The strong emotions that come with a love one’s passing are often followed by bewilderment when survivors realize all of the financial and legal steps they must take to settle their affairs. The spouse who passed away may have handled all of the couple’s finances, leaving the other uninformed and overwhelmed. Or perhaps a caregiver must begin probating an estate which he or she knows little about. In some cases, the estate itself may be in disarray or scattered among many accounts or assets. Probate can be intimidating but understanding how the process works and having some expert legal tips at your disposal will help you execute your duties confidently and correctly. The probate timeline takes a while to complete because its designed to prevent the executor from making hasty decisions rooted in grief. It also allows plenty of time for notifying all beneficiaries and creditors, as well as completing all final financial transactions before the estate is closed. A clear understanding of how the basic probate timeline works can ease the stress of this challenging, and often lengthy process. In Texas, the probate process is just that, it is a process; and sometimes that process can be bumpy and involves needing legal representation. When there is no will, or estate plan and especially when heirs are fighting, not only is it bumpy; it can be a labored, delayed and COSTLY process. It can be said with great certainty that disputes can cause major delays in the probate process and be more expense. It’s important, when reviewing this process to see the value of having an estate plan.
So, is there a way to just avoid the probate process all together?
Simply having a will does not avoid probate; in fact, a will must go through probate. To probate a will, the document is filed with the court and a personal representative is appointed to gather the decedent’s assets and take care of any outstanding debts or taxes. The personal representative can then distribute the decedent’s assets to the heirs. Fortunately, Texas is among the most efficient probate systems in the country. Texas allows for Independent administration, which allows the executor to administer the estate without court involvement once appointed. If the person who passed away had a trust, bringing this instrument to your first consultation with a probate attorney will allow the attorney to investigate if there is a need to even probate the estate. Trust planning will often times allow us to avoid the probate process all together. It should also be said that having a trust in place will not always help you avoid probate but checking the trust first will be an important step to take and a board-certified estate planning and probate attorney would know to do that. If you can avoid probate with a trust and have your assets pass directly to your heirs without the involvement of the probate court, you want to do so.
One way to show your loved ones you really care, that can help you avoid probate all together, is with a Revocable Trust. A Revocable Trust is of the most common ways to avoid probate. Through a Revocable Trust, the person writing the trust (the grantor) must “fund the trust” by putting the assets he or she chooses into it. The grantor retains control over the Revocable Trust’s property until her death or incapacitation. At that point, the Revocable Trust is turned over to the successor trustee, who had been chosen by the grantor and who will distribute trust property according to the grantor’s wishes. All of this happens outside the purview of the probate process.
Whether you consider making a will, which can help expedite probate and make things move along nicely or you consider creating a trust that will avoid probate altogether; it’s always a good idea to find ways to facilitate the process of probate. My personal goal for my clients is to allow easy transfer of assets directly from the decedent to the beneficiaries or maintain the assets in a trust with no further action needed until a next death.