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Texas Estate Planning Attorney

Texas is one of the most favorable estate planning jurisdictions in the United States. The state has no estate tax, no inheritance tax, no state income tax, constitutional homestead protections among the strongest in the country, and a probate system that — when properly set up — is faster, cheaper, and less court-supervised than the systems in most other states. Texas is also a community property state, with significant implications for both spousal succession and post-death capital gains treatment. Our firm helps Texas individuals, families, business owners, ranchers, and out-of-state clients with Texas assets design and maintain estate plans that take full advantage of the Texas framework.

Texas office: (469) 535-6260

Why Texas Is a Favorable Estate Planning Jurisdiction

  • No state estate tax. No state inheritance tax. No state income tax.
  • Independent administration of estates. Texas allows an estate to be administered without ongoing court supervision when properly elected in the will — one of the most efficient probate frameworks in the country.
  • Constitutional homestead protections. Surviving spouses and minor children have constitutional rights in the homestead that override conflicting will provisions.
  • Community property state. Combined with the federal “double step-up” in basis at the death of the first spouse, community property treatment can produce substantial capital gains tax savings for surviving spouses selling appreciated assets.
  • Texas Trust Code. Texas Property Code Title 9 provides a flexible, modernized trust framework.
  • Texas Transfer on Death Deed. Texas Estates Code Chapter 114 allows real estate to pass directly to named beneficiaries at death without probate — a powerful non-trust tool for clients whose only significant probate asset is a home.

Core Texas Estate Planning Documents

Last Will and Testament

A Texas will may be attested (signed by the testator and witnessed by two competent witnesses) or holographic (entirely in the testator’s handwriting and signed). A well-drafted Texas will should include a self-proving affidavit (Estates Code § 251.101) to avoid the need for witness testimony at probate. The will should also expressly grant independent administration powers (see below), name a personal representative, name guardians for minor children, and direct the disposition of the estate.

Independent Administration

Texas Estates Code § 401.001 et seq. permits independent administration of an estate when the will expressly provides for it or all beneficiaries consent. Under independent administration, the personal representative is appointed by the court and given Letters Testamentary, but then handles the entire administration without ongoing court supervision — no inventory hearings, no court approval of asset sales, no court approval of distributions. The personal representative still has fiduciary duties to beneficiaries, but the process is dramatically faster and less expensive than the supervised “dependent administration” used in some other states. Including independent administration language in every Texas will is essentially universal best practice.

Revocable Living Trust

Texas probate, when independent administration applies, is efficient enough that a revocable trust is not necessary purely to avoid probate — unlike California. But Texas clients still benefit from a funded trust for several other reasons: privacy (the will and estate inventory become public records during probate), incapacity management (a trust avoids the need for guardianship of the estate during incapacity), out-of-state real estate (a trust avoids ancillary probate in other states), and seamless administration for blended families and complex distribution schemes. The Texas Trust Code (Property Code Title 9) governs.

Texas Transfer on Death Deed

Texas Estates Code Chapter 114 (effective 2015) authorizes the Transfer on Death Deed (TODD). A TODD transfers Texas real estate to named beneficiaries at the owner’s death without probate, without giving the beneficiaries any present interest, and revocably during the owner’s lifetime. For clients whose only significant probate-eligible asset is a home, a TODD can replace much of the need for either a will-based probate or a trust-based avoidance strategy.

Lady Bird Deed (Enhanced Life Estate Deed)

Texas recognizes the Lady Bird Deed (enhanced life estate deed), which reserves a life estate to the grantor with full powers to sell, mortgage, or revoke during life, with a remainder to named beneficiaries at death. Lady Bird Deeds avoid probate, may avoid Medicaid estate recovery in some circumstances, and do not trigger gift-tax consequences during the grantor’s lifetime. They serve as an alternative or complement to the TODD.

Durable Power of Attorney

Texas Estates Code Chapter 752 governs the Durable Power of Attorney for finances. The Texas statutory form provides a comprehensive grant of authority over financial matters and is widely accepted by Texas financial institutions when properly executed.

Medical Power of Attorney and Directive to Physicians

The Texas Medical Power of Attorney (Health & Safety Code Chapter 166, Subchapter D) names an agent to make medical decisions during incapacity. The Directive to Physicians (often called a living will, Health & Safety Code Chapter 166, Subchapter B) expresses wishes regarding life-sustaining treatment.

Texas Community Property & the Double Step-Up

Texas is one of nine community property states. At the death of the first spouse, all community property — not just the deceased spouse’s half — receives a full step-up in basis to fair market value under Internal Revenue Code § 1014. For long-married couples holding appreciated real estate, business interests, or investment portfolios, the double step-up can save tens or hundreds of thousands of dollars in capital gains tax when the surviving spouse later sells.

