Probate in Texas is a court process that gives someone legal authority to move a loved one’s assets where they belong — and with the right setup, it is far less painful than its reputation suggests.
In a recent conversation, Zach Wiewel sat down with Ann Lumley, Texas Trust Law’s Director of Afterlife Care (our Director of Estate Administration). Ann has spent more than a decade helping families administer estates after a death. Here is what she shared about the basics of probate and what counts as a probate asset.
What is probate?
Probate is the legal process of going to court to have a representative of the deceased person’s estate officially appointed. If there is a will, you ask the court to probate it. If there isn’t, you ask the court to appoint an administrator.
Once appointed, that representative administers the estate according to the right “rule book.” As Ann puts it, “It’s the will if there’s a will, or intestacy law if there’s not, to get their assets where they’re supposed to go.”
Probate is a title-changing machine
At its core, probate exists to change who legally owns an asset. “That’s what I do — I change title,” Ann says. When families meet with her, the first step is to look at each asset and see how it’s titled. That tells her which rule book controls where it goes, and whether it needs probate at all.
What counts as a probate asset?
Only probate assets go through the probate process. A probate asset is typically something titled in the deceased person’s name alone, with:
- No right of survivorship
- No named beneficiary
- No transfer-on-death or pay-on-death designation
- No trust holding it
The asset Ann sees slip through most often is real estate. Even clients who put their home into a trust may later buy a rental property or vacation home, forget about the trust, and title it in their individual names.
Being on the deed together isn’t enough
Many couples assume that if both spouses are on the deed, the house automatically passes to the survivor. In Texas, that’s not the case. Ann, who went to law school in California, notes that California works that way, but Texas does not.
A related trap: surviving spouses often get their late spouse’s name removed from the county appraisal district records and assume the job is done. It isn’t. The appraisal district only tracks who pays property taxes. Ownership lives in the deed, and the deceased spouse’s name has to be cleared from it.
That holds even when the property passes by intestacy law. The heirs’ ownership technically relates back to the date of death, but nothing happens automatically. Until title is cleared, nobody can sell the property.
Final Thoughts
Probate isn’t something to fear, but it rewards planning. Understanding the basics is just the beginning. Be sure to work closely with an Estate Planning attorney to ensure you are covered under Texas law. If you would like to learn more about probate, please watch the short video below, or visit our previous videos.
This information is NOT intended to be used as legal or tax advice, nor does it establish an attorney-client relationship with Texas Trust Law or any of its attorneys. Please contact your own appropriate advisors to discuss the benefits and effects of any particular legal, charitable & tax strategy.
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