Can Probate Be Avoided in Texas?
Yes, there are many routes to avoid probate. Before the person passes, they can sign various documents to take care of assets where probate isn’t necessary. The purpose of probate is that some sort of asset that is in the decedent’s name needs to be taken care of. One such document is a transfer on death deed, designating who should receive an asset after your death. You still own the property and have every right to control the property, including selling it, revoking the transfer on death deed, or adding a new one, up until your death. It’s the same thing as financial accounts; there are beneficiary designations on those accounts, identifying who will take the property at the time of your passing.
It is important to keep copies of these transfer on death and beneficiary designation documents and keep them with your will. That way, when it comes time, the heirs have those available in the event the financial institution claims to not have documentation of the transfer. If you or an attorney can provide the copies to the financial institution it can help you avoid probate for that account. They may still not accept it, but at least that gives you an additional opportunity to allow them to correct the issue and not have to go through probate.
There are also options of affidavit of heirship or lady bird deeds, but these are less common and not guaranteed to be accepted by third parties. Probate is a guaranteed route of making sure assets are taken care of after the person passes.
What Happens When Someone Dies Without Having a Will in Place in Texas?
When somebody passes without having a will or a designation of how they wish their assets to be taken care of, the heirs-at-law must decide what they want to do with the estate. It depends on the situation who is defined as the heirs-at-law. Generally, under the law, that’s going to be the children of the decedent, spouse, and then parents or siblings; going up the family tree from there. If the person passed away not married, then their children can take everything. If they were married, it depends on if the children that they had are also the children of their spouse or if they weren’t. The children technically take some portion of the assets in either case. Depending on the family’s makeup, a will does help. If you want your spouse to take everything, regardless of who the children’s other parent is, then a will is going to help accomplish that.
In most cases, heirs will file with the court a Determination of Heirship and request for administration through probate. There are two types of administration, there’s dependent and independent. If possible, independent administration is the preferred choice. You don’t have to go to court as often to take care of things, but all the heirs must agree. If the heirs don’t agree, someone must apply to be the administrator. That person will have to go to court more often to settle affairs and will be subject to increased liability and requirements.
When Should I Actually Do an Estate Plan?
Everyone over the age of 18 should do an estate plan to help their heirs take care of assets after they’ve passed. Obviously, the younger you are, the less likely you will have assets to be taken care of. If you have a plan in place, it will help those you leave behind to take care of things after you’re gone. That’s where the conversation needs to start, early and often. You need to assess regularly, yearly or every five years, to ensure the laws haven’t changed.
In the worst-case scenario, we get somebody who unfortunately passes away young with a sizeable financial account with no beneficiary designation on it. Now, we’re talking to parents, it’s an additional burden on those persons who are grieving the loss of a child. They are trying to gain the assets to take care of whatever needs to be taken care of. So, everyone over the age of 18 should at least be looking into estate planning.