When a loved one passes away leaving a Will, family members face the legal task of probating the Will. They use the probate process in Texas to wind up the affairs and transfer title and ownership of the decedent’s property among the beneficiaries in the Will. If the decedent owned different types of real and personal property, some of it may pass through the probate estate and some of it may be non-probate property. Family members in Pflugerville or Cedar Park may wonder, what is a probate estate and how is it distributed in the probate process? In this article we will give a basic definition of the probate estate and compare non-probate and exempt assets. If you need help probating a Texas Will, contact Austin probate lawyer Farren Smith for a consultation.
Different Types of Property
The decedent can only pass through his Will and estate property that he owned. Assets that pass by a Will are known as probate assets or the probate estate. However, not all property owned by a decedent passes through his Will. There are non-probate assets that do not go through the probate process. There are also exemptions for certain kinds of property that do not pass through probate.
Non-probate assets do not pass through the probate process, but instead are handled outside of the court. Many times these assets are contractual, such as life insurance or certain bank accounts. Common examples of non-probate assets include:
- Joint accounts with rights of survivorship;
- Assets with designated beneficiaries, including retirement accounts, IRAs and life insurance policies;
- Assets of the decedent with a pay-on-death (P.O.D.) designation;
- Assets owned by the decedent with a transfer-on-death (T.O.D.) designation; and
- Real property owned by the decedent as Tenants by the Entirety.
Some types of property are protected by Texas law from being distributed and may be set aside as exempt from the probate estate. For example, certain family members such as the decedent’s surviving wife and minor children have a constitutional right to use the homestead after a person dies. Some personal property up to a certain value may also be exempt, such as home furnishings, heirlooms, farming vehicles, athletic equipment, two firearms, and a Bible.
Exempt assets are included in the probate process, but are set aside during the probate process in court.
Probate assets include:
- Assets titled in the decedent’s name only with no beneficiary designation or right of survivorship (separate property if the decedent was married);
- The decedent’s portion of assets owned as tenants-in-common, such as his half of a community property home owned with a surviving spouse; and
- The decedent’s portion of assets owned as joint tenants without rights of survivorship.
Often family members hire a Texas probate attorney to help them with the details and paperwork of probate assets.
Contact us and let an Austin probate attorney help you through the probate process and effectively distribute the loved one’s probate estate.
- Tex. Const. Art. XVI,