Texas

Texas probate runs through the statutory probate courts in the largest counties and the
county courts elsewhere, under the Texas Estates Code. The executor applies for
letters testamentary. What makes Texas unusual is how little of the process the court
then supervises.

Independent administration

Where the will provides for it — and most Texas wills do — the executor serves as an
independent executor, filing an inventory and then administering the estate with almost
no further court involvement: no court approval to sell assets, no annual accountings. It
is the cheapest and fastest form of administration in the United States, and it is the
single best reason to have a properly drafted Texas will. Where the will is silent, all the
beneficiaries can still agree to it.

Muniment of title

Texas alone offers this. Where the estate owes no unpaid debt other than one secured by
a lien on real estate, or there is no need for administration, the court can admit the will
purely as a muniment of title — proof of who now owns what. No executor is appointed
and no notice to creditors is published. For an estate that is a house and a bank account,
it can be over in a single hearing.

The four-year deadline

A will generally cannot be admitted to probate more than four years after death
(§ 256.003) unless the applicant proves they were not in default in failing to file sooner.
Letters testamentary will not issue at all if the application came in after the fourth
anniversary. Texas is far stricter here than most states — do not let a will sit in a drawer.

Before distributing

Texas is a community property state, which changes what is even in the estate. There is
no state estate or inheritance tax, but the final federal return still has to be filed.

A Texas will can be attested — in writing, signed by the testator, and signed by two
credible witnesses aged 14 or older in the testator's presence — or holographic.

Holographic wills are valid here

A will wholly in the testator's own handwriting and signed by them needs no witnesses
at all in Texas. Better still, § 251.107 lets a holographic will be made self-proved
during the testator's lifetime by attaching the testator's own notarised affidavit — no
witnesses to track down years later. That option is unusual and worth knowing about.

Valid is still not the same as wise. A handwritten will cannot easily set up a trust for a
young beneficiary, routinely omits the residue, and — critically for Texas — may not
contain the language that creates an independent administration. A homemade will can cost
the estate the very thing that makes Texas probate cheap.

The self-proving affidavit

For an attested will, attach a self-proving affidavit signed before a notary. Without
it, someone has to locate a witness after the death and get them to testify. It is a page of
paper that removes an entire step.

Witnesses who inherit

A gift to a witness is void unless the will can be proved by other witnesses, or the witness
would have inherited anyway on intestacy. Use two disinterested witnesses.

Also

• Say expressly that the executor is to serve independently and without bond.
• Name an alternate executor.
• Texas is a community property state — a will only controls the deceased's half of the
  community estate plus their separate property.
• Review after a marriage, divorce, birth or a move to Texas from another state.

Yes, and Texas sets the figure by statute — but the statute is narrower than the
headline number suggests, and this is where most summaries go wrong.

The five per cent rule, accurately

Under § 352.002 an executor who has managed the estate properly is entitled to 5% of all
sums actually received in cash and 5% of all sums actually paid out in cash. The total may
not exceed 5% of the gross fair market value of the estate subject to administration.

What is excluded — and it is a lot

The commission does not apply to:
- Cash on hand at the date of death, or money already sitting in a bank or brokerage
account, including cash equivalents.
- The proceeds of a life insurance policy.
- Cash paid out to an heir or beneficiary in that capacity.

Read those together and the practical effect is stark: an estate consisting of a bank
account distributed to the children generates almost no statutory commission, because
the money was on hand at death and it was paid out to beneficiaries as beneficiaries. The
commission is really compensation for money the executor has to go and collect, and for
debts and expenses they have to pay.

When the statute is not enough

Where the statutory commission is unreasonably low for the work actually done, the court may
allow further reasonable compensation. Where it is excessive, the court may reduce it.

If the will sets the figure

The will governs, and a well-drafted Texas will usually does set it — precisely because
§ 352.002 produces odd results on ordinary estates.

Tax

Commission is taxable income to the executor. An inheritance is not.

A Texas executor is reimbursed from the estate for the necessary expenses of
administering it, separately from any commission. Given how little the statutory commission
often yields, careful expense claiming matters more here than in most states.

Normally claimable

• Funeral and burial or cremation, and a reasonable reception.
• Court filing fees, citation and publication costs, certified death certificates.
• Attorney's fees for the probate application and for defending the will if it is
  contested — recoverable from the estate where the executor acted in good faith.
• Accountant's fees, and preparation of the final Form 1040 and any Form 1041.
• Appraisals of real property, mineral interests, vehicles, livestock, firearms and
  collections.
• Bond premiums, where the will did not waive bond.
• Carrying costs on estate property until sale: insurance, property tax, utilities, security,
  lawn care, and pool or well maintenance.
• Cleaning, clearing, storing, moving and shipping contents.
• Travel on estate business at a reasonable rate — Texas distances make mileage a real line
  item.

Normally not claimable

• The executor's lost wages, meals near home, or personal spending. That is what the
  commission covers.
• Costs run up for one beneficiary's convenience rather than the estate's.
• Improvements beyond preparing a property for sale as it stands.
• Anything without a receipt.

The rule that decides it

Open an estate bank account under the estate's own taxpayer identification number and run
everything through it. Independent administration means nobody is checking your arithmetic
as you go — which is a freedom right up until a beneficiary demands an accounting, and then
the contemporaneous log is the whole defence.

Most Texas estates are handled by a family member serving as independent executor, and the
system is designed for exactly that. A bank trust department or an attorney serving as
executor is worth the cost in narrower circumstances than in other states.

Consider a professional when

• The estate holds mineral interests, royalties or working interests. Oil and gas title,
  division orders and depletion are their own specialism, and getting them wrong is
  expensive and permanent.
• There is a ranch, farm or operating business that has to keep running.
• Community property is tangled — a long marriage, a prior marriage, separate property
  that has been commingled for decades.
• A will contest looks likely. Independent administration gives the executor wide powers
  and correspondingly wide exposure if they use them while a contest is brewing.
• A beneficiary is a minor or incapacitated, so a trust runs for years and a guardian ad
  litem may be appointed.
• The intended executor lives out of state. Texas permits it, but a non-resident executor
  must appoint a resident agent for service of process, and the practical burden is real.

What it costs

Corporate fiduciaries charge a negotiated percentage with a minimum annual fee that makes
modest estates uneconomic. Attorneys usually bill hourly. Get either in writing.

Middle ground

Appoint a family member as independent executor and let them retain a probate attorney at
the estate's expense. In Texas this is both the norm and, for most estates, plainly correct —
the attorney handles one hearing and the inventory, and the family member does the rest.

An executor who does not want the job can decline before qualifying. Once they have
qualified and begun acting, resigning requires a court order and an accounting.