| What happens
to my property when I die?
What is probate?
How bad is
probate in Texas?
What is an
Is an independent
executor appropriate in all circumstances?
Can I avoid
If I cannot avoid
probate are there any alternatives?
When we die, our property passes by one or more of
three ways: Intestacy, Wills and Third Party Arrangements. Intestacy
means we died without a will and the laws of the State of Texas will
control. If we have a will, once probated, our probate property passes
according to that will.
Most of us have at least one piece of non-probate
property. That is property that does not pass under our will and is not
subject to probate. Today this is most commonly associated with living
or loving trusts. Traditionally, it was life insurance. Life insurance
is a non-probate asset because it passes according to the beneficiary
designation made with the life insurance company, not pursuant to the
will. Other examples are: IRAs, retirement benefits, Keoghs, annuities
and multi-party bank accounts (joint accounts with right of
survivorship, trust accounts and PODs).
If a person dies without a will they have died
intestate. If you die intestate, Sections 38 and 45 of the Texas
Probate Code control the disposition of your probate estate.
Community property is the property you and your spouse
accumulate during marriage, except for anything that is given to you or
Your community property passes to your surviving
spouse, unless you have children that are not the children of your
spouse. If you and your spouse have 2 children and no others, your
community half passes to your spouse. If you and your spouse have 2
children but you have a child by a prior marriage, then your community
half goes to your 3 children and not your spouse.
Remember you can change this with a will.
Anything you bring into the marriage, or you inherit
or is given to you during the marriage, is separate property.
The rules concerning the succession of your separate
property is more complicated. If you have a spouse and descendants, the
spouse gets 1/3 of the personal property and a life estate 1/3 of the
real property. If you have no spouse your descendants get it all. There
are further rules if you have no descendants or spouse that are not
worth pursuing here, but are spelled out in Section 38.
If you die intestate you probably have not avoided
probate. Generally, it will be necessary to establish your heirs by a
court action referred to as an application to declare heirship.
If you have a valid will you avoid this process. An administrator may
also be necessary.
Probate in Texas is not a terrible ordeal if you have
an up-to-date will, there is no dispute among the family and your
beneficiaries, you do not have creditor problems and you do not have
tax problems. In fact, if you meet all of those criteria and all of
your property passes to your surviving spouse, the costs may be as low
as $1,000 to $1,500.
The public fears and loathes probate to mythical
proportions. When asked to explain what probate is, an otherwise
knowledgeable businessman said, "It's a dragon: it is ugly, breathes
fire and thinks of you only as its next meal." While this description
is not accurate or fair, most people would agree wholeheartedly.
Unfortunately, there are businesses that prey on this
ignorance and fear. People all over the United States are selling plans
to avoid probate. Quite often these salespersons do not know any more
about the realities of probate than the general public.
Texas has a very streamlined and efficient probate
system. For the simplest of estates, the total probate cost can be
$1,000 to $1,500. Years ago Texas did not have such a good system. It
was cumbersome and inefficient. In addition the courts abused their
authority to supervise everything concerning the probate proceeding.
Judges appointed their cronies to act as appraisers and administrators.
Further, attorneys charged a percentage of the estate as their fees
(today, no responsible attorney charges a percentage).
Texas' probate system was reformed in 1954.
Nevertheless, the legacy from that period continues to this day. The
fear of probate is validated by the problems and expense of probate in
Today a person can go through Texas probate without
any great fear or expense, if there has been property planning and they
have a knowledgeable attorney.
most instances, the goal is an independent executor serving without a
bond. This means that after the will is admitted to probate and an
inventory is filed, the executor is free of court supervision and
control. All of this results in substantial savings to the estate.
Sometimes an independent executor is not desired. If
the estate is insolvent or nearly so, it is generally prudent to have a
dependent administration. This protects the personal representative by
having all actions validated before they are taken. Occasionally, the
testator does not have anyone they trust completely. In those cases,
the beneficiaries might be better off to have the executor watched
closely by the court. The beneficiaries would also be protected by a
The more of the following questions you can answer
with yes, the less your probate procedure will cost
- Has the estate been planned?
- Is the will up-to-date?
- Is the will self-proving?
- Does it name an independent executor?
- Does it waive the requirement of bond?
- Is the fair market value of the estate less than
- Is there only one beneficiary of the will?
- Are all of the surviving children also the children of
the surviving spouse?
- Are the bequests to the family made in the predictable
and natural manner?
you eliminated or reduced all possible areas of controversy: family,
- Did the testator discuss and explain the estate plan
with the family?
- Can the debts be resolved without delay or
It is not always easy or simple but it is done every day. In Texas, it
is not necessary to save money. However, if at the time of your death,
all of your assets are in non-probate form, there is no need to probate
your will. The most common examples of non-probate assets are:
and especially living and loving trusts (revocable intervivos trusts)
compensation (retirement benefits, IRAs, Keoghs and pension plans)
Tenancy with right of survivorship
bank accounts (Joint Accounts with right of survivorship, trust
accounts and POD accounts)
property with right of survivorship
any asset is in probate form when you die, probate will probably be
necessary. For example, suppose you have a certificate of deposit that
is held in the name of the trust. Then assume you transfer it to
another bank but the new bank makes it out in your name rather than the
trust and you don't catch it. Then you die with the CD titled in your
name. Your beneficiaries cannot access those funds until your will is
There are alternative probate procedures to the
independent executor. They are appropriate in various circumstances:
- Independent administration
- Muniment of Title
- Dependent administration
- Dependent administration with will annexed
- Proceeding to Declare Heirship
- Administration of community property
- Community Survivor (without court authority)
- Temporary Administration
- Finding of no need for administration
- Affidavit of Heirship
- Establishing title through foreign wills