Published 11/20/2020 by Shane Kersh

Introduction to Probate

Do not fear probate! Texas has a simple, streamlined process (compared with other states).

Why do people say they want to avoid probate? Do people need the best probate attorney possible?  Of course!!

• Time consuming
• Slow
• Costly
• Public

Purpose of the probate process:

1. The ultimate goal is to get the assets out of decedent's name and into the name of the decedent's beneficiaries or heirs.
2. The forthcoming options are mechanisms to accomplish that transition.

People die, leaving behind many different types of things:

1. Houses
2. Cars
3. Bank Accounts
4. Retirement Accounts
5. Life Insurance
6. Household Goods
7. Clothing & Personal Items
8. Jewelry
9. Antiques and collectibles
10. Art
11. Stocks & Bonds

What are NON-probate assets?

1. Trust property
2. Jointly held accounts
3. Accounts with beneficiaries (P.O.D. accounts)
4. Life Insurance with a beneficiary named
5. Real Property Deeded upon death
6. NOTE: Texas real estate is not generally right of survivorship

What are considered probate assets?

1. Assets titled solely in Decedent's name…could include:
   1. Real property
   2. Cars
   3. Bank Accounts and Retirement Accounts that do not have a listed beneficiary or the beneficiary is the Estate
   4. Clothing & Personal Items
   5. Jewelry
   6. Antiques and collectibles
   7. Art
   8. Stocks & Bonds
   9. Life Insurance if no beneficiary listed or beneficiary is deceased

Do I have to probate a will? There are differences of opinion on this:

• If a will exists, but decedent's "estate" only contained non-probate assets (for ex., house was in a trust & bank accounts had beneficiaries), there is not a necessity to probate the will; however…
• Sec. 252.201 of the Texas Estates Code says. "WILL DELIVERY. On receiving notice of a testator's death, the person who has custody of the testator's will shall deliver the will to the clerk of the court that has jurisdiction of the testator's estate."
• 4-year statute of limitations for probating will
• Can still probate a will, but cannot have an administration
• Muniment of title is an option after 4 years

Published 11/20/2020 by Shane Kersh