The first time you deal with the death of a family member and settling his or her estate, you will have to learn a lot of new information very quickly. One of the things you will have to get up to speed on right away is the Probate process. Fortunately, you and your family do not have to figure this out on your own. Our Probate attorneys are available to help with all aspects of settling a Texas estate, including navigating Probate court. Here, we provide basic information about the Probate process in Texas.
Which Assets Have to go Through Probate?
Any property or assets that are not transferred to a beneficiary by other means will have to go through Probate before the heir can take possession. The following kinds of assets will pass directly to the beneficiary without going through Probate:
- Assets held in Trust. If the decedent had a Living Trust, the assets held in the Trust will pass directly to the named beneficiaries without going through Probate. In fact, many people set up Living Trusts for the purpose of avoiding Probate.
- Joint tenancy. Property, such as the family home, that names someone other than the decedent on the title will automatically remain in possession of the survivor. This is true for property owned by a married couple, or for unmarried people who have “rights of survivorship.”
- Beneficiary designations. Life insurance policies, retirement accounts, and other assets that have a named beneficiary will pass directly to that person without going through Probate.
- Transfer-on-death accounts. Bank and brokerage accounts can also name beneficiaries and, if the proper paperwork had been filed before the death of the account holder, those accounts will pass directly to the beneficiaries.
- Lady Bird Deed. This is a unique type of deed used to transfer property, typically a home, to beneficiaries outside of the probate process—and in a way that escapes the Medicaid Estate Recovery Program.
As you can see, if the decedent had a comprehensive estate plan, it is likely that the bulk of his estate will be transferred without going through Probate. However, if there is no Living Trust, or if the assets left outside the Trust exceed Texas’s small estate threshold, Probate court will be in your future.
