Losing a loved one is never easy. Managing their estate after they are gone can be stressful and time-consuming, especially when trying to cope with your grief. Probate can be one of the lengthiest parts of estate administration, so it is no wonder that many of our clients start to ask questions like, When is probate required in Texas? Do you legally have to go through probate in Houston? How can you avoid probate?
The short answer to these questions is that it depends. With a well-designed estate plan, many assets can bypass probate. Yet, whether you can avoid probate entirely depends on your unique circumstances. If you are in the planning phase, an experienced estate planning attorney, like those at Robbins Estate Law, can help you make provisions to care for your family when you no longer can. If you are working through the loss of a loved one, you may have less flexibility based on their estate plan or lack thereof. Even then, the probate attorneys at Robbins Estate Law can help make the process as painless as possible.
What Is Probate?
Probate is the process through which a deceased person’s estate is distributed to creditors and heirs. Most estates go through probate, whether the deceased left a will or not. In Texas, estate administration can be either dependent or independent. When possible, independent administration can save time and money, helping to minimize the stress of probate.
When the deceased designated an executor in their will, that person is typically responsible for administering the estate. When no valid will exists, no executor is selected, or the named executor cannot serve, the probate court appoints an administrator to manage the estate.
Regardless of the title of the person administering the estate, they must pay creditors and any estate taxes before distributing assets.
What Are Non-Probate Assets?
Not all assets must go through probate. Assets are either probate or non-probate. Although circumstances can vary, a good rule is that assets that include provisions declaring what happens when the owner dies are usually non-probate.
For example, a sole bank account would be a probate asset. However, a shared bank account that states it passes to the other owner when one dies would be a non-probate asset. Life insurance and similar payable-on-death benefits are also non-probate assets. As non-probate assets, trusts are one of the most common estate planning tools that allow bypassing probate.
With a well-designed estate plan, you can often place a significant percentage of your assets into trusts to avoid the probate process. The trust’s creator, known as the grantor, can typically set the trust’s terms to allow loved ones to access trust property sooner than if the assets passed through probate.
What Estates Can Bypass Probate?
Some estates can even avoid probate entirely. Usually, those estates have one of two features: extensive pre-death planning or relatively limited assets to pass.
Under Texas law, a small estate has only a homestead and $75,000 or less worth of assets to be distributed. Although this is typically an option for smaller estates, creative planning can take larger estates down to this level. Everyone entitled to take a portion of the estate must sign a small estate affidavit. As long as everyone agrees, you can avoid probate.
For estates that include only limited personal property, you may also be able to avoid probate by coming to an independent agreement about who will take what. You put that agreement in writing and notify the court of its terms.
Muniment of Title
Sometimes, whether through an estate plan or life circumstances, the only thing you need to do to close an estate is to clear title to property. In that case, you need no administrator and can avoid probate in most functional terms. You need only submit a will to request the probate court clear the title.
Again, when an estate plan or life circumstances allow, an estate may include only a payment due to the deceased’s surviving spouse. The spouse can submit an affidavit to the court and get the authority to collect the estate funds.
Although not technically a way to bypass probate, independent administration deserves an honorable mention. When the deceased creates a clear estate plan that no beneficiaries want to contest, independent administration can bypass many of the headaches of the probate process. When the deceased did not have any outstanding debts, an independent administrator may file an affidavit in lieu of inventory, further minimizing court oversight. Limiting court oversight means the independent administrator can move at their own pace, not dictated by court timelines.
How Can Our Law Firm Help?
Whether you are planning for your estate or managing your loved one’s estate after their passing, an experienced probate lawyer can help. The lawyers at Robbins Estate Law have many years of experience finding creative ways to avoid or minimize probate necessity, through trusts, independent administration, or a brand new combination unique to you. We understand that estate planning is about ensuring your family is cared for into the future, not money. Reach out today to learn more.