Legislative Update: Recent Changes to the Probate Process in Texas

Texas Probate Law

During its last session, the Texas legislature implemented some much-needed tweaks to the Texas Estates Code aimed at reducing delays, eliminating unnecessary formalities, and addressing persistent logistical problems in the probate process. The following is a selection of the most notable changes made to the Code and a description of their likely effects on the probate process in Texas.

  1. Service by certified mail can now also be made by private courier or private delivery service. At various stages of the probate process, the applicant seeking to probate an estate is required to serve notices on people who have an interest in the estate. For example, an applicant trying to probate the estate of someone who died without a valid will in place must serve each of the deceased’s legal heirs with a special notice called a citation and must do so by sending the citation to the heir’s home if their address is known or ascertainable. After the 2023 changes, notices and citations that were previously required to be sent by certified mail can now be served by two additional means: hand delivery by a courier with a delivery receipt, and delivery by any private carrier that is authorized by federal law to deliver tax returns to the IRS (currently, these are DHL Express, UPS, and FedEx).
  2. Parents can waive service of citation upon children 16 years of age and younger. In some situations, the heir or interested person who must be served with citation is a minor, and depending on what the citation is for, the law might require that they be served with that citation in person. Thanks to the new changes to the Estates Code, the parent or other legal guardian of a person aged 16 years or younger may waive the personal service of citation on their child’s behalf.  Children older than 16 can waive citation for themselves.
  3. Oaths of personal representatives no longer need to be notarized. In order to assume their office, a lawfully appointed executor or administrator of an estate is required to sign a written oath that they will faithfully carry out their duties as required by law. Previously, these documents needed to be signed while under oath, meaning that the executor or administrator either had to sign the oath in front of the probate judge or else sign it with a notary afterward. Now, the personal representative of the estate may sign their oath using an “unsworn declaration” which does not require a notary. Considering that the swearing of the oath is largely ceremonial, this is a welcome bit of streamlining.
  4. The identities of heirs may now be proven by previously recorded affidavits instead of live testimony. In proceedings involving the identification of a deceased person’s heirs, the party seeking the heirship determination must provide the testimony of two disinterested witnesses as to the deceased person’s marital history and the identities of their surviving family members. This testimony was, until now, usually given by the witnesses in open court. An exception existed allowing witness testimony by written deposition, but it was only available in certain situations and was often too complicated and expensive to be worth it. After the legislative changes, previously recorded witness affidavits proving the identities of the heirs can now be offered in lieu of live witnesses. Such “affidavits of heirship” are often used outside of court for the purpose of allowing a deceased homeowner’s home to be sold, meaning that these affidavits can now be used to knock out two stages of the probate process at once.
  5. Under limited circumstances, people with felony convictions may be permitted to serve as executors. Until this year's changes to the Estates Code, convicted felons were completely barred from serving as the executors of estates, regardless of when the conviction occurred or what the conviction was for. Following the changes, Texas probate judges have the discretion (but not the obligation) to appoint a felon as executor if the person was chosen by the deceased in their will to serve as such, if the person is otherwise qualified to serve, and if the judge approves of their appointment. As this law is brand new, only time will tell what level of scrutiny probate judges will apply to a person's history and character before considering approving them to serve as executor despite a prior felony conviction.

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