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What is Probate?

Posted August 1st, 2014 | by The Red Headed Lawyer

What is probate? Essentially, it is the process by which the court distributes your estate after your death. If you have a will, the court will distribute according to that. If you do not have a will, the court will appoint an administrator (a type of executor) and distribute according to the descent laws of Texas.

The process is made much simpler and cheaper if you have a will. Texas probate is one of the simplest in the country thanks to what is called the “independent administration” of estates. Using this process, your named executor can distribute your estate with very little court supervision. There are other probate options in Texas, but this is the most common. If you do not have a will, there are many more costs involved because the court oversees the process.

Does everyone need a will? No. If you do not own real estate or have stock certificates or some other type of asset with a title, you may not need a will. Pension plans, 401(k)’s, financial accounts, and insurance proceeds do not pass through probate except in limited circumstances. Bank accounts can be handled outside the probate process by using a POD (pay on death) signed at the bank or by making another person a signatory on the account.

If you do have real estate or another item with a title, you probably are better off with a will, although the will may not have to be probated. Especially with real estate, you want to ensure that a deed is done as part of the probate process so that any real estate is conveyed and filed in the deed records. There are some alternatives to probate, such as small estate affidavit and heirship affidavit, which may be appropriate under certain circumstances.

Can you use a handwritten (holographic) will in Texas? Holographic wills are legal in Texas. However, if a handwritten will is not prepared according to Texas law, it may not be accepted by the probate court. If it gets thrown out, the outcome may not be what you wish as far as how your estate is distributed.

In the end, you want to ensure that your loved ones are not left with the complicated and messy task of dealing with your estate while trying to follow through on your last wishes and while dealing with your death. To be on the safe side, it is better to have a valid, up-to-date will prepared by an attorney who is advising you. Can you copy a form from the internet? Sure you can. But the fact is, a basic, simple will prepared by an attorney who answers your questions and advises you on Texas probate law is not costly. It is cost effective. To do otherwise is to be penny wise and pound foolish.