San Antonio Express-News
May 11, 2004

Using Power of Attorney to Avoid Probate

copyright 2004, Paul Premack

Your answer depends on whether you have made any arrangements to avoid probate. There are two basic ways to stay out of probate court: 1) have survivorship rights or pay-on-death arrangements for all assets, or 2) place the assets in trust so that ownership does not need to change at death.

Texas law assumes that any joint bank account does NOT have a survivorship right attached, unless that right is expressly stated in the account contract and signed by all parties. In many other states, all joint accounts are survivorship accounts automatically without saying so. Thus, when you say he put you on his accounts, you would have to review the account signature cards to see whether they specify a survivorship right or are silent on the issue.

Automobile ownership is keyed to the car’s title. IF the title is in his name only, it can be transferred to you after he dies without going to probate by using the "affidavit of heirship to a motor vehicle" form provided by the state.

His house is another issue. The legal wording in most home deeds specifies individual ownership without any type of probate avoidance. If he dies with that type of deed, his Will is going to have to be probated to pass title to the heir(s) named in his Will.

Since he is still living, and you are his agent under his durable power of attorney, you have time to rearrange his assets to avoid probate. You can work with the bank to be sure his accounts do have the proper legal wording. You can add your name to his car title with a right of survivorship. You can work with your attorney to change the title to his home, by creating a life estate arrangement or joint tenancy with right of survivorship.

In the alternative, you could create a living trust for your father and place all his accounts, his auto and his home into the trust. He would be beneficiary during his lifetime, and you would be trustee to manage the assets for him. The trust could be written to distribute assets to you upon his death, thus avoiding probate. You could also specify alternative plans (if you do not outlive your father, who gets the assets instead of you?).

The last alternative is to leave everything just the way it is, and allow it to go through probate when he dies. Texas probate is not an exceedingly complex process so long as the Will calls for independent administration, waives the executor’s bond, and is self-proven. You will need an experienced probate or elder law attorney after his death, but you would not have to take time away from him to make any changes to his assets while he is alive.