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Living trust or probate

Texas

A funded revocable living trust lets the successor trustee handle assets titled to the trustee. Property left in your own name can still be a probate matter in Texas.

CourtCounty court, county court at law, or statutory probate court

Where the estate is opened.

Small-estate figure$75,000

Only if the statute's conditions are met. Read the section below.

TaxNo current estate tax

See the tax section for the exemption or the repeal.

SpousesCommunity property

See the property section for the statute's words.

Living trust or probate

A revocable living trust holds assets you title in the trustee's name. You can serve as trustee while you are able.

At death, the successor trustee handles those assets. Property you leave in your own name can still go through the probate court. A pour-over will sends leftover assets into the trust, and those leftover assets may pass through probate first.

The probate path

In Texas, the estate is opened in the County court, county court at law, or statutory probate court.

All probate proceedings must be filed and heard in a court exercising original probate jurisdiction. The county court has that jurisdiction if the county has no statutory probate court or county court at law exercising original probate jurisdiction. A county court at law and the county court have concurrent original jurisdiction if there is no statutory probate court. A statutory probate court has original jurisdiction where one exists. A person capable of making a will may provide that no other action shall be had in the probate court than the probating and recording of the will and the return of any required inventory, appraisement, and list of claims. After an independent administration is created and the inventory, appraisement, and list of claims has been approved, or an affidavit in lieu has been filed, further action may not be had in the probate court except where the Estates Code specifically and explicitly provides for some action in the court.

Source: Texas Estates Code section 401.001

Fees

In Texas, probate compensation is a statutory maximum.

Estates Code section 352.002 entitles an executor, administrator, or temporary administrator whom the court finds to have taken care of and managed the estate in compliance with the title to a five percent commission on all amounts actually received or paid out in cash. That commission may not exceed, in the aggregate, more than five percent of the gross fair market value of the estate subject to administration. It is not allowed for receiving funds that were on hand or held in a financial institution or brokerage firm at death, for collecting life insurance proceeds, or for paying cash to an heir or legatee in that capacity. Section 352.003 allows reasonable compensation instead if the representative manages a farm, ranch, factory, or other business of the estate, or if the section 352.002 compensation is unreasonably low. Section 352.051 allows, on proof satisfactory to the court, reasonable attorney's fees necessarily incurred in connection with the proceedings and management of the estate. There is no percentage schedule for ordinary attorney's fees.

Source: Texas Estates Code section 352.002

Calculator

Probate cost

The result is the statutory schedule on this page applied to the amount you enter.

a figure you want to compare with the small-estate amount on this page

Small estate

Texas's small-estate figure on this page is $75,000 when the statute's conditions are met.

Under Estates Code section 205.001, the distributees of a decedent who dies intestate are entitled to the estate without waiting for appointment of a personal representative, to the extent the estate assets, excluding homestead and exempt property, exceed the known liabilities, excluding liabilities secured by homestead and exempt property, if 30 days have elapsed since the death, no petition for appointment of a personal representative is pending or has been granted, the value of the estate assets on the date of the affidavit, excluding homestead and exempt property, does not exceed $75,000, an affidavit meeting section 205.002 is filed with the clerk of the court that has jurisdiction and venue, the judge approves it, and the distributees comply with section 205.004. The affidavit must be sworn to by two disinterested witnesses and by each distributee who has legal capacity. Except as provided for a homestead that is the only real property in the estate, the chapter does not transfer title to real property.

Source: Texas Estates Code section 205.001

Estate or inheritance tax

Texas has no current estate tax on the page linked below.

The Comptroller STAR record for Tax Code Chapter 211 is labeled Inheritance Tax (repealed 09/01/2015). The Comptroller's September 2015 Fiscal Notes states that the 2015 Legislature repealed the state inheritance tax. Current Estates Code section 124.001 defines estate tax to include the inheritance tax imposed by former Chapter 211, Tax Code. No current Texas estate or inheritance tax rate is stated on these pages.

Source: Texas Comptroller STAR, Inheritance Tax (repealed 09/01/2015)

Property of spouses

Spouses in Texas hold community property.

Family Code section 3.002 states that community property consists of the property, other than separate property, acquired by either spouse during marriage. Section 3.001 defines a spouse's separate property as the property owned or claimed by the spouse before marriage, the property acquired by the spouse during marriage by gift, devise, or descent, and the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage. Section 3.003 provides that property possessed by either spouse during or on dissolution of marriage is presumed to be community property.

Source: Texas Family Code section 3.002

Questions

The answers use the same statute and court pages as the sections above.

Does a living trust avoid probate in Texas?

A revocable living trust holds the assets you title in the trustee's name. The successor trustee handles those assets. Property still titled in your own name can be a probate matter. A pour-over will can send leftover assets into the trust, and those leftover assets may still pass through probate first.

What is the small-estate procedure in Texas?

Under Estates Code section 205.001, the distributees of a decedent who dies intestate are entitled to the estate without waiting for appointment of a personal representative, to the extent the estate assets, excluding homestead and exempt property, exceed the known liabilities, excluding liabilities secured by homestead and exempt property, if 30 days have elapsed since the death, no petition for appointment of a personal representative is pending or has been granted, the value of the estate assets on the date of the affidavit, excluding homestead and exempt property, does not exceed $75,000, an affidavit meeting section 205.002 is filed with the clerk of the court that has jurisdiction and venue, the judge approves it, and the distributees comply with section 205.004. The affidavit must be sworn to by two disinterested witnesses and by each distributee who has legal capacity. Except as provided for a homestead that is the only real property in the estate, the chapter does not transfer title to real property.

How are probate fees set in Texas?

Estates Code section 352.002 entitles an executor, administrator, or temporary administrator whom the court finds to have taken care of and managed the estate in compliance with the title to a five percent commission on all amounts actually received or paid out in cash. That commission may not exceed, in the aggregate, more than five percent of the gross fair market value of the estate subject to administration. It is not allowed for receiving funds that were on hand or held in a financial institution or brokerage firm at death, for collecting life insurance proceeds, or for paying cash to an heir or legatee in that capacity. Section 352.003 allows reasonable compensation instead if the representative manages a farm, ranch, factory, or other business of the estate, or if the section 352.002 compensation is unreasonably low. Section 352.051 allows, on proof satisfactory to the court, reasonable attorney's fees necessarily incurred in connection with the proceedings and management of the estate. There is no percentage schedule for ordinary attorney's fees.

Does Texas tax an estate or an inheritance?

The Comptroller STAR record for Tax Code Chapter 211 is labeled Inheritance Tax (repealed 09/01/2015). The Comptroller's September 2015 Fiscal Notes states that the 2015 Legislature repealed the state inheritance tax. Current Estates Code section 124.001 defines estate tax to include the inheritance tax imposed by former Chapter 211, Tax Code. No current Texas estate or inheritance tax rate is stated on these pages.

How does Texas treat property of spouses?

Family Code section 3.002 states that community property consists of the property, other than separate property, acquired by either spouse during marriage. Section 3.001 defines a spouse's separate property as the property owned or claimed by the spouse before marriage, the property acquired by the spouse during marriage by gift, devise, or descent, and the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage. Section 3.003 provides that property possessed by either spouse during or on dissolution of marriage is presumed to be community property.

Sources

These are the statute and court pages used above.

TaxFreeTrusts

TaxFreeTrusts writes the guides on this site and drafts the will and living trust packets at the prices posted on the page. Dollar figures in the guides are copied from the statute, IRS page, or court site linked beside them.