There are several options you can explore if your goal is to avoid probate altogether.
The most popular way to avoid probate is by utilizing a revocable living trust. Having a trust is a little bit like going through probate while you’re still alive, and sorting your property into a vehicle that can only pass on what it owns.
There are two stages to estate planning with a revocable trust:
- Drafting the Trust: This entails drafting a trust the way you would draft a will. You will meet with your attorney and go over your needs and desires. The attorney will then draft the trust in accordance with those needs and desires
- Funding the Trust: A trust can only control what it owns, so the second step involves placing your assets in the name of the trust. This is a very important stage that can often be overlooked, especially when people do their estate planning by themselves.
I have personally seen cases where people walk into my office with a big, extensive binder that they say is their parents’ trust, only to find that the trust is useless because it was never funded. In cases like that, regardless of how much time, money, and intention were spent in putting together the trust, the estate will still need to go through the probate process.
So, I really encourage people to make sure they have an attorney to work with them to ensure that any trust they put together is funded. If you sell a house and you buy a new one, you need to make sure the house is titled in the name of the trust for the trust to have a control over the assets.
Another way of avoiding probate in smaller estates is to use pay-on-death beneficiaries. All of your accounts can be paid out in this fashion, in a way that will actually supersede a will. So, in other words, if I have an account that I leave to my sister through pay-on-death beneficiaries, but my will leaves everything to my children, my sister would still receive that account.
When it comes to real estate, there are also specific ways to avoid probate. This can include the transfer-on-death deed, or the ladybird deed. Both of these can act as sort of a mini-will just for real estate (commonly called real property). They can trigger an automatic transfer on the death of the grantor, and can serve as a much cheaper way to deal with the smaller estates than having to draft a will and go through the probate process.
What Is The Role Of My Attorney In The Probate Process?
The attorney will represent the executor in the probate process. This fact is often misunderstood. People commonly believe that the attorney represents the estate. In fact, the attorney does not represent the estate, because the estate will have many beneficiaries, so they represent just the executor instead. They assist the executor with meeting all the legal burdens of their duties. They also guide them along the process, letting them know what’s allowed and what’s required, ensuring that things are done correctly in accordance with Texas law and to ensure that the decedent’s wishes are carried out.
It’s always important to engage an expert probate attorney in these matters. Specifically, you want someone who has dealt with probate often in your county, who is familiar with your judge and the requirements of your local municipality, and who understands all the responsibilities of an executor so that nothing pops up later.
Can Someone Realistically Navigate The Probate Process On Their Own?
Again, whether or not someone can realistically navigate probate on their own depends on their circumstances and the circumstances of the estate.
If we’re talking about a very small estate with no will that only has a couple of bank accounts, then yes, a layperson could handle probate on their own.
If we’re talking about a probate of a will, Texas law requires an executor to have an attorney involved in the process to represent them, so no, a layperson could not legally handle probate on their own.
I always recommend that people should at least consult with an attorney and go over the decedent’s estate to see what needs to be done and what the options are. Very often, they can find a less expensive option than a full probate.
In more difficult cases where there is no will, an attorney can also help you avoid mistakes that can cost you money later on. For instance, some people in that situation will do an Affidavit of Heirship to transfer real property without probate, and will spend money and time on that only to find out later that something about the estate necessitates full probate. An attorney could have helped them foresee that issue.
What Are Some Of The Common Disputes That You See Arise During The Probate Process, And How Do They Affect The Probate Process?
I think the most common cause of problems and disputes seen during probate is forwarded expectations. People often let their children expect one result from their estate, only to have it revealed they die that their planning yielded a different result.
This same issue can be caused unintentionally by lack of planning. I see this very often. These are situations here, say, a husband or wife assumes their spouse will inherit everything when they die, because they’re married, and Texas is a community property state. Unfortunately, spouses without wills do not automatically inherit property in Texas, especially when there are children still alive. Perhaps the worst part of my job is telling a poor widow that the children from her husband’s first marriage, who never liked her, now own her house because of poor estate planning. If you’re married and your spouse has children from another relationship and does not leave a will, then their estate goes to their children rather than to you. This is one of the most misunderstood aspects of Texas Intestacy law.
Education is so important in these matters, because it helps people see that the law doesn’t just work based on what “ought” to be. Often, people don’t understand that even if, say, they expect their oldest child to know their wishes and to carry them out, the child may not actually be able to do that. Legally, their hands might be tied. In the end, if a property doesn’t have a will it will go the way the state decides it will go, and if that’s not the parents wanted it to go, their child has no ability to fix that.
Another problem I often see is when a number of children are given equal shares of a house without a will, and cannot agree on what to do with the house, or on what type of say their share gives them in what to do with the house. That can also be a very big conflict.
Yet another problem I see has to do with second marriages. Second marriages (and third marriages, and beyond) need a lot of special attention in estate planning. Most of the conflicts I see here have to do with what happens when someone dies and leaves everything to their current spouse. There is often an expectation that the surviving spouse will leave everything to the children when they die, which may or may not be the prerogative of the surviving spouse.
To address that type of issue, you need to have very frank conversations with the help of your estate planning attorney, in which everyone can express their concerns so they can be addressed ahead of time.
For more information on Probate Law In Texas, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (512) 355-0155 today.