To Probate, or Not to Probate…

Posted on February 2, 2016

by Margie Connolly

Margaret McCullough Connolly, Sugar Land Attorney and Counselor at Law

Probate court proceedings (during which a deceased person’s assets are transferred to the people who inherit them) can be long, costly, and confusing. In addition to dealing with the loss of a loved one, the added stress of probate proceedings leads good planners to find other ways to transfer the assets.

There are several ways to avoid probate in Texas.

  1.  Living trusts You can make a living trust to avoid probate for virtually any asset you own — real estate, bank accounts, vehicles, and so on. You need to create a trust document (it’s similar to a will), naming someone to take over as trustee after your death (called a successor trustee). Then — and this is crucial — you must transfer ownership of your property to yourself as the trustee of the trust. Once all that’s done, the property will be controlled by the terms of the trust. At your death, your successor trustee will be able to transfer it to the trust beneficiaries without probate court proceedings.
  2. Transfer-on-death deeds for real estate beginning September 1, 2015, Texas allows you to leave real estate with transfer-on-death deeds. These deeds are sometimes called beneficiary deeds. You sign and record the deed now, but it doesn’t take effect until your death. You can revoke the deed or sell the property at any time; the beneficiary you name on the deed has no rights until your death.
  3.  Joint ownership If you own property jointly with someone else, and this ownership includes the “right of survivorship,” then the surviving owner automatically owns the property when the other owner dies. No probate will be necessary to transfer the property, although of course, it will take some paperwork to show that title to the property is held solely by the surviving owner. 4. Special provisions for small estates.  Probate can be avoided with the use of an affidavit of heirship or a small estate affidavit if the bulk of the estate includes the decedent’s homestead and other assets of less than $50,000.00 value.

Consult an estate planning attorney for more information.

This document does not constitute legal advice. It is to be used for descriptive purposes only. Please seek the advice of a competent lawyer in your state.