How Much Does Probate Cost?

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by Russell Aldrich | January 14, 2024

Summary: The cost of probate in Texas varies significantly depending on the particulars of a given case. The primary factors contributing to overall probate costs are whether the decedent died with or without a will, and whether administration of the estate will be independent from court supervision. Probate of an estate in which there is a will generally costs less than probate of an estate without one; however, numerous factors can increase the cost associated with each type of proceeding. The cost of probating a will rises, for example, when a will is poorly drafted, lost, or ambiguous. The cost of an heirship proceeding, similarly, will increase if there are great number of distant heirs or if family discord exists between them. With or without a will, a dependent administration requiring court supervision can greatly increase the overall cost of probate.

Cost of Probate vs Cost of Estate Administration

“Probate” and “administration of an estate” are often used interchangeably in the context of handling a deceased person’s estate; however, in reality they refer to different, but related, aspects of the process. The costs associated with each vary widely from case to case and depend on a variety of factors that will be described in this article.

Probate: Who Gets What? Who’s in Charge?

Probate proceedings, at their core, are needed to resolve two important issues. First, who are the individuals or entities entitled to receive share of a decedent’s estate? And second, who is responsible for carrying this out?

The probate mechanism used to decide these matters will depend on whether the decedent died testate, meaning that he or she died with a valid written will, or intestate, in meaning that he or she died without a valid written will. In both cases, the person initiating probate proceedings will need to retain the services of an attorney with experience in probate and estate law to ensure that the requirements of the Texas Estates Code are satisfied.

Probate of a Will: Is the Document Valid?

The cost to probate a will in Texas is generally less than the cost of probate proceedings in estates in which the decedent died without a will. This is because a well-drafted will clearly identifies the beneficiaries entitled to receive property from the estate, along with a clear description of the property each shall receive, as well as the person – called an executor – who is charged with effectuating the will’s terms. For a will to have any legal significance after the death of the testator, however, a probate court must first determine that the will is valid under Texas law.

Probate of a will specifically refers to the legal process through which a will is validated by a court. During probate, the court reviews the will to ensure, among other things, that it meets the requirements of the Texas Estates Code, that it was submitted for probate within the applicable timeframe, and that the document is authentic.

Occasionally, the probate court’s validation of a will is all that is needed to transfer property from a decedent’s estate to the beneficiaries named in the will. This procedure, called the probate of a will as a muniment of title, can be more affordable than full-blown probate of a will in which administration is required. Probate as a monument of title, however, is available in limited circumstances and advisable only in small, uncomplicated estates. In most instances, however, the probate court will need to appoint an executor to administer the estate.

Regardless of whether a will is probated as a muniment of title only or an executor is appointed for the estate, the first step will always be the probate court’s determination of the will’s validity.

Cost to Probate a Will

The costs associated with the probate court’s initial determination whether to admit the will to probate vary significantly from case to case. Each probate court sets their own rules and requirements for probate, and in many instances these local rules are more onerous than the minimum requirements set forth in the Texas Estates Code. Additional requirements, such as enhanced notice requirements or the need for additional witness testimony, may necessitate more work by your attorney to have the will admitted to probate.

The cost of probate may also increase if a will was poorly drafted, if the original will is lost, or if the beneficiaries are unknown or otherwise uncooperative. The following is a non-exhaustive list of factors that may increase the cost to probate a will:

The will is holographic (i.e., handwritten)
The will is not “self-proved” (i.e. it does not contain a self-proving affidavit)
The original will is lost and no copy exists
The will being submitted for probate is a photocopy of the original will
Probate of the will is being sought more than four years after the death of the decedent
The will was drafted or executed in a different state
The will does not name an executor
If the executors named in the will are deceased, unwilling, or unable to serve
The will does not clearly provide for an independent administration
The will does not state that the executor can serve without bond
The will is ambiguous, contradictory, incomplete, or poorly drafted
The will was not drafted by an attorney
The will is a generic or drafted using an online service or kit, especially if the will is generic not specific to Texas
The will contains blank lines that aren’t filled in
The will has any provisions that are scratched or crossed out
The will contains additional handwritten notes or adjustments
The will does not contain a residuary clause disposing of all estate property
The will contains a codicil
The will is in a foreign language and requires a translator
If the will’s beneficiaries cannot be located or are uncooperative

What causes the greatest increase in the cost of probate, however, is a dispute over the validity of the will itself. Will contests require the employ of a seasoned probate litigation attorney and, frequently, one or more expert witnesses. The cost of a simple, uncontested probate matter pales in comparison to one which is contested, and in many instances the contest of a will is cost prohibitive unless a probate litigation attorney is willing to accept the case on a contingency fee basis.

