As your estate planning attorney, I can help you weigh the pros and cons of probate and give you an idea of the probate costs and time frames in your jurisdiction. If you decide you want to avoid probate, here are the principal ways to do it:
1. Create a revocable living trust (RLT) and transfer your assets into it.
If you name yourself as the trustee, you will keep control over the assets. You can amend or revoke the trust at any time When you die, the assets pass to your beneficiaries outright or in trust as you have specified in the trust document without going through probate. This method gives you the most flexibility but is the most expensive. It is important to note; 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.
2. Hold property with one or more other persons as joint tenants with rights of survivorship.
When you die, your interest in the property passes to the other joint tenant without the need for probate. Joint tenancy has a number of potential drawbacks. You and the joint tenant will have equal ownership rights in and access to the property and you cannot revoke a joint tenancy. If the property is real estate, all joint tenants need to agree on property management decisions. If the property is a bank account, any joint tenant can withdraw the entire balance.
3. Execute a transfer on death deed for real estate and pay on death document for financial accounts and securities.
With a transfer on death deed, when you die, the subject property passes to the beneficiary named in the deed without going through probate. The beneficiary has no rights in the property until you die and you can revoke the deed. However, these deeds are available only in a limited number of states. Similarly, a pay on death account passes to the beneficiary on your death without the need for probate. The beneficiary has no right to the funds in the account while you are alive.
4. Complete beneficiary designations for life insurance and retirement accounts naming someone other than your estate.
If your estate is the beneficiary, the funds will need to pass through probate. Similarly, if you don’t complete your beneficiary designations, on your death, insurance proceeds and the balance in your retirement accounts will pass to your estate and will require probate.
5. Give property away to your intended beneficiaries before you die.
Any property you don’t own when your die will not need to be probated. Making gifts while you are alive can also be an effective strategy for reducing estate taxes, although very few estates are large enough to incur estate taxes.
Notice that a will is not included in this list. Disposing of probate assets in a will does not avoid probate. In some cases, you may need more than one of these options to fully avoid probate. If you decide that you want your estate to avoid probate, I can help you choose and implement the most appropriate methods for your property and estate planning goals.
In Texas, the probate process is just that, it is a process. It involves needing legal representation. It has the potential to be a smooth process. When there is no will, or estate plan and especially when heirs are fighting, it can be a labored and delayed process. It can be said with great certainty that disputes can cause major delays in the probate process and be more expense. It is important, when reviewing this process to see the value of having an estate plan. 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. Grief tends to linger near the surface when you are the one in charge of a recently deceased family member’s estate through the lengthy probate process. While this may tempt you to rush through the probate timeline, doing so is impractical and often impossible. Probate of a loved one’s estate can sometimes be necessary after they pass away.
Navigating the court process while you are grieving can be overwhelming. Conversely, by having action steps in place with a will or trust, you can help reduce the stress and suffering of the loved ones you might leave behind.
As a Texas state board-certified estate planning and probate attorney, I work to find the least time-consuming process available to transfer your loved one’s assets to the intended heirs and beneficiaries. I hope this book has provided you with the information you need about the probate process in Texas and “what it looks like”. I hope after reading this you feel more comfortable about moving forward with the probate process even though you may be in a situation of grief. It is important to move forward in a timely manner and not miss out on important probate deadlines.