Families are often told they must go through probate before they can do anything about a death. That is only partly true. Under Texas law one of the two claims after a fatal accident never goes through probate, and the other usually needs someone with authority to act for the estate. This article explains the difference and what probate involves in Bexar County.
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Two claims, and only one belongs to the estate
The wrongful death claim belongs to the surviving spouse, children and parents (Civil Practice and Remedies Code 71.004). They can bring it themselves, without any court appointing them, and the damages go directly to them and are not subject to the debts of the person who died (section 71.011). No probate is needed for that claim.
The survival action is different. It is the claim the person who died had for their own injuries, and section 71.021 says it survives “to and in favor of the heirs, legal representatives, and estate of the injured person.” It is usually brought by an executor or an administrator, and its proceeds pass through the estate to the heirs or under the will. That is where probate comes in.
When an estate representative is needed
- There is a will naming an executor. The will is offered for probate and the court issues letters testamentary to the executor.
- There is no will, but the estate needs someone to act. The court can appoint an administrator, who receives letters of administration.
- The family wants the executor or administrator to bring the wrongful death claim. If no family member has begun it within three calendar months, section 71.004(c) says the executor or administrator shall bring it, unless all of the family ask them not to.
Whether a representative is needed for the survival action depends on the estate and the claim. We look at that early, so that whoever brings the survival claim has the authority to do it.
Probate in Bexar County
Bexar County has three statutory probate courts: Probate Court No. 1, Probate Court No. 2 and Probate Court No. 3 (Government Code 25.0171(c)). Probate filings are handled by the Bexar County Clerk’s probate section, which the county lists at the courthouse at 100 Dolorosa, in the basement. A death in New Braunfels, Boerne or Seguin, or a person who lived in another county, may mean a different county’s court.
The four-year rule
The Estates Code sets a general limit. A will generally may not be admitted to probate after the fourth anniversary of the death unless the applicant was not in default (section 256.003), and an application for letters testamentary or of administration generally must be filed by the fourth anniversary of the death (section 301.002). Section 301.002(b) makes an exception where administration is needed to receive or recover property due to the estate. These rules are separate from the two-year deadline to file the wrongful death suit itself, which is much shorter.
Small estates without a will
For a person who died without a will and left a small estate, the Estates Code allows the heirs to collect the estate by a small estate affidavit approved by the court, without appointing a representative, if at least 30 days have passed, no application for a representative is pending, and the estate’s value, not counting the homestead and exempt property, is within the limit in section 205.001. Whether that route works where the estate holds a survival claim is something to decide with a lawyer, because the value of a claim is not known at the start.
Who inherits the survival money
If there is a will, the survival money passes under it. If there is not, the Estates Code decides. For a person with no spouse, the estate passes first to the children and their descendants, and if there are none, to the parents, with brothers and sisters sharing where only one parent survives (section 201.001). For a married person the rules are more involved, and they depend on whether property is community or separate (sections 201.002 and 201.003). This is why a brother or sister, who has no wrongful death claim, can still share in the survival money.
For more on the two claims, see wrongful death lawyer San Antonio. For the other records a family meets, see our family checklist.
This article is general information based on published sources as read in October 2026, not legal advice. Responsible attorney: Michael Uvalle, LAWBOSS – Harris, Nelsen & Uvalle, PLLC.
Questions people ask
Do we need probate to bring a wrongful death claim in Texas?
No. The spouse, children and parents can bring the wrongful death claim themselves under section 71.004. Probate matters for the separate survival action, which belongs to the estate.
How many probate courts does Bexar County have?
Three: Probate Courts No. 1, 2 and 3 of Bexar County, under Government Code 25.0171(c).