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San Antonio Express-News
January 11, 2005

Must all Wills be Probated?

copyright 2005, Paul Premack

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Dear Mr. Premack: What exactly is "probate" and must all Wills go through it? We have simple Wills prepared by an attorney, spouse to surviving spouse then to our three children, share and share alike. Thanks for your information. -- C. J.

Probate is the legal process of enforcing the terms of a person’s Will, seeing that all the unfinished debts and taxes are paid, and that the remaining assets are distributed. Texas law provides several different legal procedures which can all be labeled probate. The appropriate process must be selected by your survivors, in consultation with their attorney, depending on the circumstances that exist after your death.

The most complex procedure is called "dependent administration," and is used when a person dies without a Will, or when the Will is faulty, or when the person desired to have court supervision of the administration. It is something that most people plan to avoid, since it adds time and cost to the process. When there is no Will at all, the law may add another process called "determination of heirship" to make a legally binding decision on who inherits the estate.

Probably the most common process is "independent probate," in which the court grants authority to handle the estate without any court supervision to an executor named in the Will. In this regard, Texas law is very liberal compared to other states. Our independent probate is streamlined and inexpensive, and does not deserve the negative stigma that probate too often carries.

Texas law even allows several processes that are easier than independent probate. For instance, "muniment of title" does not require an executor. It can only be used when there are no debts to be paid (other than a home mortgage.) It results in a court order validating the Will and transferring legal ownership of the assets to the heirs named in the Will. When there is no Will and the estate is valued at less than $50,000 (not including the homestead) then a "small estate affidavit" can be used.

Must all Wills go through probate in one form or another? The answer is "no" because circumstances vary from estate-to-estate. Each estate contains different assets. Some are set up in a "non-testamentary" fashion and some are not. Some people leave large debts, ongoing businesses, and other obligations while others don’t.

When your goal is to create a plan that avoids probate, a trust is often a useful tool. The correct trust agreement declares how the assets are to be managed, who the trustee will be, and identifies the beneficiaries. All the tasks that probate would fulfill are instead carried out by the trustee, with no court intervention and often with minimal attorney involvement.

Some people desire a solution that is less complex and less expensive that a trust. Survivorship rights on bank accounts, stocks, home and other assets can avoid probate. Married couples can sign and record a "community property survivorship agreement" with the county clerk. These arrangements are fast, inexpensive and when properly used can keep an estate out of probate court.

Avoiding probate is not always a good choice. There are times when your goals can best be achieved in a Will that is settled via probate, or when using one of Texas’s legally allowed streamlined probate processes may be the least expensive choice. Be sure to compare the costs of preplanning (like a trust) against the possible costs of probate so that you make a wise selection.

Prior Column: Who Makes Funeral Decisions?
Next Column: Co-Executors -&- Miller Trusts 
Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so  this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.

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