Probate: FAQ

What happens when there is no will?

Most people think of probate as involving a will. If a person dies and leaves a will, then probate is required to implement the provisions of that will. However, a probate process also can happen if a person dies without a will and has property that needs to be distributed under the state intestacy law (the law of inheritance).

In Texas, when an adult dies without a will, an Attorney ad Litem will be appointed by the Judge to find any unknown heirs.  This will cause the estate unforeseen time and expense.  The attorney ad Litem will investigate the decedent’s family and marital history to determine if there are any unknown heirs.

Can’t We Just Skip Probate?

Some people don’t want to probate a will. There is no requirement that a will be probated; however, if the decedent owned property that is not arranged specifically to avoid probate there is no way for the beneficiaries to obtain legal ownership without going through probate. 

Probate Avoidance:  Some Options

It is possible to avoid probate entirely with careful planning. This is desirable for some people because doing so not only reduces legal fees, but it can mean avoiding the estate tax, which can take a significant amount of a very wealthy estate. Avoiding probate can also protect privacy, since some of the records may not be available to the public.

One of the most popular ways to avoid probate is through the use of a revocable living trust. Assets are placed in the trust, but they can used by the trust creator during his or her lifetime. Upon death, assets in the trust are passed to the trust beneficiaries just by operation of the trust document. No probate is necessary.

Another popular method to avoid probate is to have your accounts opened with beneficiaries named.

Life insurance policies pass property outside of probate. Whoever you name as beneficiary on your life insurance policy will receive the death benefit directly with no probate process and upon the presentation of the death certificate.

Some retirement accounts can pass outside of probate if a beneficiary is named.   The account owner names a beneficiary and that person then receives the balance of the account after the owner’s death upon presentation of the death certificate.  Payable on death accounts and accounts owned as joint tenants with rights of survivorship operate the same way.

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Probate | Trusts | Estate Planning | Wills