San Antonio Express-News
July 6, 2004

Ways to Avoid Probate

copyright 2004, Paul Premack

Probate is a process for administering the assets and debts that remain when someone dies. It is most often a courtroom process. With proper legal planning in Texas can be either avoided altogether or can be dramatically simplified.

The "standard will" you have signed should be written to allow probate independent of court supervision. If so, you have already gone a long way toward avoiding the long, expensive process that probate can become when a person dies without a Will, or with a faulty Will.

A cost-benefit analysis is needed, comparing the pros- and cons- of probate against the pros- and cons- of each method you might use to avoid probate. Here is a list of the options.

1. Rely on your Will. Your estate may not avoid probate court, but it may still be quite straightforward to administer. The Will should answer several vital questions: Who are your heirs? Who will take charge as executor? Is bond required for the executor? What happens if one of the heirs has already died? With the help of your attorney, you Will can be written with legal wording that will keep the cost of probate to a minimum.

2. Create a Living Trust. When written and administered properly, you can stay out of court altogether with a living trust. A Will distributes your estate when you die by going through probate. A living trust not only distributes your estate when you die (but without any probate), it is also active while you are alive in case you become disabled. Because it does more than a Will, a living trust can be more costly than a Will. But if written correctly and funded properly, a living trust will cut your overall expenses by avoiding the cost of probate.

3. Depend on rights of survivorship. Bank accounts, stocks, bonds, and even real estate can be owned with survivorship rights. A joint bank account is typical: when set up with survivorship rights, the account stays out of probate. Until 15 years ago, it was not legal for a husband and wife in Texas to use rights of survivorship, but our community property laws have been updated now. Be cautious, because survivorship rights can contradict and supersede the terms of your Will.

4. Use a life estate. Certain assets, most often a family home, can be transferred at death outside of probate by using a life estate. A deed is prepared conveying the home to certain persons (like the children) while retaining the right to use and occupy the house for the grantor’s lifetime. This preserves homestead protections, yet avoids probate of the specific asset on which the life estate was placed.

Please seek individual legal advice before you select an option. Different attorneys will charge different fees, depending on the amount of work to be done and how unique your situation is. Leaving your estate to probate can, under the right circumstances, be the least costly alternative.