Welcome, fellow adventurers, to a journey through the fascinating realm of Texas probate laws!
Picture this: You’re sitting on a porch, sipping sweet tea, and contemplating the mysteries of life.
Suddenly, it hits you—what will happen to your assets when you embark on your next great
adventure beyond this mortal coil? Fear not, for we are here to demystify the perplexing realm of
probate and guide you toward the path of peace of mind.
Short Answer:
This whimsical yet informative blog post will explore the ins and outs of Texas probate laws.
We’ve got you covered from the different types of assets that may or may not undergo probate to
the implications of joint ownership, trusts, estate tax considerations, and even the wild world of
digital assets. So, buckle up and get ready to uncover the secrets of probate laws in the Lone Star
State.
Reasons to Keep Reading:
- Embark on an Adventure: We’ll take you on a journey through the enchanting world of
Texas probate laws, using relatable themes, anecdotes, and a sprinkle of wit to keep you
engaged from start to finish. - Decode the Probate Puzzle: Discover the different types of assets that may or may not
require probate, unravel the implications of joint ownership on the process, and dive into
the captivating realm of trusts, estate taxes, and digital assets. - Navigate the Complexities: Whether you’re a Texan with property in multiple states, a
business owner seeking succession planning insights, or a member of a blended family
longing for equitable asset distribution, we’ll provide you with the tools and knowledge to
confidently sail through the probate process. - Protect Your Legacy: We’ll explore how you can safeguard your hard-earned assets,
ensure the smooth transfer of digital legacies, and secure your loved ones’ future through
proper estate planning strategies.
So, grab your Stetson, dust off your boots, and join us on this thrilling expedition through the
captivating world of Texas probate laws. It’s time to embark on a quest for peace of mind and
leave no stone unturned in your journey to protect what matters most. Let’s dive in and unravel
the mysteries together!
Unraveling the Mysteries of Texas Probate Laws: Your Guide to Peace of Mind
Like any legal case, a probate case can’t seem like an incredible frustration to you and your
family. Of course, having to probate a will or your estate means that you will have passed away.
The irony to this situation is that the money in your estate will be used to pay for a court case
you stand to benefit nothing from. However, your family can potentially lose or gain a great deal
if you do not handle this situation well. The good thing for you and your family is that you can
follow a roadmap towards solidifying your estate and preparing your family for life after you
pass on- whenever that may be.
However, as with any legal matter, there may be hurdles that you have to jump over to
accomplish these positive things for your family. For one, there are costs associated with
probating your estate. This should not come as a surprise to you. Additionally, there are costs
associated with hiring an attorney to represent your estate in this case. Depending on your
situation circumstances, you can spend a great deal of time and money on a probate case.
Fortunately, you can avoid the protracted costs of a probate case by planning how to approach
matters related to your estate. This is especially important if you become unable to attend to your
affairs. As you age, the likelihood increases that you may require at-home care or even skilled
nursing care. A lot of this depends upon your physical and mental health; obviously, I don’t
know how you specifically fare in those areas. However, the need for things long-term care
insurance, retirement care, and other benefits increase as we age, no matter what our physical or
mental condition is. This is a reality of aging that some of us tend to overlook for several reasons
purposefully.
I think this is an important discussion for us to engage in as we pursue an answer to what assets
must go through the probate process in Texas. Your property is a central component of any
discussion on estate planning. As a result, you should be as knowledgeable as possible when it
comes to the understanding that certain pieces of property more than likely will have to go
through probate. In contrast, certain types of property will bypass the probate process.
Once your will is filed in the county probate court, it becomes a public document. Legal notices
notifying the public that your will has been admitted to probate will be published in a newspaper,
magazine or any other widely read media in your area. Once this is done, the administrator for
your estate or your executor will likely have to begin to inventory and appraise the property
included in your state. This would include your financial accounts like retirement and savings
accounts. Even the value of your home and other property will be included in this inventory and
appraisal.
Additionally, we have not even begun to discuss the effect tax orders have on your estate
planning. If you owed debts, then those debts would have to be accounted for in the inventory as
well because creditors have a right to be reimbursed as much as allowed under the confines of
your particular estate. Meanwhile, all of this information becomes public knowledge and can be
looked up by anyone with a computer or a desire to attend courtroom hearings; if your family is
like most and would prefer to keep these sorts of aspects of your lives private, then you should
be aware of what has two and what does not have to go through the probate process.
