When a loved one passes away in Texas, do you have to probate the Will?  What if the deceased loved one had named you as an executor, do you have a legal obligation to go to the probate court to start a probate proceeding?


The short answer:  no.  There is no legal obligation in Texas to probate a Will.  Even if you have been named executor (or “executrix”), you have no duty to go through probate.

In fact there are a couple common situations in which you may want to avoid probate, even if the decedent left behind a valid Will:

First, what if a person dies with so few assets that the probate costs would outweigh the value of all the decedent’s property?  In that case, it wouldn’t make sense to probate the Will.  In this situation, if you have the original of the Last Will, give it to the probate court, and they’ll put it in a registry.  You have no legal duty to probate a Will, even if you are family or if you were named executor.

Another common situation is when creditors’ claims far outweigh the value of the decedent’s estate (an “insolvent estate”).  Oftentimes, it just won’t be worth the time, effort, probate costs, and probate attorney fees to start probate proceedings.  In this case, the named executor would be doing all the legwork to get the creditors their money.  In my opinion as a probate attorney, if the creditors want to go through the hassle of probate to get the money they’re owed, then they can initiate probate proceedings.

If creditors do start probate proceedings, and there was a Will naming you as executor, remember that you have no legal obligation to serve as executor if you don’t want to serve.  If you don’t want to serve as executor, it might be best to get in touch with a probate attorney to draft a filing with the probate court letting the court know that you will not be serving.

To recap:  you have no legal obligation to start probate proceedings in Texas, and you don’t have to serve as executor in Texas (even if the Will names you Executor).

Having said all that, in most cases, you’ll want to probate the will, even if not legally required to do so.  In other words, probating the will is important if the deceased person owned anything that needs to be transferred.  Did the decedent have ownership in a car, home, or bank account?  If so, then odds are that you’ll want to probate the will so that you can collect those assets.


Visit www.ShuttLawFirm.com for more information on what to do when someone dies in Texas, what to do if you’re named executor (or executrix), what to do if your mom died without a Will in Texas, or if your dad died without a Will, how the probate process works in Texas, Dallas Probate Court, Collin County Probate Court, or how to deal with an insolvent estate in Texas – or email ishutt@shuttlawfirm.com.  


You can also call Mr. Shutt at (214) 302-8197 for more information on the topic discussed in this blog or to discuss a different legal matter.  Quick phone-calls and brief e-mails are always free at Shutt Law Firm PLLC.  Please consider the Shutt Law Firm if you’re looking for a McKinney lawyer for probate, McKinney Wills Lawyer, McKinney estate planning attorney, power of attorney in McKinney, TX, or guardianship attorney in McKinney area.


DISCLAIMER:  Nothing in this blog post constitutes legal advice.  The information provided herein is merely provided in the spirit of education.  If you have a legal question, you should consult an attorney for your specific legal situation.   Further, nothing in this blog shall be construed to have started an attorney-client relationship.  No such relationship exists until you sign an engagement letter with the Firm.