A Texas will is going to dispose of any assets and affect any property that is located here in Texas. If you have property in another state, it is governed by the laws of that state. In many cases, a will written in Texas may be enough to execute an estate fully. However, it is always best to consult an attorney in the non-Texas state to see what the probate process is in that specific state. It is never a good idea to simply rely on having a will in one state and expect that to work perfectly for property in other states.
Instead, if you own property in another state and in Texas, you should factor that dual-state property ownership into your estate plan. People who have property in several states are often excellent candidates for living trusts, which are universally workable in every state, and don’t necessarily need to be updated every time you move between states the way a will does.
Do I Need An Austin, Texas Estate Planning Attorney, Or Can I Do This On My Own Or With One Of Those Online Estate Planning Tools?
I would say that generally, you are safest going with an estate planning attorney in Texas. You certainly should not rely exclusively on online estate planning services.
When we get this question, one joke we tell in the office is that if I were really business savvy, I would tell everyone to try the online estate planning services, since I make a good deal of money from the mistakes those online services leave in their wake.
In all seriousness though, while those online programs occasionally work for people, they very frequently do not work at all. Estate planning documents are not something you want to leave up to chance.
I have seen a number of cases where people tried to save a few hundred dollars by making their own will with an online service. Of course, these wills were not written accurately or skillfully, thus seriously complicating the probate in each case and causing much more expense down the road. By saving a few hundred dollars with online programs, your estate may lose a few thousand dollars from a difficult probate caused by just a few missing words.
Estate Planning is so highly specialized that we don’t even encourage other attorneys who aren’t estate planning specialists to write their own estate planning documents. Case in point, we had a Texas Supreme Court justice who did his own will many years ago, despite not being a specialist in estate planning. He left out a few key phrases, which ended up costing his estate hundreds of thousands of dollars.
Similarly, in one cases we handled locally, we had one very well respected, brilliant community leader in our area who thought he could write his own will. When he died, it turned out that he had miswritten a few key phrases, and his son had to post $80,000 bond every year until his estate was finally closed out.
When it comes to writing your own will, it can technically be done. However, I absolutely do not advise it, because I have seen it cause a lot of complications. Even if you think it will save you money, this is one of those things where you’re “saving” money to spend in the long run. A few recommendations and a few changes can really make all the difference.
Is Probate As Bad As We Hear?
No, probate is not as bad as most people think. This is one of the things that I really try to educate my clients about.
If you have a well-written will, probate is nothing to be afraid of.
In Texas, we have what’s called Independent Administration. Unlike California, Ohio, Florida, and other states where you have to go to the Court for every single thing, Texas allows you to administrate your estate independently. What that means is that once a will is admitted to probate (i.e., checked to see that it meets the minimum qualifications for a legal will), and once the executor has qualified (i.e., proven that they are a real person who is not a felon and lives in Texas), then the administration of the estate happens largely independently, without Court oversight. Most of the activities after the probate hearing are done independently. In Travis County, the probate process itself usually takes about six weeks to get into.
Personally, I do not believe that probate is anything to be afraid of. I have known many attorneys who just try and sell living trusts because they can charge $10,000 for them, and who try and scare people into being afraid of probate to sell more trusts. The fact is, for some people, a trust is not the right vehicle, and a will is a better option. I think it’s always best to consult with an attorney to find the vehicle that works best for you, but I would not make decisions out of fear, and I certainly would not make decisions out of fear of probate.
What Factors Set The Stage For A Probate To Occur In Texas?
Basically, probate occurs when there is a need for administration.
If someone passes away and they have an estate that needs to be handled, there are many things that have to be done to handle that estate. Decisions have to be made, assets need to be gathered, final creditors and bills need to be paid, and then everything remaining needs to be distributed.
When there’s a need for administration of the estate (or, a need for someone to do all of those things), then the will is admitted to probate and an administration is opened. The executor of the estate is in charge of the administration of the estate. They are in charge of going through the motions and ensuring that the will is followed correctly and legally.
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