An asset goes through Texas probate when it is titled solely in the decedent's name and has no beneficiary designation and no survivorship rights. Real estate, individual bank accounts, vehicles and personal property are the usual candidates. Life insurance, retirement accounts, POD accounts and trust property pass outside probate entirely.
The two categories
| Goes through probate | Skips probate |
|---|---|
| Home or land titled in the decedent's name alone | Property with a recorded transfer on death deed |
| Bank account with no POD beneficiary | Payable-on-death and transfer-on-death accounts |
| Brokerage account held individually | IRAs, 401(k)s and pensions with a living beneficiary |
| Vehicles, boats and trailers titled individually | Life insurance with a named beneficiary |
| Furniture, jewelry, tools, collections, firearms | Assets held in a funded living trust |
| A business interest owned individually | Property held with a valid right of survivorship agreement |
| Money owed to the decedent | Employer death benefits paid to a named beneficiary |
Real estate is usually the deciding factor
If the decedent owned Texas real estate in their own name, you will almost certainly need a probate proceeding. Title companies will not insure a sale out of a dead person's name without either a probate order, a muniment of title, or an heirship judgment. Buyers' lenders will not close without title insurance. In practice, no probate means no sale.
This is also where delay does its damage. Past four years, admitting the will to full probate requires proving the applicant was not in default for waiting — a burden that is met sometimes and missed often. A muniment of title may still pass the property where there are no unpaid debts, but the family has traded a routine filing for one that has to be argued.
Special situations worth knowing
- Homestead. A surviving spouse or minor child may have the right to occupy the homestead for life, regardless of who inherits the underlying title. This right is powerful and often decisive in family disputes.
- Exempt property. Texas sets aside certain household goods, vehicles, tools of the trade and personal items for the surviving spouse and minor children, protected from most creditors.
- Vehicles. The Texas Department of Motor Vehicles has its own heirship affidavit that can transfer a vehicle in some situations without probate.
- Small bank accounts. Some institutions release modest balances on an affidavit. Policies vary widely, and larger banks rarely do it.
- Out-of-state real estate. Texas probate does not transfer land in another state. That usually requires an ancillary proceeding where the property sits.
Common questions
Do jointly owned accounts avoid probate in Texas?
What about digital assets and cryptocurrency?
Does a car have to go through probate?
This page is general information about Texas law, not legal advice, and reading it does not create an attorney-client relationship. Every estate is different. For advice about your situation, call 713-588-5914 for a free consultation.
Questions about your situation?
Call for a free phone consultation. We'll assess what you're dealing with and give you a clear plan — no obligation, evenings and weekends available.
713-588-5914