Capturing the double step-up requires the property to be properly characterized as community property at the first death. Tracing and partition / exchange agreements (Texas Family Code §§ 4.101 et seq.) sometimes need to be considered to ensure proper characterization, especially for couples who relocated to Texas from a non-community-property state with separately held property.

Texas Specialized Trusts

  • Irrevocable Life Insurance Trusts (ILITs) — keep life insurance proceeds outside the taxable estate for federal estate tax purposes (relevant to higher-net-worth Texas clients whose total assets exceed the federal exemption).
  • Special Needs Trusts — preserve a disabled beneficiary’s eligibility for SSI and Medicaid while allowing supplemental support.
  • Spousal Lifetime Access Trusts (SLATs) — use lifetime gift-tax exemption while retaining indirect spousal access. Increasingly relevant as the federal exemption is scheduled to decrease.
  • Charitable Remainder Trusts — combine current income with a deferred charitable gift.
  • Family Limited Partnerships (FLPs) — commonly used in Texas for ranch, mineral, and family-business succession.
  • Gun Trusts — Texas is a NFA-friendly state with broad firearms ownership. A gun trust permits shared possession of NFA items, simplifies inheritance, and provides legal continuity at the settlor’s death. See our dedicated Texas Gun Trusts page.
  • Mineral Rights Trusts — structured to manage royalty interests and surface use across generations.

Constitutional Homestead and Surviving Spouse Rights

The Texas Constitution and Texas Property Code Chapter 41 give the surviving spouse and minor children specific rights in the homestead that override conflicting will provisions. The surviving spouse has a right to occupy the homestead for life (or so long as the spouse occupies it), and minor children have similar rights. The homestead cannot be partitioned among heirs during the surviving spouse’s occupancy. Estate planning that ignores these rights can produce surprising results — for example, a will that purports to devise the homestead to children of a prior marriage may be effectively overridden by the surviving spouse’s occupancy right.

Texas also provides for a family allowance (Estates Code § 353.101), exempt property set-asides (Estates Code § 353.051), and an allowance in lieu of exempt property when a homestead or exempt assets do not exist. These statutory rights affect probate distribution and need to be considered in any plan.

Texas Probate

Texas probate is conducted in the probate court (in counties that have one) or the constitutional county court or county court at law (in counties without a separate probate court). The two main paths are:

  • Independent administration — faster, less court-supervised, and the default when the will so provides or all beneficiaries consent.
  • Dependent administration — supervised by the court at every step, used when independent administration is not available.

For estates that meet the criteria, Texas Estates Code Chapter 205 provides a Small Estate Affidavit procedure to transfer assets without full probate when the value of the estate (excluding homestead and exempt property) does not exceed the statutory threshold (currently $75,000). For estates with only real property and no need for ongoing administration, Texas also recognizes a Muniment of Title proceeding (Estates Code §§ 257.001 et seq.) — an abbreviated probate that establishes the will as a record of title without appointing a personal representative.

Our firm represents personal representatives, beneficiaries, and creditors through every stage of Texas probate, from will admission through final accounting.

Trust Administration

When a settlor of a revocable trust dies, the successor trustee steps into the administration role under the Texas Trust Code. Administration is private and does not require court involvement, but it carries specific fiduciary duties: notifying beneficiaries, providing accountings, paying debts and taxes, and distributing trust assets in accordance with the trust’s terms. We guide successor trustees through administration and represent beneficiaries when accountings or distributions raise concerns.

Out-of-State Clients with Texas Real Estate

Texas real estate owned by out-of-state residents is subject to Texas probate at the owner’s death unless held in a trust, by joint tenancy with right of survivorship (less common in Texas), or transferred via a Texas Transfer on Death Deed. The most common solution for out-of-state clients with Texas property is either a TODD or titling the Texas property in a revocable trust. Because our firm is licensed in California, Idaho, Texas, Washington, and North Carolina, we can structure this in a single coordinated engagement.

Schedule a Texas Estate Planning Consultation

Texas: (469) 535-6260

Our other offices:
Idaho (208) 696-2772 · Southern California (714) 464-5188 · Northern California (707) 207-8005 · Washington (206) 279-4780 · North Carolina (919) 363-9945

See also: Texas (state hub) · Estate Planning (pillar)

Disclaimer: The information on this page is general legal information about Texas estate planning and is not legal advice. Texas Estates Code provisions, small estate thresholds, and federal estate and gift tax exemptions change over time. Always consult a Texas-licensed attorney about your specific situation. No attorney-client relationship is formed by visiting this page.

Schedule a Free Consultation in Texas

Discuss your matter with our Texas team. Initial consultations are complimentary.

Texas: (469) 535-6260

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