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Knowing when a loved one’s estate must go through probate

| Jan 14, 2021 | Probate |

When a loved one dies, you have many things to worry about on top of grieving for the deceased. This is especially true if the family expects you to take care of the estate. Administering an estate can be a difficult task. One of the first things you must determine is whether the estate must go through the probate process.

Texas probate law

Probate is the court process used to make sure that the right people end up with the right shares of a decedent’s estate. If the person died with a will, that document guides the court and the personal representative (executor) regarding how to distribute the estate. If the person died without a will (intestate), state law provides that guide. In that case, the judge determines the heirs and how to divide the estate, using state statute as the guide.

What is included in the probated estate?

When we think of an estate, we usually think of everything a person owns. For probate purposes, though, the definition is much narrower. The only assets that must go through probate are those titled in the decedent’s name that do not pass to a beneficiary in some other way. Examples of non-probate assets include:

  •  Trust assets – If the decedent put property into a trust, the trust now owns that property and it does not go through probate.
  • Payable on death (POD) accounts – Also referred to as transfer on death (TOD) accounts, these accounts have a named beneficiary to whom the bank or firm will transfer the money when the account-holder dies. Nearly all retirement accounts are set up this way.
  • Insurance policies – Most insurance policies have a named beneficiary to receive the insurance proceeds when the insured dies.
  • Transfer on death deeds – Texas law allows homeowners to record this special deed that will pass the real estate to a beneficiary simply by filing an affidavit after their death rather than going through probate.
  • Joint ownership with right of survivorship – The decedent may have owned other assets, including real estate and bank accounts, with another person. If they were joint owners with a right of survivorship, the other person will become the full owner upon the decedent’s death.

Only after you remove all these assets from the decedent’s estate do you have the probate estate.

The small estate affidavit

Texas does not require probate in every death, even if there are probate assets. If the probate assets are minimal, a full probate is simply not worth the trouble. You can use a small estate affidavit to transfer the property if the probate estate meets the following criteria:

  • The decedent did not leave a will
  • The amount of probate assets is not more than $75,000, not including exempt property, such as the homestead

There are a few other factors to consider. Harris County has created a useful flow chart for understanding how this process works. An experienced probate attorney can also help you figure out whether you need to go through the probate process or can settle the estate another way.

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