What in a Will Goes to Probate in Texas, and What Does Not? 

We’ve all been there.  You’re going through a loved one’s belongings after they’re gone, maybe finding old photos or treasured trinkets.  Then you come across their will, and suddenly things get a bit more serious.  It can feel overwhelming trying to figure out what happens next, especially with legal terms like “probate” being thrown around.  Don’t worry, we’ve got you covered. In Texas, probate court handles the distribution of a person’s assets after they pass away, but it doesn’t include everything they owned.

This blog post breaks down exactly what goes through probate in Texas, in plain and simple language. We’ll explore the different types of assets, what documents you’ll need, and the general steps involved in the process. Understanding how probate works can give you peace of mind and help you navigate this challenging time with more confidence. 

What Assets Go Through Probate in Texas?

The assets included in your will typically have to go through the probate process. This includes any personal property, real estate, and other assets that are solely in your name at the time of death. Here’s a more specific rundown:

• Assets owned solely in the decedent’s name: If the deceased person owned property or accounts solely in their name, these assets will likely go through probate.
• Assets owned as tenants in common: If the deceased person owned property with others as tenants in common, their share of the property will go through probate.
• Personal property: This includes items such as furniture, jewelry, and vehicles.

Assets owned solely in the decedent’s name

Any assets that you own solely in your name at the time of your death are generally subject to probate. Probate is the legal process through which a deceased person’s will is validated by a probate court. During this process, the court oversees the distribution of assets to the beneficiaries as stipulated in the will, and ensures that any debts and taxes owed by the estate are paid off.

Generally, any asset owned solely in the decedent’s name at the time of their death will go through probate. This means the court will oversee the distribution of these assets according to the terms of the decedent’s will, or if there is no will, according to Texas intestacy laws. Here are some common examples:

1. Real Estate: If the decedent owned a house, land, or other real property solely in their name, it will likely be subject to probate.
2. Bank Accounts: Checking accounts, savings accounts, and certificates of deposit held solely in the decedent’s name will typically go through probate.
3. Vehicles: Cars, trucks, motorcycles, and other vehicles solely owned by the decedent are generally probate assets.
4. Personal Property: This broad category includes items such as furniture, jewelry, artwork, collectibles, and other belongings owned solely by the decedent.
5. Investments: Stocks, bonds, mutual funds, and other investments held in the decedent’s name alone will usually be subject to probate.
6. Business Interests: If the decedent owned a business or had an interest in a business solely in their name, this will typically go through probate.

Why These Decedent-Owned Assets Go Through Probate

The primary reason these assets go through probate is to ensure they are distributed according to the decedent’s wishes, or if there is no will, according to Texas law. The probate court provides oversight and ensures that creditors are paid and beneficiaries receive their rightful inheritance.

Understanding Tenancy in Common

Tenancy in common is a form of ownership where two or more individuals own a property together, each with an undivided interest. This means each owner has a right to possess and use the entire property, and they can own unequal shares. Crucially, with tenancy in common, each owner’s interest is inheritable. This differs from joint tenancy, where the surviving owner automatically inherits the deceased owner’s share.

Probate and Tenancy in Common

Here’s the key point: when you own property as a tenant in common and pass away, your share of that property will go through probate. This means:

• Your Will Controls: The distribution of your ownership interest in the property is governed by the terms of your will.
• Intestacy if No Will: If you die without a will, Texas intestacy laws determine who inherits your share.
• Only Your Share is Affected: Probate only deals with your ownership interest in the property. The other tenants in common retain their ownership.

Examples

• You and your sibling inherit your childhood home as tenants in common, each owning a 50% share. When you pass away, your 50% share goes through probate and is distributed according to your will. Your sibling still owns their 50%.
• You and a business partner own commercial real estate as tenants in common. Your will specifies that your share of the property goes to your spouse. Upon your death, your spouse inherits your interest in the property through probate.

Personal Property and Probate

Personal property includes items like furniture, jewelry, art, and other movable assets that you own. If these items are not explicitly placed in a trust or designated to bypass probate through other means, they will generally be subject to the probate process upon your passing.

