June 21, 2025

Avoiding Probate in Texas: Tools and Strategies You Can Use

Even though Texas offers “independent administration,” heirs still face filing fees, publication costs, and statutory executor commissions of up to 5 percent of estate receipts and disbursements. Estates can also remain open for more than a year, freezing assets and placing personal details in the public record, which can invite creditor problems and family conflict. 

Probate in Texas can run nine months or longer and can drain thousands of dollars from an estate in court costs, attorney fees, and executor commissions. Texans can legally sidestep much of that delay and expense by making lifetime arrangements that move property directly to loved ones at death—no judge required. Below are the most reliable strategies recognized under Texas law along with practical tips on when each tool makes sense.

Revocable Living Trusts

A revocable living trust lets you hold almost any asset—real estate, brokerage accounts, business interests—under a single umbrella during life and then pass those assets to named beneficiaries without probate. Because you remain trustee while you are alive and competent, you keep full control; at death or incapacity, your successor steps in immediately with instructions you drafted. 

Unlike a will, the trust need not be filed with the court, preserving confidentiality. Pairing the trust with pour-over wills and durable powers of attorney creates a comprehensive “incapacity to inheritance” roadmap that Texas courts routinely respect. Clients appreciate the ability to stagger distributions or protect minors through sub-trusts rather than lump-sum bequests.

Beneficiary Designations on Financial Accounts

Texas banks and brokerages honor Payable-on-Death (POD) or Transfer-on-Death (TOD) designations for checking, savings, CDs, life insurance, and mutual funds. When the owner dies, the bank cuts a check directly to the named beneficiary—no court order required. A key warning: the designation must use Joint Tenancy with Right of Survivorship (JTWROS) or POD language; merely having both names on the account is not enough, and the institution may freeze funds until probate is opened. Review beneficiary forms after major life changes to keep them aligned with your broader plan.

Transfer-on-Death Deeds for Real Estate

Since 2015, Section 114 of the Texas Estates Code allows a homeowner to record a Transfer-on-Death Deed (TODD) that names a beneficiary for homestead or investment property. Title shifts automatically the moment the owner dies; the beneficiary only needs to record an affidavit of death to finalize ownership. No gift tax is triggered during life, and the owner can revoke the deed at any time with a simple filing. Because the home avoids probate yet still receives a stepped-up income-tax basis, a TODD is often a cost-effective alternative to placing the property in a trust.

Lady Bird Deed

An “enhanced life estate” deed—popularly called a Lady Bird deed—also bypasses probate but goes a step further by preserving the owner’s right to mortgage or sell the property without beneficiary consent. Texas is one of only a handful of states recognizing this deed. In addition, because the transfer is not completed until death, it is generally ignored for Medicaid transfer-penalty purposes, making the Lady Bird deed a valuable shielding tool for seniors concerned about long-term-care expenses.

Joint Tenancy With Right of Survivorship Deeds

Texas allows spouses or other co-owners to hold real estate or brokerage assets in joint tenancy with right of survivorship. When one owner dies, the survivor files a survivorship affidavit and recorded death certificate to clear title. Be aware that joint tenancy defeats contrary terms in a will, so coordinate the deed with the rest of the estate plan to prevent accidental disinheritance. 

Community Property Survivorship Agreements

Married Texans can sign a Community Property Survivorship Agreement under Estates Code §112.051. This document converts all community property to “survivorship community property,” allowing the surviving spouse to claim full ownership without probate. The agreement must be in writing and signed by both spouses, and a revocation requires written notice. Couples who expect blended-family disputes often pair the agreement with a revocable trust that earmarks certain assets for children from prior marriages.

Small-Estate Affidavit

If a decedent dies without a will, owns no real estate other than a homestead, and leaves a gross estate of $75,000 or less (excluding the homestead), heirs can file a Small-Estate Affidavit 30 days after death. The process avoids formal administration, but creditors must still be paid, and title companies may hesitate to insure homestead sales within two years of death. Use this method only when the estate truly is modest and uncontested.

Lifetime Gifting and Transfer of Personal Property

Texas has no state gift tax, so parents frequently deed mineral interests, collectibles, or closely held business shares during life to remove them from the probate estate. While annual federal gift-tax exclusion limits still apply ($18,000 per recipient in 2025), gifts below the exclusion reduce potential estate-tax exposure and streamline later administration. Document transfers with bills of sale and keep receipts with estate planning files.

Texas Probate–Don’t Do It Alone! Find Attorneys in McAllen, TX

Today’s property transfers are too valuable to leave to chance. Villeda Law Group has spent over four decades crafting clear, court-tested plans for South Texas families. Let our board-certified team help you lock in the benefits of trusts, deeds, and beneficiary designations while there is still time—contact us today and put your wishes in writing.