What probate is.
Probate is the court-supervised process for proving a will, appointing someone to settle the estate, paying valid debts, and transferring what's left to the right people. Assets that pass by beneficiary designation, joint ownership with survivorship, transfer-on-death deed, or trust usually skip probate entirely — so the first step is figuring out what actually needs to go through it.
First steps after a death.
- Find the original will — courts generally need the original, not a copy.
- Order several certified copies of the death certificate.
- Secure the home, vehicles, and valuables, and keep insurance in force.
- Don't distribute property or pay the estate's debts out of your own pocket until you know your role and the estate's obligations.
- Watch the deadlines: Texas generally requires a will to be offered for probate within four years; New Mexico generally requires probate to begin within three years.
Texas probate.
Independent administration
Most Texas estates are settled through independent administration, with limited court supervision after the executor is appointed.
Muniment of title
When there are generally no unpaid debts other than those secured by real estate, a will can be probated simply to transfer title — without appointing an executor.
Inventory deadline
An executor generally must file an inventory, appraisement, and list of claims within 90 days of qualifying (Tex. Est. Code § 309.051), unless an affidavit in lieu of inventory is allowed.
Without a will
Heirs may need a court determination of heirship — or, for estates of $75,000 or less (excluding homestead and exempt property), a small estate affidavit approved by a judge. An affidavit of heirship recorded in the property records is another tool for real estate.
Texas probate is handled by Jeff Barnett, Of Counsel (Texas Practice).
New Mexico probate.
Informal probate
Uncontested estates can usually be opened informally (NMSA § 45-3-301), often through the county probate court; the personal representative then settles the estate with limited court involvement.
Formal probate
Disputes, unclear wills, and complex estates go to district court for formal probate (§ 45-3-401).
Creditors & inventory
Creditors generally have four months after notice is first published (§ 45-3-801), and the personal representative prepares an inventory within three months of appointment (§ 45-3-706).
Small estates
Estates of $50,000 or less may collect personal property by affidavit 30 days after death (§ 45-3-1201), and a surviving spouse may use a separate affidavit for a community-property home (§ 45-3-1205).
New Mexico probate is handled by Shawn Barnett, licensed in New Mexico.
In New Mexico, only a court-appointed personal representative can bring a wrongful death claim (NMSA § 41-2-3). If a loved one died in an accident, the estate side and the injury case should be handled together. How injury and estate law connect →
What the executor does.
- Opens the estate and is appointed by the court
- Notifies creditors and handles valid claims
- Gathers, values, and protects estate property
- Files final tax returns
- Distributes property to the beneficiaries and closes the estate
Probate and estate administration fees are quoted after a consultation, because they depend on the estate and the type of proceeding.
Common questions.
Does every estate have to go through probate?+
How long does probate take?+
What if there's no will?+
Am I personally responsible for the deceased's debts?+
How much does probate cost?+
Texas estate planning services are provided by Jeff Barnett, Of Counsel (Texas Practice), of Barnett & Leuty, PC, Austin, Texas, licensed in Texas. New Mexico estate planning services are provided by Shawn Barnett, Managing Attorney, licensed in New Mexico. This page provides general information, not legal advice; reading it does not create an attorney-client relationship.