EstateTexas estate planning rules
Last reviewed Oct 29, 2026 · How we research
Law tags:State lawFederal lawFederal + state
At a glance
At a glance| Question | Answer | |
|---|---|---|
| Probate always required? | No. Assets that are jointly owned, have a named beneficiary, or are in a trust or TOD deed usually skip probate. | Details |
| Small-estate / simplified option? | Small estate affidavit for intestate estates up to $75,000 (excluding homestead and exempt property), after 30 days. | Details |
| TOD deeds allowed? | Yes | Details |
| State estate tax? | No (Texas Comptroller) | Details |
| State inheritance tax? | No | Details |
| Must file will with court? | No general filing deadline, but timing matters. | Details |
| Medicaid look-back | 60 months (federal rule, applied by the state) | Details |
| Holographic (handwritten, unwitnessed) wills valid? | Yes, with no witnesses needed (Estates Code § 251.052). | Details |
Transfer on death deed allowed? Yes. Texas allows transfer on death deeds under the Texas Real Property Transfer on Death Act. The deed must be recorded in the county deed records before death, and it cannot be signed by an agent under a power of attorney.
Wills: Two witnesses, or none if wholly handwritten. A notarized self-proving affidavit is optional.
Probate: Small estate affidavit for intestate estates up to $75,000 (excluding homestead and exempt property), after 30 days.
WillsState law
Wills- A will must be in writing, signed by the testator, and attested by two or more credible witnesses over age 14, unless it is wholly in the testator’s handwriting. Source: Tex. Estates Code § 251.051–.052, checked Oct 29, 2026.
- A handwritten (holographic) will needs no witnesses. Source: Tex. Estates Code § 251.052, checked Oct 29, 2026.
- A will can be made self-proved with an affidavit signed before an officer authorized to administer oaths. Source: Tex. Estates Code § 251.101–.107, checked Oct 29, 2026.
Financial power of attorneyState law
Financial power of attorney- Texas provides a Statutory Durable Power of Attorney form. Source: Tex. Estates Code § 752.051, checked Oct 29, 2026.
- A durable power of attorney must be signed by the principal, include durability wording (for example “not affected by subsequent disability or incapacity”), and be acknowledged before a notary. No witnesses are required. Source: Tex. Estates Code § 751.0021, checked Oct 29, 2026.
Medical power of attorney & advance directiveState law
Medical power of attorney & advance directiveOfficial form/source: Texas HHS – Medical Power of Attorney form.
- Texas HHS publishes the official Medical Power of Attorney Designation of Health Care Agent form in English and Spanish. Source: Texas HHS, checked Oct 29, 2026.
- The medical power of attorney must be signed before two qualified witnesses (at least one independent of the agent, family, heirs and attending physician) or acknowledged before a notary. Source: Tex. Health & Safety Code §§ 166.003, 166.154, checked Oct 29, 2026.
Transfer on death deeds: YesState law
Transfer on death deeds: YesTexas allows transfer on death deeds under the Texas Real Property Transfer on Death Act. The deed must be recorded in the county deed records before death, and it cannot be signed by an agent under a power of attorney.
- An individual may transfer real property effective at death by a transfer on death deed; it must be recorded before death in the county where the land is. Source: Tex. Estates Code §§ 114.051, 114.055, checked Oct 29, 2026.
- A TOD deed may not be created through a power of attorney, and a will cannot revoke it. Source: Tex. Estates Code §§ 114.054, 114.057, checked Oct 29, 2026.
Do you need probate?State law
Do you need probate?Do you need probate?
Assets that usually skip probate:
- Jointly owned property with right of survivorship
- Payable-on-death (POD) and transfer-on-death (TOD) bank and brokerage accounts
- Life insurance and retirement accounts with a living named beneficiary
- Property titled in a living trust
- Real estate with a transfer on death deed, where the state allows one
What usually requires probate:
- Assets in the person’s sole name with no beneficiary or co-owner
- Real estate in the person’s sole name with no TOD deed or trust
- An estate above the state’s small-estate limit, or one that doesn’t qualify for the shortcut
- Debts or disputes that need a court-appointed representative
Texas shortcut: Small estate affidavit for intestate estates up to $75,000 (excluding homestead and exempt property), after 30 days.
Quick decision guide
- Did the person own anything in their sole name with no beneficiary, co-owner or trust? No → probate is usually not needed (but check the will-filing rule below). Yes → go to 2.
- Is that property under the state’s small-estate limit or eligible for its simplified procedure? Yes → use the shortcut. No → a probate case is usually needed.
What you may still have to do with no probate
No general filing deadline, but timing matters. Texas has no rule requiring the original will to be deposited after death. However, a will does not prove title to property until it is admitted to probate, and generally it cannot be admitted after the fourth anniversary of the death unless the applicant was not in default. When someone applies to probate the will, the original must be filed with the application if they have it, and it stays with the county clerk.
- A will is not effective to prove title to property until admitted to probate. Source: Tex. Estates Code § 256.001, checked Oct 29, 2026.
- A will generally cannot be admitted to probate after the fourth anniversary of the death. Source: Tex. Estates Code § 256.003, checked Oct 29, 2026.
- The applicant must file the original will with the application if it is in their control. Source: Tex. Estates Code § 256.053, checked Oct 29, 2026.
