Probate takes place after the individual is deceased. It entails a situation where the decedent had sufficient assets in his or her name to qualify for the necessity of court administration of those assets pursuant to law. In Texas and other states, probate involves the appointment of a representative to administer the estate on behalf of the decedent. This can be the person appointed in a will or it may be a person who applies to the court where there is no will.
The representative will collect all assets and list them in an inventory that is filed with the probate court. Creditors and administrative expenses are paid and the remainder of assets distributed to the beneficiaries. Without a will, the beneficiaries will be those persons listed in the state statute relating to intestate succession.
In some instances, an estate may not need to be filed or submitted to probate. Thus, if all of the assets were held jointly with the right of survivorship, then the surviving joint owner will become the owner of the assets automatically at the death of the other joint owner. Assets invested in certain accounts or in life insurance policies with listed beneficiaries are also not includable in a decedent’s probate estate.
Assets titled in the name of a trust may also be exempted from probate requirements. That is why a living trust is widely said to be a useful tool in avoiding probate. In order to set up a living trust and to determine whether it is feasible and advisable to do so, the asset owner should consult with an experienced estate planning attorney. Probate is a highly public and accessible process in Texas and other states, but it can be avoided with professional assistance and focused planning in accordance with the person’s expressed wishes.
Source: greenbaypressgazette.com, “Avoiding probate with estate planning“, Carissa M. Giebel, Nov. 30, 2015