What is Probate?

Many people are never exposed to probate until the death of a loved one.  Probate is a legal process by which a decedent's probate estate (or probate assets and debts) are administered through the courts, eventually resulting in payment of claims and distribution of the probate assets.  If the decedent left a Will, the Will is generally probated and guides the estate administration.  If the decedent did not leave a Will, the decedent has died "intestate" and distribution is guided by the Texas Probate Code regarding intestate succession.    

Any estate containing probate assets must go through probate.  Some estates avoid probate, either by eliminating "probate" assets and/or setting up a Living Trust.  Probate assets generally consist of individual assets, or those in the name of the decedent and without a payable on death designation, tenancy in common assets (or those without a right of survivorship designation) and beneficiary assets where the probate estate is named a beneficiary, the decedent failed to name a beneficiary or all the beneficiaries have predeceased the decedent.  Examples of probate assets include bank accounts (without a payable on death designation), real property, business interests, stocks, bond, notes and mortgages, personal property, automobiles, other vehicles, etc.  Non-probate assets pass through another operation of law.  Examples of non-probate assets include life insurance, pension benefits, profit sharing plans, annuities, jointly owned property with right of survivorship, trust assets and powers of appointment. 

There are various reasons people seek to avoid probate, primarily to maintain privacy regarding their assets, to limit the legal processes needed to distribute the estate, or to avoid multiple probates when they own real property in several states.

If a person only has "non-probate" assets, probate is not needed.  This is often accomplished by transferring all of the decedent's assets which would be probate assets to a Trustee of a Living Trust or Revocable Trust during the decedent's lifetime.  This process involves creating a Trust and titling all the trust assets in the name of the Trustee to hold said assets in Trust.  Any assets the decedent obtains after creating the Trust, must be titled in the Trustee's name to be held in Trust, otherwise they will be probate assets upon the death of the decedent and probate will be necessary to administer those omitted assets.

It is important to consult a probate and estate planning attorney if you are nominated as executor in a recently deceased loved one's will or trustee of a trust, as there are various types of probate, which may or may not be needed, depending on the probate and/or non-probate assets of the estate.  Many people have a difficult time distinguishing and separating a Probate Estate from a Trust Estate and thus the probate and non-probate assets.  An attorney can guide you to the proper process needed to ensure proper administration decedent's probate and/or trust estate.

Further, it should be noted that generally some, if not all, of the costs of administration are reimbursed to the executor or trustee by the estate.  As such, do not let fear of costs deter you from consulting an attorney regarding probate and estate administration.