• Carmen Zajicek

Is Probate Necessary For All Estates?

Losing a loved one is a difficult, emotionally draining process. It’s tough to pack up someone’s entire life and deal with the grief that lies ahead. The last thing bereaved family members need is a grueling probate process over the assets they left behind.

Simply put, probate is the process of resolving any challenges in the distribution of the estate. The legal procedure requires obtaining the permission of a judge to pass on the assets left behind to their respective beneficiaries.

However, you may not be able to escape it in certain circumstances. The value and size of the property, the state in which they held the property, and how the property was held are all aspects that factor into the necessity to probate.

Distributing the assets left behind by the deceased need to be properly—and legally—passed on to their rightful heirs. Without going through the correct channels, you may face legal troubles from spiteful relatives who feel like they’ve been dealt the short end of the stick.

So when is probate necessary?

If you have assets that are subject to your WillMany people see probate as a complex process that must be undertaken when someone dies without a will. In Texas, I’d say it’s a much cheaper and shorter process than in many states. However, you may pass away while in another state and be subject to that state’s probate system, which is probably much more expensive and time consuming for your beneficiaries. Plus, we don’t know what the Texas Probate system will be like in the future. Accordingly, we find that most people still would like to try to avoid probate. However, not many people take all the necessary steps to attempt to sidestep probate.

If you didn’t leave a valid Last Will & Testament

For decedents who didn’t leave a last will and testament, the state intestacy laws come into effect to distribute the inheritance accordingly. Some people never make a Will. Sometimes the Testator or the executor or beneficiaries cannot find the Will. Sometimes the original Will cannot be found, but there is a copy of the Will. Each of these situations oftentimes results in a heightened court proceeding with added time and costs. This requires a more extensive court process.

If a living trust isn’t present or properly funded

Revocable Living Trusts are a viable way to transfer property to avoid probate, but many people may fail to do set up a living trust, or maybe they set one up but don’t properly fund the living trust. A living trust outlines your wishes regarding the distribution of your assets. You can name yourself as a trustee who’ll manage the trust and appoint a successor who’ll distribute the trust after you pass away.

By skipping the appointment of an executor and personal representative, you can completely forego the probate process. It’s best to review with your attorney whether your circumstances may allow you to completely avoid probate. Remember that even if your situation today looks like you should be able to avoid probate, it’s important to understand that your future circumstances could be different and thus necessitate probate. It’s best to work with an attorney on an ongoing basis to make sure that you’re getting the best legal advice for your given situation in life, and as we all know, things tend to change over time.

Lack of beneficiary or joint owner with rights of survivorship

A common reason that properties end up going to probate is when asset is owned by the deceased without a properly named beneficiary or without a co-owner who has rights of survivorship. If there’s a joint tenant with rights of survivorship, then the asset should pass to that joint owner fully and easily and avoid probate. If there’s a beneficiary named on the account, then the asset should avoid probate and go directly to such beneficiary. Problems arise when there’s a joint owner, such as a tenant in common, without rights of survivorship. That is the primary problem with Texas home ownership because it defaults to tenants in common instead of JTWROS.

Protect your property and loved ones with us

If you’re in San Antonio, Austin, or Houston, Mike Massey Law can help you through the probate process. As experienced probate lawyers, we’ll tirelessly work to provide hassle-free, stress-free, and affordable services.

That’s not all, if you want to make sure your family doesn’t have to go to probate, we can help you create provision for that. As living trust lawyers and estate planning attorneys, we’ll walk you through the best solutions depending on your estate size and type.

Call us at 888-407-2407 for a free initial 10-minute consultation to get started.

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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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