Probate vs. Avoiding Probate

Non-Probate assets avoid probate. Examples: If you have a bank account, IRA, 401k, etc. with a properly designated beneficiary, then that asset could avoid probate. By operation of law, the asset would pass to the properly designated beneficiary. This could be good if you wish to avoid probate. It could be bad if you wanted the asset to belong to or to pass to your trust, but you instead name a person or entity other than your trust. You could also have problems if that beneficiary designation is stale, and names someone who is an ex-spouse or deceased, for example.

JTWROS (Joint Tenants with Rights of Survivorship) belongs to the co-owner upon the 1st owner’s death (in Texas). This could be good in certain cases, but it could be bad if you die simultaneously without having a proper beneficiary designation on file. It could also be bad if your joint owner is a child and you really wanted the asset to be distributed among several beneficiaries and not solely to your joint owner.

Assets properly owned by the trust prior to death will avoid probate. Assets properly listing the trust as beneficiary will also avoid probate as they will be payable to the trust and your trustee can facilitate such transfer post-death.

Generally speaking, non-probate assets, or assets with stale or improper beneficiary designations will likely have to be probated so that the executor can get letters testamentary in order to facilitate the proper distribution of such assets as part of the estate.

Consider that your assets might need to be probated in each county and/or state where located. For example, if you own property in TX plus 2 other states, then you may potentially have to probate in multiple states, which could prove burdensome and costly. However, some states may make it easier on you than others, and not require a separate probating of the Last Will & Testament.

Assets that tend to give people “probate headaches” and unintentionally force probate include the following:

  • Real Estate: Why? People forget to re-title their real estate or to buy their future properties in the name of the trust, or they don't own their property WROS (with Right of Survivorship).

  • Mineral Rights: Why? People forget to get the deeds set up properly.

  • Cars, boats, trailers, etc: Why? People forget to re-title theses assets or to buy their future cars, boats, trailers, etc. in the name of the trust.

  • CD’s and Individual Bonds: Why? People forget to re-title these assets or name the trust as beneficiary, or they think these instruments may mature prior to their death(s), but this is not guaranteed to happen.

Mike Massey Law can help you with your Last Will & Testament, Living Trust, Durable Power of Attorney, Medical Power of Attorney, Living Will, HIPPA Release, Transfer on Death Deed, Cremation/Burial Wishes, Pre-Need Guardianship, Guardianship preference for Minor Children. Local Texas Attorney/Lawyer may be able to help you with estate planning. Call 512-757-9065 or Email:

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Mike Massey JD, MBA, MPA just might be the 195th most interesting person in Texas. He has 4 college degrees and he's working on a 5th:  BBS Accounting; MPA Master's in Professional Accounting; JD Law Degree; MBA Master's in Business Administration; BBS in Biblical Studies (in progress).

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