A word on children
If you have any children or grandchildren under the age of 18 and you will currently leave
property directly to them, you have potentially put yourself in a very tricky situation. Not only
does leaving money directly to children potentially place them in a world of harm, given that
children are not well known for their temperance or prudence when it comes to spending money,
but it is also important to note that the probate court may have a say-so regarding how that
money gets to your loved ones. You may want to consider creating a testamentary trust inside of
your will.
A testamentary trust allows for a property you want to go to minor children to be held in trust
until your children or grandchildren reach a certain age. Many people choose that age to be 18,
21, or even 25. Meanwhile, you can specifically allow children under 18 to receive money for
milestone events, such as a portion of the money to pay for college or a car when they turn 16
years old. You can either appoint a trustee to oversee the trust yourself or name someone at a
financial institution or another person to be a trustee.
In addition, the claims of any of their creditors may be attached to two assets of theirs or their
spouses. This puts you in a position where your property may go to benefit the accreditor before
it even shows up on the doorstep of your children or grandchildren. Not putting property into a
trust for minor children or grandchildren requires you to keep up with the goings-on of your
children and grandchildren to a great extent. You would need to be sure of their willingness to
spend money wisely, their status with creditors, and their ability to maintain these positions
without putting this money into a trust. That is asking too much and involves you taking a major
risk with money and property that you worked hard to accumulate over the years.
Finally, children can become disabled or otherwise unable to care for themselves or their affairs.
Suppose you pass away with a will in place that gives a great deal of property to a young child.
In that case, there is no telling what may happen to that property if a conservatorship proceeding
is successful in naming a conservator to handle their financial affairs even after they turn 18.
Again, these are risks for you and your money that are not necessarily wise to take considering
all of the circumstances of your life and theirs.
What happens if you recently moved to Texas?
One of the interesting aspects of this pandemic has been demographic changes and migration
patterns of people within the United States. One such pattern has been people moving from other
states to the state of Texas. Anecdotally, I have met people from other states who have recently
moved to Texas more than once on my street alone. With that in mind, you may be reading this
blog post as someone who had recently drafted a will while living in another state. The question
you need to ask yourself is how effective a will from another state within the jurisdiction of
Texas is?
The answer is not very effective at all. If you created a will in Louisiana and died in Texas, then
it is likely that the laws of Texas will be used to dictate the terms of your will. This can be
worrisome for many people because you likely created your will, at least in part, based on the
laws of your home state. If your home state is Louisiana, you should know that the probate and
estate laws in Louisiana are significantly different from Texas’s. As such, you and your family
may be in for a rude awakening based on how the laws of Texas treat your will or treat your
estate if you pass away without a will.
You may be thinking at this point: that having to create a brand new will and throw my old will
in the trash can take time and money. While both of these assertions and beliefs are true to an
extent, it is also expensive for you to pass away with a will in place that does not reflect your
wishes at the time of your passing. At the same time, your family’s circumstances may have
stayed the same between the time you moved to Texas and when you lived in your old state; a
significant circumstance did not remain the same. Namely, the place that will be probating your
will changed along with the laws of the state.
A probate court will likely have to perform some degree of research into your home state’s laws
even if the will can be judged based on the laws of your home state rather than Texas. That’s not
to mention any additional paperwork that must be filed or completed to probate them willfully.
Additionally, the paperwork associated with your will from your home state may not comply
with Texas law and could need to be updated. Bear in mind that if you created a will online, you
could not even be sure that the laws of the correct state are being followed.
Owning land in another state (not Texas)
Consider the situation if you were to own property in another state besides Texas. Again, let’s
suppose that you own some swampland out near New Orleans, where you grew up. That land has
been in your family since you were a little kid and is extremely important to you for financial
and sentimental reasons. You would like to make sure that that land stays in your family in the
way you desire. Simply following the intestacy laws in Texas or Louisiana, for that matter,
would not suit you all that well. What happens if you move to Texas without updating your will?
