What is probate?
Most people do not know what “probate” means. It sounds like some big, hairy monster which will take all your money and eat up all your time. In fact, probate is merely proving: proving what the person left, paying the proven debts and distributing the rest according to his Will or, if she left no Will, the Texas Rules of Descent.
What should be included in a probate estate?
In addition, many of the things a person leaves are not, or need not be, part of the probate estate. We know how someone wants their bank accounts to pass if they hold them “joint with right of survivorship” or “pay on death.” We know how someone wants their IRA, 401(k)s or other brokerage accounts to pass if he has completed a Beneficiary Designation form. None of that needs to be proven in court. Similarly, a home can be held “joint with right of survivorship” or pass on death through a recorded “Lady Bird” Deed or a Texas Transfer on Death Deed.
This can be a disappointment to relatives who think they are going to find a pot of gold by contesting a Will.
How do heirlooms pass?
Personal possessions which are heirlooms do not pass through a Will. In Texas, they can only pass through a handwritten memorandum, witnessed and notarized like a Will. If someone attempts to bequeath them in a Will, that bequest is only a request.
Can you pass everything outside a Will?
Could you pass everything but your clothes and furniture outside a Will? Possibly. But there is always the risk that you will miss something or the happier risk of an unexpected inheritance or winning lottery ticket.
Better play it safe.
The time your executor will spend in court is less than it takes to drink a cup of coffee and the amount spent to probate your estate is substantially less than the cost of an heirship proceeding.
Terry Garrett is a member of the National Academy of Elder Law Attorneys and is active in the Texas and Austin Bar Associations. She graduated with honors from Cornell University. She was on the Dean’s List at Wharton Business School. She earned her J.D. at Columbia Law School, receiving the Parker Award and a Mellon Fellowship.
She assists families of people with special needs, people planning for the retirement years and people administering estates.