Probate is the process of legally recognizing an individual’s death for estate administration purposes. When a person dies, they leave behind their estate. Before the surviving heirs and beneficiaries can receive their share of the estate, the court will have to authorize the distribution which is usually dependent on the will. Validating the legitimacy of a will and approving the executor of the will is an essential part of the probate process.
If the deceased person did not have a will, the court would still have to appoint an estate administrator to oversee the decedent’s affairs, including distributing the probate assets according to the Texas intestacy laws.
Do all assets go through probate?
Not necessarily. In fact, if the decedent used estate planning instruments to automatically transfer their assets to their surviving relatives, the court will consider these as nonprobate assets. Therefore, these will bypass the probate process. Nonprobate assets include:
- Life insurance policies
- Assets transferred to a trust
- Retirement accounts
- Payable on death (POD) accounts
- Transfer on death (TOD) accounts
The decedent should have assigned beneficiaries to facilitate a smooth and direct transfer. The decedent can also share ownership of their real property through joint tenancy with the right of survivorship. When one of the joint tenants dies, the property will, by design, go to the surviving tenants without having to go through probate. Any property not jointly titled or does not have a named beneficiary will be subject to the probate process.
Why might a will still be necessary?
A will can make the probate process much quicker, especially if you did not transfer your entire estate to nonprobate assets. You can have one in place while still setting up a trust. A will is a powerful document that serves as the backbone of your estate plan. It can allow you to dictate who will get the assets still subject to probate, including vehicles, pets, and your home. You can also use a will to appoint a guardian for minor children. The will outlines your final wishes and what you want to happen to your estate.