Most families assume that if there’s a will, they automatically need probate in Texas—but that’s not always true.
As an estate planning and probate attorney in Texas for nearly 20 years, I’ve seen families spend thousands of dollars and months of time navigating probate when they didn’t have to. In many cases, I’ve helped clients save significant time and money simply by recognizing when probate isn’t necessary.
Before you start the probate process, there are three key questions to ask yourself. And if you do end up needing to probate a will, there’s a critical four-year deadline you can’t afford to miss.
1. What Type of Family Are You: Leave It to Beaver or Brady Bunch?
Let’s start with family structure.
A “Leave It to Beaver” family is what I call a traditional family — mom and dad are married, and all of the children come from that same marriage.
A “Brady Bunch” family is a blended family, meaning at least one child is from a prior relationship.
If you’re a Leave It to Beaver family, you might not need probate at all.
But if you’re a Brady Bunch family, probate is almost always required.
Here’s why: when a blended family skips probate, the surviving spouse often ends up co-owning property with the deceased spouse’s children. That creates legal and financial headaches that can be avoided through probate.
2. What Does the Will Actually Say?
The next thing to look at is who benefits from the will.
If the will says that “all children take equally,” you may be able to avoid probate. But if it says anything else, you’re headed to probate court.
For example, probate is required if the will leaves:
Unequal distributions (e.g., one asset to one child, another to a different child)
Gifts to grandchildren, nieces, nephews, or friends
In short, anything other than all kids taking equally means you’ll need to probate.
3. What Assets Are in the Estate?
The third question is about what’s actually in the estate.
If all the financial accounts (like checking, savings, or CDs) already have beneficiary designations, the family may not need probate. The financial institutions can release those funds directly to the named beneficiaries.
However, if the only assets are real estate, mobile homes, or vehicles, you may still be able to skip probate. That’s because Texas law provides an alternative called an Affidavit of Heirship.
What’s an Affidavit of Heirship?
In a Leave It to Beaver family, Texas Estates Code says:
When dad dies, everything goes to mom.
When mom dies, everything goes to dad.
When both are gone, everything passes equally to the kids.
Because of that, a probate attorney can use an Affidavit of Heirship to transfer title without ever setting foot in court.
Title companies, the Texas Department of Housing, and the Texas Department of Motor Vehicles all recognize this document as proof of ownership transfer. That means you can legally transfer title to:
Homes and land
Manufactured or mobile homes
Vehicles
This process saves families thousands compared to full probate.
When Probate Is Required
Even if your family is traditional and the will splits assets equally, probate becomes necessary when there’s an asset without a beneficiary — like a bank CD, investment account, or life insurance policy that lists no one to receive the funds.
Financial institutions require a court-stamped document (called Letters Testamentary or Letters of Administration) before releasing those funds. They only want to write that check once, and they need the court’s assurance that they’re paying the right person.
So, if you have any assets stuck at a bank or financial institution without a beneficiary, you’ll need to go through probate.
The 4-Year Deadline to Probate a Will in Texas
Here’s a critical piece most families don’t realize:
You only have four years from the date of death to probate a will in Texas.
If you wait longer than that, the will becomes legally worthless—it can’t be probated at all. I see families discover this too late at title companies all the time, and it can cost them dearly.
How to Find Out If You Actually Need Probate
Whether you’re a Leave It to Beaver or a Brady Bunch family, don’t guess. A small detail can make a big difference in what process you need to follow.
At Silverleaf Legal, our team can review your situation and tell you in less than 15 minutes whether you need probate—and we don’t charge for that initial review.
If you’re not sure whether you need probate in Texas, contact us today.
We’ll help you determine the right path forward and save you time, stress, and unnecessary expenses.