Guardianship and Probate in Texas

In the state of Texas, understanding the legal processes of guardianship and probate is important for individuals and families navigating legal matters related to estate planning, asset distribution, and the care of loved ones. If you have been appointed to be the guardian of a person or the guardian of the estate during probate, you may have questions about what your new role entails. You may be unsure of your ability to carry out your new responsibilities and are looking for guidance on how to be a proactive guardian. Or you simply may be curious to learn more about this aspect of Texas probate law. Learn more about the most common probate and guardianship questions and how to navigate this legal challenge.

What is a Guardianship?

During probate, guardians are often appointed for those who are unable to handle their newly received assets properly, such as a minor or an individual who is otherwise incapacitated and cannot handle managing an estate.

From the Texas Estates Code:

“A court may appoint a guardian with either full or limited authority over an incapacitated person as indicated by the incapacitated person’s actual mental or physical limitations and only as necessary to promote and protect the well-being of the incapacitated person.”

A guardian refers to the individual placed in charge of those deemed incapable of responsibly taking care of the estate and assets entrusted to them.

Types of Guardianship in Texas

  • Minor Guardianship: Minor guardianships are court-supervised procedures that permit an individual such as a grandparent or other concerned individual to become a child’s guardian. The court may appoint a guardian for a person under the age of eighteen years, who is in need of an adult, other than the parents, to make legal decisions for the care of a minor. Applicants must be screened for suitability, but once established, the guardianship ends only upon the child reaching eighteen years of age, or if the court determines that the need for guardianship has ended.
  • Incompetent Guardianship: An adult person, who is eighteen years of age or older, who cannot make decisions about his/her legal rights due to illness, a mental condition, or injury, is referred to by the law as an incompetent person. For example, an elderly person who suffers from dementia may be determined to be an incompetent person who is in need of a guardian. A person who sustained severe injuries in an accident and is unable to manage his/her affairs for a time may also need a guardian.
  • Emergency/Temporary Guardianships: In the case of emergency, guardianships may be assigned temporarily for a period of 72 hours.

Who Needs a Guardian in Texas?

There are multiple reasons why a person may be assigned a guardian during Texas probate. The most common is that a person is assigned a guardian because of some form of incapacity to handle the assets of the estate, or due to physical or mental disability. An individual may be assigned to be the guardian of the person, a guardian of the estate, or both, depending on the circumstances of a particular probate case.

Responsibilities of a Guardian in Texas

A guardian in Texas must meet all legal responsibilities established by the court. Guardians are held to high standards of behavior when it comes to the duty of care they have for their wards. A guardian’s responsibilities can include:

  • Posting a bond in an amount set by the court and taking an oath to assure that he or she will fulfill their duties and responsibilities. The bond is an insurance policy that protects the assets of the ward should the guardian’s actions to create financial loss to the estate.
  • Managing estate assets in their ward’s best interests.
  • Providing for their ward’s needs (clothing, food, shelter, education, medical care, etc.) to the extent allowed by the ward’s funds and resources.
  • Filing an annual account, detailing the estate’s receipts and disbursements during the year.
  • Filing an inventory of the ward’s assets.
  • Asking the court’s permission and approval for some actions taken on behalf of the ward.

In Texas, any qualified individual can be appointed as a guardian, provided they are over 18 years old, have no legal disabilities, and pass a background check. The court considers factors such as the potential guardian’s relationship with the ward, their ability to fulfill the necessary duties, and their willingness to serve in the best interest of the ward.

The Guardianship Process

Establishing guardianship in Texas involves a legal process that requires filing a petition with the court. The petitioner, usually a family member or concerned individual, must demonstrate the need for guardianship and present evidence supporting their case. The court will evaluate the circumstances and determine whether guardianship is necessary to protect the ward’s interests. The court plays a critical role in the guardianship process, overseeing the appointment of guardians and ensuring that the ward’s interests are protected. The court may require periodic reports from the guardian to assess the ward’s well-being and monitor the guardian’s compliance with their responsibilities.

Understanding Probate Law in Texas

What is Probate?

