Some assets do not require probate court in order to pass to a living person. They can be passed directly to the beneficiary, with no probate order needed.
Examples of non-probate assets
- Life insurance, retirement accounts, brokerage accounts. If you have these types of a accounts and have properly designated a beneficiary, that person should be able to get that money distributed directly to them once you pass away. Of course, they will need to complete proper paperwork, and prove their identity.
- Payable on Death accounts (POD accounts) at a bank. If you have this set up properly with the bank, your survivor will be entitled to the account upon your death.
- Property held in a trust may not need court intervention. There are many types of trusts, so be certain you understand your trust plan, and have done all that is legally required.
- Jointly held property may be able to pass directly to the survivor.
Types of problems that can occur
- Subsequent divorce. In the state of Texas, a divorce makes beneficiary designations to an ex-spouse invalid. For that reason, a divorced person will need to review and re-do their beneficiary designations after the divorce. They should also have a new will made.
- Problems can occur with beneficiary designations if they are ambiguous, not filled out properly, filled out but never filed, lost, improperly dated, improperly notarized, etc.
- Problems with trusts or joint ownership of property. Trusts that were drafted but never properly signed, property transfers that were never completed, documents that are signed but not dated, documents that are signed and dated but never notarized, lost documents, ambiguous language in documents, verbal agreements that were never put in writing.
Avoiding problems
- We recommend that clients review their estate planning, including their beneficiary designations and Last Will & Testament on a yearly basis to be certain everything is in order. A good time to do this is every spring, before tax season.
- Don’t do it yourself. Have an experienced wills and probate attorney look over your estate plan to be sure that it is valid, and up-to-date with current law.
- Always have a valid Texas will. Even if you take advantage of an estate plan that uses trusts and jointly held property in an attempt to avoid probate court, you should have a valid Texas Will. Your Last Will and Testament will designate an executor who will have legal responsibility and authority to evaluate and take care of debts and assets of the estate. It isn’t always necessary or helpful to completely “avoid probate court”, but it is advisable to simplify the process as much as possible. Your Will should work in harmony with the rest of your estate plan.
How We Can Help
We have experience in dealing with probate cases of all types, from straightforward to very complicated. Our attorneys and staff can assist you in English or Spanish and help you make a decision.
Check out our home page to see if you may qualify for a free consult.
