HOUSTON LAWYERS DIRECT

Probate is a legal process whereby a deceased person’s property is inventoried, valued, and subsequently settled according to the decedent’s will. The word probate originates in early English law dating back to the 12th century and literally means ‘to prove’.

When a person dies with a will, the Probate Court will proceed to confirm the authenticity of the deceased persons will. Normally the probate attorney (usually hired by the executor for the estate) will carry this out by filing the necessary paperwork on behalf of the deceased. The purposes of probate are to ensure the wishes of the deceased are carried out, that the chosen executor is confirmed and sworn to execute those wishes, and to protect the interests of surviving heirs who may have claims against the estate.

After probating of the will, by the court, it becomes an instrument of law and the court accepts it as authentic. Once this occurs it is very difficult to contest the validity of the will.

At the time of death, the Probate Court will require a complete inventory of all assets of the decedent. This may include but is not limited to; real estate, bank accounts, personal belongings, investment property (such as collectibles and antiques), household property, stocks and bonds, cash and virtually anything else of value. The probate attorney will then draw up an inventory and distribution list of the assets of the estate, and file it with the court. This list of assets of the deceased becomes public knowledge and is subject to claims by creditors, federal and state governments (in the case of taxes) and possibly disinherited or interested parties that may assert their claim to those assets.

Essentially, any item with a monetary value owned by the deceased at the time of his death becomes the property of the estate of the deceased. The estate’s property can then be taxed, claimed by creditors, or available to parties who wish to assert a claim of ownership to those assets.

Some assets can avoid the process of probate by passing contractually to a beneficiary. Examples are Life insurance policy that is ‘payable on death’ (POD) to any party other than the estate, stock portfolios termed ‘Transfer on Death’ (TOD) and joint bank accounts that are termed ‘jointly owned with rights of survivorship’.

Some people choose to avoid probate, to allow their beneficiaries to receive assets free of taxes or public knowledge, and to avoid unnecessary and additional legal fees, or to protect their assets from claims filed after their death.

Ways to avoid probate can include placing assets in joint ownership with rights of survivorship, for instance, bank accounts or real estate. You should use payable on (POD) death designations on bank accounts and transfer on death (TOD) on stocks, 401K’s, and IRA’s. It also is important to name a beneficiary on life insurance policies, instead of naming the estate the beneficiary and subjecting the life insurance proceeds to taxes and probate.

As far as cash is concerned, you can freely distribute gifts of up to $12,000 per year to any person you choose, without the intervention of taxes.

The most popular method of avoiding probate is by placing your real property (home, land, etc) into a living trust. A living trust is a separate entity whereby you would still control the assets, however you do not actually own them and therefore when you die they are not subject to probate. There are two forms of living trusts, a revocable, and an irrevocable trust.

Contacting an attorney who specializes in wills, estates and probate is the best way to get started and gain a thorough knowledge of what you should be doing to avoid probate.

Related posts:

1. What happens if I die without a will?
2. Am I responsible for my deceased parent’s or spouse’s debts?
3. Probate
4. Houston Wills, Trusts, and Estate Planning: Understand the Basics
5. If I agree to be my Relative’s Guardian, what have I agreed to do?

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Tags: death, educational articles, probate, resources, trusts, wills

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  Earl 1 year ago 2 points

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  This article is very informative. Thank you.
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