This aspect of estate planning is crucial because personal property can hold both financial and sentimental value for your beneficiaries. The probate process helps ensure that such personal property is distributed according to the wishes laid out in your will. However, it’s important to remember that probate can sometimes be a lengthy and public process, potentially leading to disputes among beneficiaries if not clearly directed in the will.

To avoid complications and ensure a smooth transition of your personal belongings to your heirs, you might consider several strategies:

1. Specific Bequests: In your will, you can make specific bequests, which means you designate certain personal properties to go to specific individuals. This can help reduce ambiguity and streamline the probate process.
2. Creating a Trust: Placing your personal property in a trust can exempt these assets from probate. Trusts can be particularly useful for high-value items or collections that you wish to preserve and pass on without the public scrutiny or delays associated with probate.
3. Gifts During Lifetime: Another strategy to consider is gifting items during your lifetime. This not only allows you to see the recipient enjoy the item, but it also removes the asset from your estate, thus reducing the potential for probate issues.
4. Payable-on-Death Accounts: While typically used for financial accounts, you can also set up certain investment accounts to handle tangible assets that might otherwise go through probate. These are designated to transfer directly to a named beneficiary upon your death.

Understanding how to manage personal property in your estate planning is key to ensuring that your assets are distributed smoothly and according to your wishes. It’s advisable to consult with an estate planning attorney who can provide guidance specific to your situation and help you navigate the complexities of Texas probate law. This way, you can secure peace of mind knowing that your personal effects will be taken care of as you intend.

What Assets DON’T Go Through Probate?

Several types of assets are designed to bypass the probate process entirely. These assets are typically designed with mechanisms that allow them to be transferred directly to a beneficiary upon your death. Here’s a closer look at some of these asset types:

Joint Ownership with Right of Survivorship

Assets owned in joint tenancy with the right of survivorship automatically pass to the surviving owner(s) upon your death. This includes real estate, vehicles, and bank accounts held jointly. The right of survivorship supersedes what might be written in your will regarding these jointly held assets.

Payable-on-Death (POD) and Transfer-on-Death (TOD) Accounts

Financial accounts that have a designated beneficiary as POD or TOD can bypass probate. These designations allow the assets in these accounts—whether they’re bank accounts, brokerage accounts, or retirement accounts—to transfer directly to the named beneficiary without having to go through the probate process.

Life Insurance Policies

Life insurance proceeds are typically paid directly to the beneficiaries you’ve named in the policy, independent of the probate process. This means that the money from your life insurance can provide immediate financial support to your beneficiaries without any delay from probate proceedings.

Retirement Accounts

Like life insurance policies, retirement accounts such as IRAs and 401(k)s usually have designated beneficiaries and are not subject to probate. The funds in these accounts pass directly to the beneficiaries, according to the designations you have made.

Living Trusts

Any assets held in a living trust are not subject to probate. You can place a wide range of assets in a trust, including real estate, bank accounts, and personal property. Upon your death, these assets can be transferred to the trust’s beneficiaries according to the terms you’ve set up in the trust agreement, bypassing the probate process completely.

Certain Small Estates

In Texas, if the total value of the estate is below a certain threshold and consists primarily of personal property, it may qualify for an expedited process that simplifies or eliminates the need for formal probate.

Next Steps to Streamline the Texas Probate Process

Understanding what does and doesn’t go through probate in Texas is a cornerstone of effective estate planning. By strategically utilizing tools like beneficiary designations, joint ownership, and living trusts, you can streamline the process, potentially reduce costs and delays, and ensure your wishes are carried out smoothly. Remember, this information is for general knowledge only, and seeking personalized advice from a qualified estate planning attorney is always the best way to protect your legacy and your loved ones.

Other Related Articles:

1. What questions should you ask a probate lawyer?
2. Which Property Should Be Included In Texas Probate or Intestate
3. How do you settle an estate without probate?
4. What assets do not go through probate?
5. Estate Planning and Probate: Maximizing the Benefits of a Will
6. 5 Common Misconceptions About Texas Probate and Estate Planning
7. Executor Duties in Texas: A Comprehensive Guide
8. The Basics of Texas Probate: A Guide for Executors and Heirs
9. Unlocking the Mystery: How Long Does an Executor Have to Settle an Estate?
10. Does an Executor Have To Show Accounting to Beneficiaries?

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