Texas probate has its own vocabulary, and many terms have precise statutory meanings that differ from everyday usage. An executor is named in a will; an administrator is appointed when there is none. Letters testamentary are the court's evidence of an executor's authority. A muniment of title probates a will without appointing anyone. Independent administration lets an executor act without court approval for most purposes. This glossary defines the terms families encounter most often, with references to the governing provisions of the Estates Code.
Using this glossary
The definitions below are written for families, but they track the way Texas courts and the Estates Code use the terms. Where a term is governed by a specific statute, the reference is noted so the precise language can be consulted.
People
Decedent. The person who died.
Testator. A person who has made a will.
Executor. The person named in a will to administer the estate, who serves only after the court admits the will to probate and issues letters testamentary. Named executors have first priority to serve (Tex. Est. Code § 304.001).
Administrator. A person appointed by the court to administer an estate when there is no will, no executor is named, or the named executor cannot serve. An administrator receives letters of administration.
Personal representative. The general term for executors and administrators, whether independent or dependent.
Heir. A person entitled to inherit under the intestacy statutes in Chapter 201 when there is no will, or as to property the will does not dispose of.
Devisee or beneficiary. A person who receives property under a will.
Distributee. A person entitled to a share of the estate, whether as heir or devisee.
Attorney ad litem. An attorney appointed by the court to represent the interests of unknown or missing heirs, minors or incapacitated persons, most commonly in a determination of heirship.
Resident agent. A Texas resident appointed by a nonresident executor or administrator to accept service of process for the estate (§ 304.003(a)(3)).
Documents and procedures
Letters testamentary. The court-issued certificate evidencing an executor's authority, issued after the executor qualifies by taking the oath and posting any required bond.
Letters of administration. The equivalent certificate for an administrator.
Muniment of title. Probate of a will without appointing an executor, available when the estate owes no unpaid debt other than debts secured by real estate liens, or the court finds administration otherwise unnecessary. The order itself is authority for those holding estate property to transfer it to the devisees (§§ 257.001, 257.102).
Independent administration. An administration in which, after appointment and the filing of an inventory or affidavit in lieu, the executor may take any action a court-supervised representative could take, without court approval (§§ 402.001, 402.002).
Dependent administration. An administration in which most significant actions, such as sales and leases of estate property, require court authorization.
Self-proving affidavit. A sworn affidavit of the testator and witnesses attached to a will that allows it to be admitted to probate without testimony from the attesting witnesses.
Holographic will. A will written wholly in the testator's handwriting, which need not be witnessed but must be proved by evidence of the handwriting if it is not self-proved.
Codicil. A later testamentary instrument that amends, supplements or revokes part of a will.
Inventory, appraisement and list of claims. The verified list of estate property, its date-of-death value and claims owed to the estate, due within 90 days after the representative qualifies (§ 309.051).
Affidavit in lieu of inventory. A sworn statement an independent executor may file instead of the inventory when the conditions of § 309.056 are met, confirming that the beneficiaries have received the inventory.
Affidavit of heirship. A sworn statement of the decedent's family history, recorded in the deed records, used as evidence of heirship; after five years of record it is prima facie evidence of the facts stated (§ 203.001).
Determination of heirship. A court proceeding and judgment declaring the heirs and their shares (Chapter 202).
Small estate affidavit. A sworn affidavit, approved by the judge, allowing the heirs of an intestate estate of $75,000 or less (excluding homestead and exempt property) to collect it without administration (Chapter 205).
Keep this list handy during your first meetings with a probate attorney. It makes the conversation much easier to follow.
Property and inheritance terms
Intestate. Dying without a valid will.
Community property. Broadly, property acquired by either spouse during marriage other than by gift, devise or descent.
Separate property. Property owned before marriage or acquired during marriage by gift, devise or descent, together with recoveries for certain personal injuries.
Homestead. The family's residence, which carries special protections from creditors and special rules at death.
Exempt property. Property, including the homestead, that may be set aside for a surviving spouse and minor or incapacitated children and is protected from most creditors (Chapter 353).
Life estate. The right to use property and receive its income for life, after which the property passes to the remainder beneficiaries.
Nonprobate asset. Property that passes outside the will and the probate process, such as accounts with beneficiaries or survivorship rights, trust assets and real estate covered by a transfer on death deed.
Anti-lapse. The statutory rule that, in specified circumstances, substitutes the descendants of a devisee who dies before the testator (Chapter 255, Subchapter D).
Frequently asked questions
What is the difference between an executor and an administrator?
An executor is named in the will and appointed by the court. An administrator is appointed by the court when there is no will, when the will names no executor, or when the named executor cannot or will not serve. The court follows a statutory order of priority in choosing (Tex. Est. Code § 304.001).
Is an heir the same as a beneficiary?
No. An heir takes under the intestacy statutes when there is no will (or as to property the will does not dispose of). A beneficiary, or devisee, takes under the terms of a will.
What does "testate" mean?
Dying with a valid will. "Intestate" means dying without one, and "partially intestate" means the will does not dispose of all of the estate.
What are letters testamentary used for?
They are the court-issued evidence of the executor's authority. Banks, title companies, operators and government agencies rely on certified copies to deal with the executor on the estate's behalf.
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Official sources
About the author
Todd Worrich is a San Antonio native and Texas attorney. He earned his undergraduate degree from Texas A&M University, his law degree from St. Mary’s University School of Law and an LL.M. in Taxation from SMU Dedman School of Law, and he has been recognized multiple times by Texas Super Lawyers. His practice focuses on estate planning, probate and helping Texas families recover oil and gas royalties. More about Todd
This article is general information about Texas law, not legal advice for your situation, and reading it does not create an attorney-client relationship. Laws change, and results depend on the facts of each matter. Attorney responsible for this content: Todd Worrich, San Antonio, Texas.
