Posted by: Oct 29, 2020

Do You Have to Probate a Will in Texas

Losing a loved one is never easy. Unfortunately, dealing with the aftermath can make matters even more emotional and difficult.

After a loved one has passed away, you may be wondering what you need to do next. If they left a will, this can help you understand your loved one’s wishes and how they wanted to leave their property and assets. However, there are still things that must be done to manage their estate.

In Texas, your loved one’s will may need to go through probate after they pass away.

The Texas probate process can be complicated and difficult to navigate. Fortunately, however, you don’t have to go through this process alone.

Estate planning attorney Adam Curley of the Curley Law Firm is ready to help. Give us a call today for answers to your questions answered and to get the help you need to get through this process.

What Is Probate?

Many people want to know, Do you have to probate a will in Texas? Before getting to that question, however, it is important to first have a general understanding of what probate even is.

Probate is the process by which courts ensure that a person’s debts are paid and their property is distributed to their heirs and beneficiaries upon their death.

Probate laws will vary from state to state. Thus, it is important to know how probate works in Texas specifically.

Does a Will Have to Be Probated in Texas?

A common question people have is, Do all will have to go through probate in Texas?

Many believe that a will has to go through probate in Texas. However, that is not necessarily the case. There are certain circumstances in which a will does not have to go through probate.

One situation in which a will does not have to go through probate is if your loved one left only non-probate assets. 

Non-probate assets are those that can pass automatically outside the probate process. Below are some examples of non-probate assets that do not have to pass through probate. 

Property Owned as a Joint Tenancy 

Property can be owned by multiple people as “joint tenants with rights of survivorship.” This means that when one person passes away, their interest in the property will pass automatically to the surviving owner or owners. This is typically used by spouses who own property together.

If your loved one owned property as a joint tenant, no further action in probate will be necessary to transfer title and ownership in the property. 

Retirement Assets

When you sign up for a retirement plan, you have the ability to designate one or more beneficiaries. Such retirement plans include:

  • 401(k)s, 
  • 403(b)s,
  • Individual Retirement Accounts (IRA), and 
  • Roth IRAs.

If your loved one owned a requirement account upon their death, the assets saved in their account will pass automatically to the designated beneficiary or beneficiaries without the need for probate.

Life Insurance

Life insurance policies are similar to retirement plans in that you will designate one or more beneficiaries to your plan. Again, life insurance proceeds will pass to designated beneficiaries automatically outside the probate process.

Payable On Death or Transfer On Death Assets

Payable on Death (POD) and Transfer on Death (TOD) assets can also avoid the probate process. 

If the deceased has designated someone as a POD beneficiary on a bank account or as a TOD beneficiary on stocks, bonds, or mutual funds, these assets can also pass automatically without the need for probate.

Alternatives to a Full Probate in Texas

Even if your loved one’s will cannot avoid probate entirely, you may have some alternatives. Two alternatives to a full probate in Texas include a probate as a muniment of title and a Texas small estate affidavit.

Probate as a Muniment of Title

Probate as a muniment of title is still a probate proceeding. However, it is a much simpler process than a full probate. 

A court will allow this where it determines that the deceased owed no unpaid debts, with the exception of any debt secured by a lien on any real estate. If the court is satisfied by the application and proof provided by the applicant, it will then enter the will into probate and order that the terms of the deceased’s will be carried out accordingly. 

Texas Small Estate Affidavit

When someone dies without a will, their heirs may be able to avoid probate by filing a small estate affidavit. However, this can be done only where the value of the deceased’s estate, excluding their homestead and any exempt property, is $75,000 or less

If the court approves the affidavit, the transfer of the deceased’s property can avoid the lengthy probate process. 

Contact the Curley Law Firm Today

Do you have to probate a will in Texas? Ultimately, it depends on many factors.

The process can certainly be complicated, but you don’t have to handle it on your own. If you have questions about whether your loved one’s will must go through probate or how to navigate the probate process, Adam Curley of the Curley Law Firm is here to help. 

Contact us today online or by phone at 832-225-3448 to speak with a lawyer and get the answers and legal representation you need and deserve.