What Assets are Beyond an Executor’s Reach?

Dear Mr. Premack: My wife and I were each in our second marriages. She made a will leaving everything to her children from the previous marriage, made her oldest daughter the executor of her estate, and left nothing to me. I was fully aware of all of this. My wife died recently, and her daughter said she filed for probate.  She was asking for information on all accounts with my wife’s name, and information about a car that was in my wife’s name. So I was wondering what funds or property would be considered Probate assets? What is within the Executor’s reach and what is beyond her reach? – BJ 

Texas Property and Probate law classify various assets as either “testamentary” or as “non-testamentary”. The testamentary items are subject to control by the Executor under the terms of the decedent’s will. The non-testamentary items are, by law and contract, exempt from the Executor’s control.

Our Property and Probate laws also classify various assets as either “community property” or as “separate property”. Separate property is legally defined as any items that were owned prior to the date a marriage commenced, items received during the marriage by gift or inheritance, and items which the spouses agreed in writing would be separate property. Community property is “all other property acquired during the marriage” and if there is no evidence that an item is separate property, the law presumes that it is community property.

Consequently, the Executor of your wife’s estate has authority to inquire into any financial detail that would allow her to classify an asset. She can ask for paperwork to determine whether an asset is community or separate property. She can ask for paperwork to determine whether an asset is testamentary or non-testamentary in character. Here is a list of items that are non-testamentary:

  1. Life insurance policies and annuities which designate individual beneficiaries

  2. IRA, 401k and 403b retirement accounts and other pensions which designate individual beneficiaries

  3. Joint bank accounts (checking, savings, CD’s, money funds) which are designated on the bank signature card as “with right of survivorship”

  4. Social security survivor benefits and pension survivor benefits which identify specific beneficiaries

  5. Joint or singly-held bank accounts (checking, savings, CD’s, money funds) which include contractual “pay on death” beneficiary designations

  6. Brokerage accounts and other securities which include contractual “transfer on death” beneficiary designation

  7. Jointly held automobile titles which include “right of survivorship” provisions

  8. Real property which is held jointly “with right of survivorship”

  9. Any community property which is subject to a binding “Community Property Survivorship Agreement” signed by both spouses and recorded with the real property records at the courthouse

  10. Assets held in a trust and controlled by a trustee, for example, a revocable living trust agreement

The Executor has no control over any asset that was already your separate property, anything classified as your half share of a community property asset, or any asset which is non-testamentary. The Executor does have control over any asset that was the decedent’s separate property (unless there is a non-testamentary designation of beneficiary), any asset that is classified as the decedent’s half share of a community property asset (unless there is a non-testamentary designation of beneficiary), and any non-testamentary asset for which the designated beneficiary is “the estate” of the decedent. Non-testamentary designations override and take priority over the terms of the Will.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2012) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, May 6, 2013

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Paul Premack, 2019-2020 President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) is *Certified as an Elder Law Attorney ( CELA ) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in Texas and in Washington State, and handles San Antonio Probate and Bexar County Probate, Wills, Living Trusts, Estate Planning, and writes the legal column for the San Antonio Express News.

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