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Common Probate Terms in Texas

As lawyers we are guilty of using a lot of words that people do not use in everyday language. Probate law uses a number of terms that are fairly old and not widely used now, but are still important for understanding how the property of your deceased loved one will be transferred to the next owner.

What is a decedent?

A decedent is a person who has died. Courts and legal documents frequently use this word in place of the name of the person who has died.

What is a testator?

A testator is someone who makes and executes a last will and testament. A testatrix is used as the female equivalent.

What does intestate mean?

Intestate means that a person died without creating a valid, legal last will and testament during his or her living years. When someone dies intestate, the law sets out who is entitled to the property in the estate, and in what percentage. These are called the laws of Descent and Distribution and Judge Guy Herman, from the Travis County Probate Court No. 1 put together a wonderful visual depiction here.

What is an heir?

An heir is an individual who is legally entitled to inherit some or all of the estate of another person who dies intestate.

What is a devisee?

Traditionally, a devisee is someone who specifically receives real property (E.g., land and real estate) through someone's last will and testament. If the testator leaves their house to their daughter, then she would be a devisee.

What is a legatee?

Legatee is a broader term than devisee and is generally used to refer to individuals who inherit from a will regardless of whether it was real property or personal property (E.g., furniture and jewelry).

What is a beneficiary?

A beneficiary is someone named in a legal document to inherit money or other property. Wills, trusts, and insurance policies commonly name beneficiaries, but beneficiaries can also be named for “payable-on-death” accounts, like checking and savings accounts.

What is a personal representative?

A personal representative is a person who is approved by a court to have legal authority to act on behalf of, or handle duties of the estate, and in Texas is generally either called an executor or administrator. A couple of examples: If the decedent died with a valid will, the decedent may have designated someone to be his or her executor at the time of the decedent's death; or an administrator might be designated by the decedent's beneficiaries, heirs, or by court order.

What is estate administration?

Estate administration is the legal process where an estate is managed (such as settling claims, paying debt, distributing property) after a personal representative is approved by a court.

Some estates do not require administration, but many do. If someone tells you that you cannot transfer certain property, like a stock account, without “letters testamentary” or “letters of administration,” estate administration is required.

What is exempt property?

Determining which property is exempt can be complicated, so please contact an attorney if you have any questions about property you are claiming is exempt. However, generally, exempt property includes the following:

  1. the homestead for the use and benefit of the decedent's surviving spouse and minor children;
  2. the decedent's pension benefits, insurance benefits and IRAs; and
  3. some of the following categories of property:
    • home furnishings, including family heirlooms;
    • provisions for consumption;
    • farming or ranching vehicles and implements;
    • tools, equipment, books, and apparatus, including boats and motor vehicles used in a trade or profession;
    • clothes;
    • a limited amount of jewelry;
    • two firearms;
    • athletic and sporting equipment, including bicycles;
    • a 2-wheeled, 3-wheeled, or 4-wheeled motor vehicle for each member of a family or single adult who holds a driver's license or who does not hold a driver's license but who relies on another person to operate the vehicle for the benefit of the nonlicensed person;
    • certain livestock and food on hand for their consumption; and
    • household pets.

The items on this list of personal property are only exempt up to a combined value of $100,000 for a family or a combined value of $50,000 for a single adult, and it must be for the use and benefit of the decedent's surviving spouse and minor children, unmarried adult children remaining with the decedent's family, and each other adult child who is incapacitated.

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