For starters, it is possible or even likely that your estate would have to be probated in multiple
states. This means you may be looking at the time, cost, and confusion of probating your state in
Texas as well as Louisiana. This problem becomes compounded if both you and your spouse
died at the same time. Therefore, two estates may have to be probated in Texas, and two may
have to be probated in Louisiana. No matter how you draw it up, this is a conundrum and can
lead to confusion and, at the very least, delays and increased costs for your family to have to
bear. Meanwhile, those costs are borne out of your state, so while your family doesn’t have to
pay for every court cost and fee associated with the probate process, your state becomes less and
less valuable as time goes on.
Again, wills are crucial to our society in that they provide us with a way to more or less
guarantee that our wishes will be followed at death even after we are gone. Rather than leaving it
up to the state of Texas to determine how property is divided at the time of our death, we see that
our families understand our wishes through the drafting and execution of a will. Despite the
difficulties associated with drafting a will and executing it on wheels, I think doing so is much
preferable to leaving it up to Texas or any other state for that matter.
If you pass away without a will, you guarantee that probate will have to be attended to
The first step of a probate court is to determine whether or not a will exists for you after you
have passed away. Even if you took the time to have a wheel created, you must have followed
through with the requirements of a valid will in Texas, such as having two witnesses witness
your signing of the document and having a notary present for all of the process. Without these
steps having been followed, it is possible that what you thought to have been a validly
constructed will is determined to be invalid or challenged by a family member of yours who
believes that the will is invalid.
If you can structure will towards the end of your life, there will also be questions about whether
or not you are mentally competent to create and execute the document. This offers a unique
situation for those who have Alzheimer’s, dementia, or any other mental disease that eats away at
your cognition over time. It may make sense; therefore, 2 encourage loved ones or even yourself
to have a wheel drafted sooner rather than later before the onset of the worst symptoms of these
types of debilitating mental conditions.
As alluded to a moment ago, if a relative of yours wants to contest the validity of your will, that
is perfectly acceptable. They would file a lawsuit in the same probate court where your will is
being probated. In some circumstances, we see people who have no right to do so attempting to
contest a perfectly valid will. These may be extended relatives who are simply greedy and want a
piece of your pie, so to speak. Other times, we see valid contests of wills from family members
closer to you who have real concerns over the validity of the will or of your mental state when
the document is drafted and executed.
Speaking of execution, if you have a will, you can designate and name a person in that document
whom you would like to manage your state at the time of your passing. If you pass away without
a will, on the other hand, you lose the right to do so, and a court would name someone as the
administrator of your estate or you to die intestate or without a will. Again, having a will allows
you to exact much more autonomy and control over your circumstances at death versus not
having a will.
In closing, not only is the drafting of a will potentially dangerous through an online form, but
you would not be able to receive any of the sort of advice I just provided you with regarding
drafting a will. A website cannot devote the time and energy to working with you on the finer
points of estate planning or determining your specific needs. While going through a website is
almost undoubtedly less expensive than hiring an attorney, you are not receiving any focused
one-on-one treatment. As I am fond of telling people regarding estate planning matters, hiring a
probate or estate planning attorney is a short term investment into your long term future period
since the state planning impacts your family well beyond leaders which you are on earth you
could say that it is a short term investment into an extremely long term future both for yourself
and your family.
Understanding Texas Probate Laws: A Comprehensive Guide
When it comes to estate planning and the distribution of assets after one’s passing, navigating the
complexities of probate laws can be daunting. In the state of Texas, specific regulations govern
how assets are handled during the probate process. This article aims to provide you with a
comprehensive understanding of Texas probate laws, shedding light on important aspects that are
often overlooked or misunderstood.
Different Types of Assets
Probate laws in Texas distinguish between various types of assets, each with its own implications
for the probate process. While some assets may need to go through probate, others can bypass
the process altogether. Let’s explore some of the common asset categories and how they are
treated:
Asset Type Probate Requirement
Real Estate
Usually requires probate unless alternative arrangements are in place, such as a trust
or joint ownership with right of survivorship.
Bank
Accounts
May require probate if no designated beneficiaries or joint ownership arrangements
exist.
Investment
Accounts
Generally subject to probate unless joint ownership or beneficiary designations are
in place.
Vehicles
Often require probate, but joint ownership or transfer-on-death provisions can
bypass the process.
Personal
Belongings
Some items may require probate, particularly if they hold significant financial or
sentimental value. However, smaller personal belongings may not typically undergo
the probate process.
