PROBATE

Uncontested Docket

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Applicants on the uncontested docket must have all necessary filings completed at least two days prior to the docket. Failure to do so will result in removal from the docket. 

Please bring someone familiar with the family history and qualified to give testimony for prove up.  Attorneys are not allowed to give testimony unless the attorney has personal knowledge OTHER than garnered as the attorney (i.e. attorney must be a personal friend or family member).

Proof of Death and Oath should not be e-filed until after the hearing has taken place.

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Confidential Information

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Also, many times the Wills offered for probate have confidential information including social security numbers, bank account numbers and/or minor's DOBs.  A form to address redaction of this information by the Court Clerk may be found here.

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Probate of a Will Outside Four Years

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Please make yourself familiar with Tex. Est. Code § 258.051!  Testimony at the time of hearing will be required to establish the intestate heirs of the decedent to determine if notice was properly given.   If an heir of the decedent dies after the decedent and was not served before death, service should be had pursuant to Tex. Est. Code § 51.057.  If publication is necessary then please file with the court for an appointment of an attorney ad litem pursuant to the Texas Rule of Civil Procedure 244.

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Probate of a Will Not Produced

Please make yourself familiar with Tex. Est. Code § 258.002!  Testimony at the time of hearing will be required to establish the intestate heirs of the decedent to determine if notice was properly given.   If an heir of the decedent dies after the decedent and was not served before death, service should be had pursuant to Tex. Est. Code § 51.057.  If publication is necessary then please file with the court for an appointment of an attorney ad litem pursuant to the Texas Rule of Civil Procedure 244.

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Our appellate courts have helped clear up some confusion with regard to evidence required to admit a non-produced will to probate.  Attorneys often offer witness testimony to prove up a self-proved, non-produced will.  This is because, Texas Est. Code § 256.156(a) directs applicants offering a non-produced will to Tex. Est. Code §§ 256.153 (proof of execution of attested will) & 256.154 (proof of execution of holographic will) creating the  impression that to prove up any non-produced will (whether self-proved or not) such witness testimony is necessary; however, this is not the case.[1]  In re Estate of Sandeford is particularly clear in this regard stating,

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Appellant argues that there was insufficient evidence under Section 256.156(a), which requires that "[a] will that cannot be produced in court must be proved in the same manner as provided in Section 256.153." Est. § 256.156(a). Section 256.153, however, applies to a will "that is not self-proved." Est. § 256.153(a). And a "will that is self-proved . . . is not required to have any additional proof . . . to make the will valid." Est. § 256.152(b). We must decide whether Randy had to meet the requirements of Section 256.153, although he presented a self-proved will.

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The court in Bracewell was presented with the same issue we face now. There, the court concluded that a valid self-proving affidavit attached to a photocopy of a will made it unnecessary for the will's proponent to meet the requirements of Section 256.153.  Bracewell, 20 S.W.3d at 26. We agree. The trial court found that the will was self-proved, and we held that Appellant's arguments in regard to the validity of Elwin's signatures did not invalidate the self-proving affidavit. Therefore, because the will was self-proved, Randy met his burden of proof under Section 256.156(a). We overrule Appellant's challenge under Section 256.156(a).

See Bracewell v. Bracewell, 20 S.W.3d 14, 2000 Tex. App. LEXIS 1210

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NEW:  See also HB 3421 Effective 9/1/25 

Section 256.156, Estates Code, is amended by adding Subsection (c) to read as follows: (c) A copy of a will that cannot be produced in court that includes a copy of a self-proving affidavit is sufficient to make the will self-proved if the self-proving affidavit meets the form and content requirements under Subchapter C, Chapter 251

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Heirships

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Heirship proceedings are required for 401.003 proceedings. Proposed orders for heirship proceedings must comply with the intestate distribution laws. Even if the applicant is claiming the estate consists of only community property, the order must address distribution of separate property as the court is not making a finding as to the character of the property. Applicant must appear with two disinterested witnesses to prove up heirship. All heirs must waive service or in compliance with Texas Estates Code §§ 51.101, 51.051, 51.053, 51.054, 202.051 and 202.054 be served citation via the Montgomery County Clerk. Return receipts will not be accepted from attorneys!!!

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If an heir of the decedent dies after the decedent and was not served before death, service should be had pursuant to Tex. Est. Code § 51.057.  If publication is necessary then please file with the court for an appointment of an attorney ad litem pursuant to the Texas Rule of Civil Procedure 244.
 

Texas Descent and Distribution Charts Link

When an attorney ad litem is ordered paid, the Texas Supreme Court has declared the order must be a separate order and not a part of the Heirship order. Misc. Docket No. 94-9143 (Sept. 21, 1994).

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Muniments

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If the decedent applied for and received Medicaid benefits on or after March 1, 2005, then the Medicaid Estate Recovery Program may have a claim against the estate, thus affecting a muniment of title application. A certificate attesting to the status of a MERP Class 7 probate claim must therefore accompany the probate proceedings.  If the claim has been waived, then please include the following sentence in the Order admitting the will to probate:  “The Texas Department of Aging and Disability Services has waived any claim against the Decedent’s estate.”

If the decedent did not apply for and receive Medicaid benefits on or after March 1, 2005, then please include the following sentence in the Application, Proof of Death and Other Facts and the Order:  "The Decedent did not apply for and receive Medicaid benefits on or after March 1, 2005."

Authorization and MERP Certification Form and instructions - Click here!

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Representing Yourself in Probate Court

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Kankonde v. Mankan, No. 08-20-00052-CV, 2020 WL 5105806, at 2 (Tex. App. - El Paso Aug. 31, 2020, no pet.) (mem. op.).

Steele v. McDonald, 202 S.W.3d 926 (Tex. App. – Waco, 2006)

Suday v. Suday, 2025 Tex. LEXIS 586, 68 Tex. Sup. J. 1458, 2025 LX 175404, 2025 WL 1774459

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Handbooks

Independent Administration Handbook
Dependent Administration Handbook
Independent Administration Handbook (Spanish)
Dependent Administration Handbook (Spanish)
 

Forms

Request for Letters
Affidavit in Lieu of Inventory

Bond
PDF for Accountings
PDF for Final Accounting
Excel Spreadsheet for Inventory
Sample Bank Certification Form