The probate process in Texas is often long and complicated. It can involve many steps, most of which are unfamiliar to the average person. One of the most important steps in the process is the free and voluntary act. This step is so important that it has its own section in the Texas Estates Code.

This blog post will discuss the free and voluntary act under Texas probate law and how it affects you when distributing your estate after death. We will explore what it means for an act to be considered “free and voluntary” and what happens if a beneficiary does not agree with a particular action taken by the executor or administrator of your estate. Additionally, we’ll look at what happens if a court challenge arises as a result of this step in the probate process.

What is probate in Texas?

Probate in Texas is a legal process whereby the court supervises the administration of a deceased person’s estate. The purpose of probate is to ensure that the deceased person’s debts are paid and that their assets are distributed according to their wishes.

The first step in probate is for the executor of the estate to file a petition with the court. The executor is typically appointed in the will, but if there is no will, the court will appoint an administrator. Once the petition is filed, the court will issue letters testamentary, which give the executor or administrator authority to act on behalf of the estate.

The next step is for the executor or administrator to give notice to all interested parties, including creditors and beneficiaries. Once all interested parties have been notified, they have a certain amount of time to file claims against the estate.

Once all claims have been resolved, the executor or administrator can distribute the assets of the estate according to the terms of the will or, if there is no will, according to state law.

Probate can be a lengthy and complicated process, but it is important to make sure that your loved one’s final wishes are carried out properly. If you have any questions about probate in Texas, you should speak with an experienced attorney who can help guide you through this process.

What are the requirements for a valid will in Texas?

In order for a will to be valid in Texas, it must be in writing and signed by the testator (the person making the will) or by another person at the testator’s direction. The signature must be made in the presence of two witnesses, who must also sign the will. Alternatively, the will can be signed by a notary public.

There are a few other requirements for a valid will in Texas. For example, the testator must have “testamentary capacity” – meaning they must understand that they are making a will and know what property they are leaving behind. The will must also be “free and voluntary” – meaning it was not made under duress or coercion.

If all of these requirements are met, then the will is considered valid in Texas. It is important to note that even if a will is not technically valid, courts may still honor its provisions if it is clear that the testator intended for it to be their final wishes.

What are the consequences of dying without a will in Texas?

If an individual dies without a will in Texas, their estate will be subject to intestate succession laws. This means that the court will determine how the deceased person’s assets will be distributed among their heirs. The distribution of assets will be based on the closest relatives of the deceased person, which could be their spouse, children, parents, or other family members.

The intestate succession laws in Texas may not always distribute a person’s assets in the way that they would have wanted. For example, if an individual dies without a will and they are survived by their spouse and children, the spouse will typically receive all of the deceased person’s community property. The children of the deceased person will only inherit their parent’s separate property, which could be less than what they would have received if their parent had created a Will.

Creating a Will is the best way to ensure that your assets are distributed according to your wishes after you die. If you die without a Will in Texas, your family may have to go through probate court and deal with additional stress and expense.

Texas Case Law

Luna v. Estate of Rodriguez

906 S.W.2d 576 (Tex. App.—Austin 1995, no writ)

Probate Case Summary

Luna v. Estate of Rodriguez was a case decided by the Court of Appeals of Texas in 1995. The case involved a dispute over the validity of a will and the distribution of the decedent’s estate.

The decedent, Maria Rodriguez, died in 1992 and left behind a will that appointed her sister, Dolores Luna, as the personal representative of her estate. The will also left all of the decedent’s property to Luna.

However, Rodriguez’s other sister, Matilda Lopez, contested the will, claiming that it was the result of Luna’s undue influence over Rodriguez. Lopez argued that Luna had taken advantage of Rodriguez’s poor health and mental state to coerce her into signing the will.

The trial court ruled in favor of Luna, finding that the will was valid and that Luna was entitled to serve as the personal representative of the estate. However, the Court of Appeals of Texas reversed this decision, finding that Luna had failed to prove that the will was the result of Rodriguez’s free and voluntary act.

The court also found that Luna had a conflict of interest as the beneficiary of the will and the personal representative of the estate, and that she had not properly discharged her duties as personal representative. As a result, the court appointed a new personal representative to administer the estate and ordered a new distribution of the decedent’s assets in accordance with Texas law.


The case of Luna v. Estate of Rodriguez is an example of the importance of following proper probate procedures and the need to ensure that a will is the result of the decedent’s free and voluntary act. It also highlights the role of the court in overseeing the probate process and ensuring that the decedent’s wishes are carried out in a fair and equitable manner.

Do you need an Experienced Probate Attorney to help?

When a person dies, their property must go through a legal process called probate. Probate is the court-supervised process of distributing a deceased person’s assets to their beneficiaries. If the deceased person had a will, the probate court will follow the instructions in the will. If the deceased person did not have a will, their assets will be distributed according to Texas law.

The probate process can be complicated and time-consuming. An experienced probate attorney can help you navigate the process and ensure that your loved one’s assets are distributed according to their wishes. 

Looking for experienced probate attorneys in Austin, Texas? Our team can help guide you through the complex process of administering an estate. We offer a range of probate services, including independent and dependent administration, muniment of title, small estate affidavit, and affidavit of heirship. Contact us today to schedule a consultation.

Call us today for a FREE attorney consultation. (512) 273-7444.

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