Cost of Probate Without a Will

The cost of probate in estates where a person dies without a will are generally higher than those where a will exists. In these circumstances, Texas intestacy laws provide the legal framework for distributing the deceased’s assets to their rightful heirs. In the absence of a valid will, these default provisions describe which surviving family members are to receive a part of the estate. One seeking to inherit from an intestate decedent must therefore request that a probate court issue a judgment declaring heirship which clearly identifies the heirs of an estate and share of the estate to which each is entitled.

Because probate courts cannot easily ascertain the identity of the intestate heirs in existence at the time of a decedent’s death, an applicant must provide significant evidence establishing the decedent’s family history and the identity of the decedent’s heirs at the time of his or her death. The court will require that notice of the probate proceedings to be given to all heirs, including any potential unknown heirs; that two disinterested witnesses with substantial knowledge of the decedent’s family history testify in court; and that an attorney ad litem be appointed to investigate the decedent’s family background, conduct genealogical research by using available public records, and interview the decedent’s co-workers, friends, neighbors, and family members. Probate costs are significantly higher in heirships because the tasks required to prove a person’s family history go well beyond those which are needed to establish the validity of a will.

The amount one should expect to pay for a probate court to issue a judgment declaring heirship varies significantly from case to case. A good rule of thumb is that the more complex the decedent’s family, the more it will cost to for a determination of heirship.

The following is a list of factors that may increase the cost of probate in an intestate estate:

The heirship proceeding is initiated many years after the decedent’s death
The decedent had multiple children from different partners over a long period of time
The decedent died at a very advanced age, and most of the potential disinterested witnesses have already passed away
The decedent has one or more heirs who are transient, or whose location and contact information is unknown
The decedent had a “secret family” and has children that are unknown even to their close friends and relatives
The decedent was unmarried, never had children, never had siblings, and whose parents predeceased him or her
The closest surviving family members of a decedent are distant relatives, such as second cousins, great-grandnephews, etc.
There is family discord and the decedent’s surviving family members are antagonistic towards one another
The decedent was in a common law marriage or a long-term relationship that may give rise to allegations of a common law marriage
The decedent has one or more children who he took in at a young age, giving rise to a claim that they were equitably adopted or adopted by estoppel

Once again, probate litigation arising out of disputes over the identity of heirs can cause the cost of probate to skyrocket. These disputes most frequently occur in instances when there is a claim for common law marriage or adoption by estoppel. In the event that litigation does arise, however, it is essential to retain the services of a competent probate litigation attorney to fight for your interest in the decedent’s estate.

Cost of Probate Administration

The probate of a will and the issuance of a judgment declaring heirship are different mechanisms with the same purpose: to formally establish the persons entitled to inherit from a decedent’s estate, and the share of the estate to which each of those persons are entitled. Although the cost of probating a will is generally less than that of an heirship proceeding, this is not universally true, and the expense associated with each procedure can vary widely from case to case. In both instances, however, estate administration will typically be required to manage and settle a decedent’s estate.

The cost of probate administration, like the cost of probating a will or requesting a determination of heirship, varies significantly from one estate to another. Administration of an estate is a broad term that encompasses all tasks associated with managing and settling a deceased person’s estate. The person charged with administering the estate is called an executor, in cases where the decedent left a will, or an administrator, when the decedent died without a will. Their duties include collecting and managing the estate’s assets; paying any applicable debts, taxes, or expenses of administration; notifying all creditors, beneficiaries, and heirs as required by law; creating an inventory of estate property; selling or liquidating property of the estate, as needed; and distributing assets to beneficiaries pursuant to the decedent’s will or heirs pursuant to Texas intestacy law.

The expense associated with estate administration will depend largely upon on whether it is the administration is independent or dependent. The difference between independent and dependent administration is beyond the scope of this article; however, the primary distinction between them is that the former requires significantly less supervision from the court than does the latter. Whereas in an independent administration an executor or administrator may act without court oversight in accordance with the will (if there is one) and the provisions of the Texas Estates Code, in a dependent administration they must first obtain court approval for virtually every step of the estate’s administration.

Requesting permission from the court costs money: the executor or administrator must pay their attorney to file the requisite pleadings requesting approval from the probate judge throughout the entirety of the estate’s administration, thus increasing the amount of attorney’s fees and associated expenses. The cost of probate in a dependent administration is further increased because there are additional requirements which are not present in an independent administration, such as the posting of a bond and the filing of annual accounts with the probate court.

Probate Costs Summary: It Depends

Given these variables, the total cost of probate in Texas can range from a few thousand dollars for the probate of a well-drafted will in a simple estate, to tens or even hundreds of thousands of dollars in cases in which a complicated determination of heirship is required along with a dependent administration of an estate which is particularly complex. To get an idea of the estimated cost of probate, it’s advisable to consult with a probate attorney in your area to go over your case so that they may ascertain which proceeding will be required in your circumstances.