- Real Estate: Properties such as homes, land, and commercial buildings often require
probate unless alternative arrangements, like a trust, have been established. - Bank Accounts: Bank accounts, including savings and retirement accounts, may need to
go through probate unless designated beneficiaries or joint ownership arrangements are in
place. - Investment Accounts: Stocks, bonds, and other investment accounts typically require
probate unless they are held jointly or have a designated beneficiary. - Vehicles: Motor vehicles, such as cars, boats, and motorcycles, can be subject to probate
unless there are specific arrangements, such as joint ownership or transfer-on-death
provisions. - Personal Belongings: Personal items, such as jewelry, artwork, furniture, and other
possessions, may or may not need to go through probate, depending on their value and
specific circumstances.
It’s important to clearly understand which assets fall under probate and which can be handled
outside of the process. Consulting with a knowledgeable attorney can help ensure that your
assets are properly categorized and accounted for.
Implications of Jointly Owned Property
One aspect often overlooked in the probate process is jointly owned property. When a person
owns property jointly with another individual, such as a spouse or business partner, the
ownership structure can significantly impact how the property is handled upon the death of one
owner. In Texas, joint tenancy with right of survivorship and community property with right of
survivorship are common arrangements that allow the property to pass directly to the surviving
owner without going through probate. Understanding these ownership structures and their
implications is crucial in estate planning.
The Role of Trusts in Estate Planning
While the article briefly mentions testamentary trusts for minor children, it’s important to delve
deeper into the broader topic of trusts in estate planning. Trusts can play a significant role in
managing assets, avoiding probate, minimizing estate taxes, and protecting assets for future
generations. Some common types of trusts include:
- Revocable Living Trust: This trust allows you to transfer assets during your lifetime and
avoid probate upon your death. You retain control of the assets while you’re alive and can
make changes or revoke the trust as needed. - Irrevocable Trust: By creating an irrevocable trust, you permanently transfer assets out
of your estate, potentially reducing estate taxes and protecting those assets from creditors. - Special Needs Trust: This type of trust is designed to provide for individuals with
special needs, ensuring that they receive financial support without jeopardizing their
eligibility for government benefits. - Charitable Trust: Charitable trusts allow you to support charitable organizations and
receive tax benefits by designating a portion of your assets for charitable purposes.
Understanding the different types of trusts and their applications is crucial in developing a
comprehensive estate plan that aligns with your goals and protects your assets.
Estate Tax Considerations in Texas
While the article mentions the potential effect of tax orders on estate planning, it’s important to
explore estate tax considerations specific to Texas. Estate taxes are levied on the transfer of
assets upon a person’s death, and each state has its own rules and thresholds. There is currently
no state-level estate tax in Texas, but federal estate taxes may still apply to larger estates.
Understanding the estate tax thresholds, exemptions, and planning strategies can help minimize
the tax burden on your estate and ensure that your loved ones receive the maximum benefit from
your assets.
Handling Digital Assets and Online Accounts
In today’s digital age, it’s crucial to consider the treatment of digital assets and online accounts in
the probate process. Digital assets can include financial accounts, social media profiles, email
accounts, cryptocurrencies, and other digital properties. To ensure a smooth transition and proper
management of these assets, it’s essential to:
- Create an Inventory: Compile a comprehensive list of your digital assets, including
login credentials and instructions for their management or disposition. - Appoint a Digital Executor: Designate someone you trust to handle your digital assets
and online accounts according to your wishes. - Consider Legal Tools: Consult with an attorney to determine the best legal tools, such as
a digital estate plan or a trust, to govern the management and distribution of your digital
assets.
By proactively addressing your digital assets and including them in your estate plan, you can
ensure that your digital legacy is preserved and managed appropriately.
Business Succession Planning
For individuals who own businesses or have a stake in a business, planning for business
succession is of paramount importance. The article doesn’t discuss the specific considerations
and strategies involved in business succession planning, but it’s an essential aspect of estate
planning. Some key considerations include: - Identify Successors: Determine who will take over the business and outline a clear plan
for their involvement and responsibilities. - Develop a Succession Timeline: Establish a timeline for the transition to ensure a
smooth transfer of ownership and management. - Consider Tax Implications: Evaluate the tax implications of the succession plan and
explore strategies to minimize taxes and maximize the value of the business. - Document the Plan: Create a comprehensive succession plan that outlines the process,
responsibilities, and contingencies, and ensure that all necessary legal documents are in
place.
