Probate is the court process that administers a deceased person’s estate and that looks after people who cannot make their own personal, health care and financial decisions. This typically falls into two general categories: minor children (under age 18) and incapacitated adults. Probate proceedings can be expensive and time-consuming. Additionally, many of the court proceeding and its associated documents are a matter of public record. Many people choose to avoid probate in order to save money, spare their heirs a legal hassle, and keep their personal affairs private.
This is a common form of asset ownership. Joint tenancy with rights of survivorship has the advantage of avoiding probate at the death of the first spouse. However, on the death of the surviving spouse, an asset would go through probate. You should think carefully before adding the names of other relatives to your bank accounts. Once someone is added onto an account, he or she may legally pledge the account or create a security interest in the account without other account owners’ consent. In addition, the use of joint tenancy with rights of survivorship may result in unnecessary death taxes on the estate of a married couple. Typically, real estate in Texas is not owned as joint tenancy with rights of survivorship property.
The document a person signs to provide for the orderly disposition of assets after death. Wills do not avoid probate. Wills have no legal authority until the willmaker (testator) dies and the original will is approved by the Probate Court. Still, everyone with minor children needs a will. It is the only way to name who you would like to be the new "parent" of an orphaned child. Special testamentary trust provisions in a will can provide for the management and distribution of assets for your heirs. Additionally, assets can be arranged and coordinated with provisions of the testamentary trusts to avoid death taxes.
Sometimes called a Directive to Physicians in Texas (or an Advance Medical Directive in other states), a living will allows you to state your wishes in advance regarding what types of medical life support measures you prefer to have, or have withheld/withdrawn if you are in a terminal condition (without reasonable hope of recovery) and cannot express your wishes yourself. Oftentimes a living will is executed along with a Medical Power of Attorney, which gives someone legal authority to make your health care decisions when you are unable to do so yourself.
If you die without even a Will (intestate), the Texas Legislature has already determined who will inherit your assets and when they will inherit them. You may not agree with their plan, but roughly 70 percent of Americans currently use their state provided plan rather than creating a will or revocable living trust for themselves.
You may avoid probate on the transfer of some assets at your death through the use of beneficiary designations. Laws regarding what assets may be transferred without probate (non-testamentary transfer laws) vary from state to state. Some common examples include life insurance death benefits and annuities and retirement plans.
These allow you to appoint someone you know and trust to make your personal health care and financial decisions even when you cannot. If you are incapacitated without these legal documents, then you and your family will be involved in a probate proceeding known as a guardianship and conservatorship. This is the court proceeding where a judge determines who should make these decisions for you under the ongoing supervision of the court.
This is an agreement with three parties: the Trustmakers, the Trustees (or Trust Managers), and the Trust Beneficiaries. For example, a husband and wife may name themselves all three parties to create their trust, manage all the assets transferred to the trust, and have full use and enjoyment of all the trust assets as beneficiaries. Further "back-up" Trustees can step in under the terms of the trust to manage the assets should the couple become incapacitated or die. Special provisions in the trust also control the management and distribution of assets to heirs in the event of the death of a Trustmaker. The Revocable Living Trust may allow them to accomplish all this outside of any court proceeding.
Austin - (512) 480-8828 | *Georgetown - (512) 869-1435 | *Highland Lakes - (830) 598-1700 | *San Antonio - (210) 510-4143 | *All other areas - (877) 545-8828 |
*By Appointment Only