Whenever I describe my area of legal practice as “probate,” I am often met with blank stares, or polite nods of the head, followed by looks of confusion. For some reason, the term “probate” has not made its way into our conventional vernacular, and so instead, I became accustomed to describing my work as “inheritance law.” While most people understand the meaning of “inheritance,” it is an oversimplification of what probate is.
According to Merriam-Webster’s dictionary, probate is “the action or process of proving before a competent judicial authority that a document offered for official recognition and registration as the last will and testament of a deceased person is genuine,” or “the process of administering an estate.”
ChatGPT expands the definition of “probate,” and describes it as the court-supervised legal process of validating a will, appointing an executor, identifying and appraising assets, paying the deceased person’s debts and taxes, and distributing the remaining property to beneficiaries or heirs according to the will or state law.
Put simply, probate is as the formal process for transferring ownership/title of a deceased person’s assets to his or her intended beneficiaries as set forth in a last will and testament, or natural heirs in accordance with state law. In practice, probate generally also refers to matters involving trusts.
In Texas, depending on which county the deceased person resided, probate cases are handled by different courts. In smaller counties (i.e., Delta and Leon), the Constitutional County Courts handle probate matters, and in other counties, such as Fort Bend, the probate courts are called County Courts at Law. For larger counties such as Harris, Dallas, and Travis, there are specialized Statutory Probate Courts.
Regardless of the name of the Court, probate cases are governed by the Texas Estates Code which is a dedicated body of law drafted to address issues that are niche to estates, guardianships, fiduciary administration, and to a certain extent, trusts.
But what exactly is probate? When and why is it necessary? When someone dies leaving a last will and testament, the will must be legally validated before its terms become operative. Just because someone signed a document entitled “Last Will and Testament” does not mean that document is considered a valid Will to pass property after death. In fact, according to the Texas Estates Code, the court must conduct a formal hearing to determine whether the purported document was executed in accordance with the formal requirements set forth in the Estates Code to make a valid will, whether the person who signed the purported will (also referred to as the “testator”) had the requisite capacity to sign a will, whether the testator was unduly influenced to sign the will, and/or whether the will is the product of fraud.
Once the Court is satisfied that the Will is valid, it must also appoint an executor to administer the estate. Typically, the testator nominates an executor in the Will, but if no executor is named in the Will, the Estates Code describes who is eligible to serve in that role and in what order of priority.
Probate is not always necessary. In fact, probate is only required to transfer ownership or title of assets that are not otherwise designated to pass to specific beneficiaries. For example, bank accounts that have a pay on death beneficiary or are titled with rights of survivorship, are not subject to the probate process. Similarly, insurance or annuity policies that have beneficiaries named, and assets owned by a trust, are exempt from probate.
What happens if after conducting a hearing (or trial), the will is determined to be invalid? Or what if someone dies without leaving a will? In the absence of a valid will, a deceased person’s assets pass to their next of kin in accordance with relevant state law – often referred to as “intestate succession.” Because Texas is a community property state, if the deceased person is married at the time of death, their assets are separated into 2 categories: community property and separate property. Separate property refers to assets acquired by the deceased prior to marriage, while community property refers to assets that were acquired during marriage, regardless of whose name is on the title or who earned the money (with exceptions for gifts, and inheritances). Chapter 201 of the Texas Estates Code describes the laws of inheriting community vs. separate property.
If a deceased person’s assets pass via the laws of intestate succession, the Court is tasked with appointing an administrator (versus an executor, who is typically appointed by Will) to administer the estate.
Curious what happens after an executor and/or administrator is appointed? Stay tuned for What is Probate? Part II, coming April 2026.
Because probate laws are technical and the circumstances surrounding someone’s passing varies from case to case, it is important to consult with an attorney who specializes in probate law to help you navigate the process. Feel free to reach out to Romano & Sumner today for a free consultation.
Romano & Sumner, PLLC