Definition Probate is a legal process supervised by a court that validates a deceased person’s will (if one exists) and oversees the administration of their estate. The primary purpose of probate is to provide a transparent and orderly method for transferring ownership of assets from the deceased person (referred to as the decedent) to their beneficiaries. It protects the rights of heirs, resolves disputes, and ensures the proper fulfillment of the decedent’s final wishes.

The Probate Process

The probate process typically begins by filing a petition with the probate court in the county where the decedent resided at the time of their death. The court reviews the petition, verifies the validity of the will (if one exists), and appoints an executor or personal representative to oversee the administration of the estate.

The probate court plays a crucial role in overseeing the probate process. It ensures compliance with applicable laws, resolves disputes or challenges, and provides necessary guidance throughout the administration of the estate.

Not all assets are subject to probate. Only assets owned in whole or in part by the decedent that do not have a designated beneficiary or, in the case of a bank account, a joint owner, must go through the probate process. Assets such as life insurance policies, retirement accounts with named beneficiaries, and jointly held property with rights of survivorship typically bypass probate and pass directly to the designated beneficiaries.

Common Probate Challenges

Contested Wills: Disputes or challenges to the validity of a will can arise during the probate process. This may occur if there are allegations of undue influence, lack of capacity, or improper execution of the will. Resolving these contested wills requires legal intervention and can prolong the probate process.

Estate Taxes: Another common challenge in probate involves estate taxes. Depending on the value of the estate, federal and state estate taxes may apply. Proper planning and understanding of tax laws can help minimize the tax burden on the estate and ensure compliance with tax obligations.

Guardianship vs. Probate in Texas

Guardianship and probate are distinct legal processes, each serving unique purposes in Texas law. Each one of these legal processes have their own purpose and typically occur at different times. 


Guardianship: Guardianship is primarily about providing care, support, and decision-making authority for individuals who are unable to make decisions for themselves, such as minors or incapacitated adults.

Probate: Probate, on the other hand, deals with the distribution of a deceased person’s assets, payment of debts, and the transfer of property after death.


Guardianship: Guardianships typically become necessary when an individual is alive but incapable of managing their personal and financial affairs.

Probate: Probate occurs after an individual’s death.

Legal Process

Guardianship: Guardianship involves court proceedings to appoint a guardian who will oversee the affairs of an incapacitated person.

Probate: Probate is the legal process that takes place to settle a deceased person’s estate, which may or may not involve court proceedings.

Scenarios Where Probate & Guardianship May Both Be Necessary

While guardianship and probate usually address separate issues, there are situations where they intersect or overlap.

Guardianship of a Minor After a Parent’s Death: In cases where a minor’s parent has passed away and left assets, the probate process might be necessary to handle the deceased parent’s estate. Simultaneously, a guardian may be appointed to care for the minor’s well-being and manage their inherited assets.

Incapacity During Probate: If an individual involved in the probate process becomes incapacitated, a guardianship may be required to make decisions on their behalf while managing their assets during the probate proceedings.

Alternatives to Guardianship

Texas law offers many alternatives to guardianship, including:

Benefits of Hiring a Probate Attorney

Both guardianship and probate processes can be legally complex. Hiring an experienced attorney is often advisable to navigate these areas efficiently and ensure compliance with Texas law.

Guardianship Attorney: When seeking guardianship, an attorney can assist you in preparing the necessary documentation, representing your interests in court, and helping you understand your responsibilities as a guardian.

Probate Attorney: If you’re dealing with probate, a probate attorney can guide you through the legal procedures, help you create or interpret a will, address potential disputes, and ensure a smooth distribution of assets.

Work With an Experienced Texas Probate Attorney

Guardianships can be expensive and require a probate attorney to work on behalf of the guardian to ensure that all fiduciary responsibilities are met and are performed in the best interest of their ward. At Forbes and Forbes, we have helped clients seeking to obtain guardianship over minors and incapacitated adults, and are more than happy to answer your questions about guardianships during the probate process. For more information about guardianships, contact us today to discuss the circumstances of your case with one of our experienced probate attorneys.

*This article has been updated with new information

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