small estate affidavit can transfer homestead real property, but generally cannot be used to transfer other real estate.

Homestead and Family Allowance

What counts as homestead and exempt property matters because those categories sit outside the $75,000 small-estate threshold and outside the reach of most creditors. Under the Texas Property Code, a homestead is the property you own and occupy as your primary residence. For families in an urban area, the homestead can include up to 10 acres. In rural areas, a family can claim up to 200 acres and a single adult up to 100 acres.⁵ The homestead generally cannot be sold to pay the deceased person’s unsecured debts and passes to surviving family outside the normal distribution process.

The court also sets a family allowance for the surviving spouse, minor children, and adult incapacitated children of the deceased. It covers maintenance for one year after death and takes priority over most creditor claims.⁶ A surviving spouse with sufficient separate property is not eligible.

How Creditors Get Paid and in What Order

Debts don’t vanish at death. The executor or administrator must notify known creditors and typically publish notice for unknown creditors, who then have a limited window to file formal claims.

When the estate can’t pay everyone, Section 355.102 sets a strict priority. No lower class receives anything until higher classes are paid in full:

Class 1: Funeral expenses and expenses of the last illness, each capped at $15,000 for a reasonable amount approved by the court.
Class 2: Administration expenses, including fees for preserving and managing the estate.
Class 3: Secured claims, paid from the proceeds of the property securing the debt.
Class 4: Delinquent child support and child support arrearages.
Class 5: Certain state and local taxes, penalties, and interest.
Class 6: Costs of confinement established by the Texas Department of Criminal Justice.
Class 7: Repayment of Medicaid payments made by the state.
Class 8: All other unsecured claims.

Most ordinary creditors, including credit card companies and medical providers with bills exceeding the Class 1 cap, fall into Class 8.⁷ If the money runs out before Class 8, those creditors receive nothing. Heirs are generally not personally responsible for the deceased person’s debts unless they co-signed or guaranteed the obligation.

Executor Compensation

Texas law entitles an executor or administrator to a commission of five percent on all cash amounts actually received and paid out on behalf of the estate. The commission is calculated on cash handled, not on total asset value. A $400,000 house that transfers directly to a beneficiary without being sold generates no commission; the proceeds from selling that house would.

This compensation falls within Class 2 administration expenses, so the executor is paid ahead of most creditors. An executor who takes fees beyond what is reasonable and justified can be challenged by beneficiaries and ordered to return the excess. Independent executors who are also beneficiaries sometimes waive compensation to preserve more value for the family.

Taxes the Estate Still Owes

Texas does not impose its own estate or inheritance tax, but federal obligations still apply.

Final Income Tax Return

The executor or personal representative must file the deceased person’s final federal income tax return covering income from January 1 through the date of death. The return is due by April 15 of the following year, with extensions available. A surviving spouse can file a joint return for the year of death if they did not remarry during that year.⁸ If no surviving spouse or court-appointed representative exists, whoever files must attach Form 1310 to claim any refund.

Federal Estate Tax

The federal estate tax applies only to estates above the basic exclusion amount. For 2026, the exclusion is $15,000,000, as increased by the One, Big, Beautiful Bill Act signed into law on July 4, 2025.⁹ Married couples can effectively double this amount through portability, which transfers a deceased spouse’s unused exclusion to the surviving spouse. Estates above the exclusion must file Form 706, generally due nine months after the date of death. The vast majority of Texas estates fall well below the threshold and owe no federal estate tax.

Guardianship for Adults and Minors Who Cannot Decide for Themselves

Title 3 of the Estates Code governs guardianship, the process for appointing someone to make decisions for a person who cannot manage their own affairs. Texas treats guardianship as a last resort and requires the court to consider less restrictive alternatives first.

What the Court Must Find

Before appointing a guardian, the court must find by clear and convincing evidence that the proposed ward is incapacitated, that a guardianship is in the person’s best interest, and that alternatives have been considered and found not feasible.¹⁰ The court must also determine whether the person is totally without capacity or lacks capacity in only some areas, and must specifically address whether the person can decide where to live, whether they can vote, drive, or marry.

The application must include a physician’s letter or certificate based on an examination performed no earlier than 120 days before filing. The letter must describe the nature and severity of the incapacity, evaluate the person’s ability to handle finances, make medical decisions, and perform daily activities, and state whether the condition may improve.¹¹ That detail lets the court strip away only the rights the person genuinely cannot exercise.

Ongoing Court Oversight

Guardianship is not a one-time event. Each year, a guardian of the person must file a detailed sworn report covering the ward’s living situation, physical and mental health, medical treatment, and daily activities.¹² A guardian of the estate must also file annual accountings of money received and spent. If the ward’s condition improves, the court can modify or terminate the guardianship.

Alternatives That Can Avoid a Guardianship

Because guardianship removes fundamental rights from a living person, Chapter 1357 provides a formal alternative called a supported decision-making agreement. An adult with a disability can appoint a supporter who helps them access information, understand options, and communicate decisions, without the supporter having authority to make decisions for them.¹³ The agreement can cover everyday needs like food and shelter, health care, and finances.

Other alternatives include a durable power of attorney for finances, a medical power of attorney for health care decisions, and a directive to physicians for end-of-life preferences. All of these must be signed while the person still has capacity. Once someone has already lost the ability to understand and sign legal documents, guardianship may be the only option left.

1
State of Texas. Texas Estates Code Chapter 201 – Descent and Distribution
2
State of Texas. Texas Estates Code Section 251.001 – Who May Execute Will
3
State of Texas. Texas Estates Code Section 256.003 – Period for Admitting Will to Probate
4
State of Texas. Texas Estates Code Section 257.051 – Contents of Application for Probate as Muniment of Title
5
State of Texas. Texas Property Code Section 41.005
6
State of Texas. Texas Estates Code Section 353.101 – Family Allowance
7
State of Texas. Texas Estates Code Section 355.102 – Classification of Claims
8
Internal Revenue Service. Filing a Final Federal Tax Return for Someone Who Has Died
9
Internal Revenue Service. Whats New – Estate and Gift Tax
10
State of Texas. Texas Estates Code Section 1101.101 – Findings Required
11
State of Texas. Texas Estates Code Section 1101.103 – Information Letter or Certificate
12
State of Texas. Texas Estates Code Section 1163.101 – Annual Report Required
13
State of Texas. Texas Estates Code Section 1357.056 – Form of Agreement