Most thoughtful adults want to ensure that their loved ones will be cared for if anything
unexpected happens. A well-considered estate plan allows you to protect your family’s future
and make certain that your hard-earned assets pass smoothly to your beneficiaries and are not
wasted on delayed court processes and attorney’s fees.
When creating your estate plan, it is crucial to understand which assets are included in your
estate and subject to the probate process in Texas. Otherwise, even with a will, your gifting
intentions may not work as you desired. Comprehension of this topic can help you make
informed decisions about how you wish to structure your estate plan. For the most up-to-date
legal advice tailored to your unique situation, you should reach out to a knowledgeable Texas
estate planning lawyer who can assist you in crafting a plan that meets your family’s needs.
What is Probate?
People accumulate assets throughout their lifetime. Assets can include personal belongings,
real estate, furniture, royalties, money, retirement accounts, vehicles, collections, and other
property. These assets make up what is known as an individual’s “estate.” When a person
passes away, the ownership of these assets is transferred to someone else. If there is a valid
Will admitted to probate, the assets will be transferred according to the terms of the will. If
there is no valid will, the assets will legally pass through a determination of a court according to
the provisions of the Texas Estates Code.
Probate is the legal process of collecting assets, settling lawful debts, and distributing the
deceased’s estate. If the individual had a will, probate involves:
● Certifying the individual’s death.
● Authenticating the will.
● Paying any debts owed by the estate.
● Distributing remaining assets to beneficiaries based on the terms of the will.
The probate process becomes much more complex if a person dies without a valid will. Without
a will to follow, the court must determine how to distribute the estate to the surviving family
members based on the state’s probate laws.
Why is There So Much Discussion Around Avoiding Probate?
Most articles that mention probate also include information on how to avoid it. But why is this a
goal that many people have? The main reason is that probate can be a long, costly legal
process for your grieving family members. If a will is not clearly written or there are questions
about its authenticity, the process may take many years to resolve and enormous legal fees.
Choosing an inexperienced probate attorney can result in substantial delays, even the simplest.
During this time, your family will be unable to access the assets that are under probate.
Although many people think that estate planning is only for those with large estates, it can
actually be most critical for families of more modest means who can least afford a prolonged
financial disruption after the loss of a loved one. A proper estate plan considers the special
circumstances of a specific estate and aims to ensure the financial stability of those important to
What Are Non-Probate Assets in Texas?
Other methods of transferring assets to beneficiaries that do not involve a will or probate exist.
Generally, any asset that involves a beneficiary designation form can typically pass outside the
will and avoid probate.
These are known as non-probate assets and can include:
● Insurance policies
● Joint bank accounts or accounts designated as payable-on-death (POD)
● Investment accounts
● Annuity contracts
Is Texas a Community Property State?
Texas is one of nine community property states. In a community property state, most property
purchased or acquired during a marriage is considered equally owned by both spouses. This
fact can come into play in probate proceedings, and spouses can use these laws to their
advantage to ensure that their surviving spouse automatically takes over ownership of certain
In Texas, some assets can also become non-probate assets if they are titled in a way that
allows them to legally pass to a surviving individual after the other owner’s death. A
knowledgeable estate planning lawyer can help ensure that your beneficiaries maintain
ownership over the designated assets with the least hassle possible. Examples of these titled
How Can a Trust Help You Avoid Probate for Your Estate?
Many people utilize a living trust to simplify the inheritance process for their beneficiaries and
avoid the lengthy probate process. A living trust is a legal arrangement you set up during your
lifetime. You then transfer assets into the trust and designate a trustee who manages the trust
and handles the distribution of assets upon your death. You may even choose to be the trustee
until your death to maintain control over your assets and name another trusted individual to take
over that role upon your passing or incapacitation.
Because the trust involves instructions for the distribution of the assets it contains, it does not
need to go through probate. While trust is a popular option for avoiding probate, it may not be
for everyone due to the cost of creating it and the tax implications. If you are considering a trust,
a skilled estate planning lawyer can help you determine if it is the right choice for you.
Why Hire a Texas Estate Planning Lawyer?
Estate law can be complex. Some people put off planning their estate because it makes them
uncomfortable. Others attempt to draft a will on their own or use deeply discounted online forms
options, with potentially disastrous results due to a lack of professional consulting and attention to
The proper execution of the documents. Any mistakes or omissions made in your will or other estate
planning documents can prove costly to your beneficiaries and may result in lengthy court
battles and a waste of financial resources paid to attorneys. Worst, when estate planning is done
wrong, or at the wrong time, the potential for family strife and the toll on the emotional well-being
of loved ones is incomparable to the few dollars saved on a DIY project that impacts your entire
Utilizing non-probate assets is one way to ensure an easy transition of funds and property to
your loved ones. However, this is just a single element of an effective estate plan. An
experienced Texas probate lawyer can ensure you have a solid plan for your assets that
protects your legacy and your family. Call today for a free consultation.