When do you need probate? · How to file a will after someone dies
Filing a will: do you need to, and howState law
No general filing deadline, but timing matters. Texas has no rule requiring the original will to be deposited after death. However, a will does not prove title to property until it is admitted to probate, and generally it cannot be admitted after the fourth anniversary of the death unless the applicant was not in default. When someone applies to probate the will, the original must be filed with the application if they have it, and it stays with the county clerk.
Where: County clerk of the county with venue (probate court). Find yours: Texas probate courts by county. File the original signed will; courts generally will not accept a copy as the original.
- A will is not effective to prove title to property until admitted to probate. Source: Tex. Estates Code § 256.001, checked Oct 29, 2026.
- A will generally cannot be admitted to probate after the fourth anniversary of the death. Source: Tex. Estates Code § 256.003, checked Oct 29, 2026.
- The applicant must file the original will with the application if it is in their control. Source: Tex. Estates Code § 256.053, checked Oct 29, 2026.
Getting death certificates for estate mattersState law
Getting death certificates for estate mattersWhere to order: The local registrar or county clerk, or Texas DSHS Vital Statistics (official site). The funeral home usually orders the first certified copies for the family.
Eligibility rules and fees for this state are not yet verified on this site; check the official vital records office.
Probate & small estatesState law
- When someone dies without a will, heirs can use a small estate affidavit if 30 days have passed, no administration is pending, and estate assets (excluding homestead and exempt property) do not exceed $75,000. The affidavit is sworn by two disinterested witnesses and the distributees and must be approved by the judge. Source: Tex. Estates Code §§ 205.001–.002, checked Oct 29, 2026.
Probate costsState law
Texas does not set a statutory percentage fee schedule for probate attorneys. Filing fees vary by county clerk; we have not yet published them.
State estate & inheritance taxState law
State estate & inheritance tax- Texas has no state estate tax or inheritance tax. Source: Texas Comptroller, checked Oct 29, 2026.
Federal estate & gift taxFederal law
- The 2026 federal basic exclusion amount is $15,000,000 per person, shared by estate and gift tax. Source: IRS – What’s new, Estate and gift tax, checked Oct 29, 2026.
- Above the exclusion, the top federal estate tax rate is 40%. Source: 26 U.S.C. § 2001(c), checked Oct 29, 2026.
Medicaid look-back & nursing home careFederal + state
Medicaid look-back & nursing home careFederal law sets a 60-month look-back on gifts and other transfers for less than fair market value when someone applies for Medicaid nursing home care; each state’s Medicaid agency applies it, including the penalty divisor. Texas-specific figures are not yet verified on this site.
- Look-back period of 60 months for transfers on or after February 8, 2006. Source: 42 U.S.C. § 1396p(c)(1)(B), checked Oct 29, 2026.
Finding assetsFederal + state
Finding assetsFederal: as executor or administrator you can ask the IRS for the deceased person’s tax transcripts (Form 4506-T), sending a death certificate and your court letters or Form 56. Interest, dividend and retirement income on the transcripts points to accounts. Texas: search the state’s official unclaimed property list: Texas Comptroller (ClaimItTexas). Real estate: check the registry of deeds or recorder for the county (Texas county pages).
- An executor can request the deceased person’s tax transcript with a death certificate and Letters Testamentary or Form 56. Source: IRS – Request deceased person’s information, checked Oct 29, 2026.
- Official unclaimed property search for Texas. Source: Texas Comptroller (ClaimItTexas), checked Oct 29, 2026.
Finding debts & creditor deadlinesFederal + state
Finding debts & creditor deadlinesFederal: family members generally aren’t personally liable for a deceased person’s debts unless they co-signed, held a joint account, or state law makes them liable; debts are paid from the estate. Texas creditor deadline: Within 1 month after receiving letters, the personal representative must publish a notice to claimants in a local newspaper (and send it to the Comptroller if the decedent owed or should have paid state taxes it administers). Within 2 months, the representative must notify known secured creditors. The representative may also send unsecured creditors a notice that they must present claims before the 121st day after they receive it.
- Survivors generally aren’t responsible unless an exception applies (co-signer, joint account holder, certain spouse or community property rules). Source: CFPB – Does a person’s debt go away when they die?, checked Oct 29, 2026.
- Publish notice to claimants within one month after receiving letters. Source: Tex. Estates Code § 308.051, checked Oct 29, 2026.
- Notify known secured creditors within two months after receiving letters. Source: Tex. Estates Code § 308.053, checked Oct 29, 2026.
- Optional notice to unsecured creditors: claim must be presented before the 121st day after receipt. Source: Tex. Estates Code § 308.054, checked Oct 29, 2026.
Getting medical recordsFederal + state
Federal (HIPAA): the deceased person’s personal representative, meaning the executor, administrator or other person with authority under state law, can get their medical records for 50 years after death. Providers must respond within 30 days (one 30-day extension allowed) and may charge only a limited cost-based fee. Who counts as the representative when no one has been appointed is set by Texas law; we haven’t yet verified a Texas-specific statute, so ask the provider’s records office what proof it accepts.
- Personal representative of a decedent = executor, administrator or other person with authority under applicable law; protection lasts 50 years after death. Source: HHS – Health Information of Deceased Individuals, checked Oct 29, 2026.