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Is probate always necessary in Texas?


A last will and testament stands as a critical document in estate planning. When a testator passes away, their will reflects decisions they made while alive regarding who receives what assets, among other directives. Often, carrying out the directions presented in the document requires opening the estate in a Texas probate court. Some people might wonder whether it is always necessary to probate the will.

Assets that don’t go through probate

When the testator is the sole owner of an asset, probate might be necessary to transfer the ownership to a beneficiary. However, jointly owned assets would pass to the other owner. Jointly held financial accounts would transfer on one owner’s death. The same becomes true with real estate that involves joint tenants with rights of survivorship ownership.

Named beneficiaries do not own a financial account, but they receive designation as the new owner upon the primary owner’s passing. Such transfer-on-death, or TOD, accounts would not require probate.

Setting up a revocable living trust is another option. A trust allows assets to pass without probate, which could be better for survivors in some situations.

In Texas, there is another option for avoiding probate called a small estate affidavit. A legally sound affidavit could allow a limited amount of assets to transfer outside the complete probate process.

Estate planning and probate concerns

There may be scenarios where some property requires probate while other assets do not. A parent might name a child as a beneficiary on all financial accounts, but a house may be in only one name, for example. The house would go through probate, but the TOD accounts would not.

During the estate planning process, a testator might consider exploring all joint and TOD options. Taking steps to prevent probate could make things easier for heirs and beneficiaries.