By addressing business succession in your estate plan, you can protect the continuity and value
of your business while providing clarity and stability for your family and employees.
Medicaid and Long-Term Care Planning
While the article briefly mentions the need for long-term care insurance and retirement planning,
it doesn’t comprehensively discuss Medicaid and long-term care planning strategies. Planning for
potential long-term care needs is a crucial aspect of estate planning, as it can help protect your
assets and ensure access to quality care. Consider the following: - Medicaid Eligibility: Understand the eligibility requirements for Medicaid, as it can help
cover the costs of long-term care services. Plan ahead to meet the criteria while
protecting your assets through proper estate planning strategies. - Long-Term Care Insurance: Explore long-term care insurance options to mitigate the
financial burden of future care needs. - Asset Protection: Engage in asset protection strategies to shield your assets from being
depleted by long-term care costs, such as utilizing trusts or other legal instruments.
By integrating Medicaid and long-term care planning into your estate plan, you can secure your
financial well-being and provide peace of mind for yourself and your loved ones.
Handling Out-of-State Assets
The article briefly mentions owning property in another state but fails to provide detailed
information on how out-of-state assets are handled in probate. Understanding the potential
challenges associated with out-of-state assets is essential, especially for individuals with assets in
multiple jurisdictions. Some considerations include: - Multiple Probate Processes: When you own property in multiple states, it may require
going through probate in each respective state. This can lead to increased costs, delays,
and potential complications. - State-specific Laws: Each state has its own probate laws and regulations, which may
differ from Texas probate laws. Understanding the intricacies of each jurisdiction is
crucial to ensure proper asset distribution and compliance. - Seek Legal Guidance: Consult with an attorney experienced in cross-border probate to
navigate the complexities associated with out-of-state assets and streamline the probate
process.
By proactively addressing the challenges of out-of-state assets, you can simplify the probate
process and ensure that your assets are distributed according to your wishes.
The Importance of Digital Estate Planning
The article doesn’t touch upon the significance of digital estate planning, which involves
managing and distributing digital assets, online accounts, and digital legacies. In today’s digital
world, including instructions for handling digital assets in your estate plan is essential. Consider
the following steps: - Identify Digital Assets: Compile a comprehensive list of your digital assets, including
online accounts, intellectual property, and digital files. - Appoint a Digital Executor: Designate someone to manage and distribute your digital
assets, ensuring they have the necessary access and instructions. - Include Digital Asset Provisions: Work with an attorney to incorporate specific
provisions in your estate plan to address the management and transfer of digital assets.
By accounting for your digital presence in your estate plan, you can protect your online legacy,
preserve important data, and prevent potential complications for your loved ones.
Estate Planning for Blended Families
Blended families, where individuals have children from previous relationships, require special
consideration in estate planning. The article doesn’t address the unique challenges and strategies
involved in ensuring fair and equitable distribution of assets in such family structures. Some key
considerations include:
Open Communication: Foster open and honest communication with all family members
to ensure their understanding and acceptance of your estate plan.
Pre- and Post-Nuptial Agreements: Consider pre- or post-nuptial agreements to outline
how assets should be distributed and protect the interests of all family members.
Trusts and Specific Bequests: Utilize or specify bequests to ensure that assets are
distributed according to your wishes and provide for all members of the blended family.
Professional Guidance: Consult with an experienced estate planning attorney who can
help navigate the complex dynamics of a blended family and create a plan that addresses
individual needs and concerns.
By considering these factors, you can develop an estate plan that promotes harmony within your
blended family and protects the financial well-being of all involved.
Conclusion
Navigating the intricacies of Texas probate laws is essential for effective estate planning.
Understanding the different types of assets, implications of joint ownership, the role of trusts,
estate tax considerations, digital asset management, business succession planning, Medicaid and
long-term care, out-of-state assets, digital estate planning, and considerations for blended
families are all crucial components to consider when developing your estate plan. Seek the
guidance of an experienced estate planning attorney to ensure that your assets are protected, your
wishes are fulfilled, and your loved ones are provided for according to your intentions. With
proper planning, you can achieve peace of mind and secure your legacy for future generations.
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
