Many people have preconceived ideas about how the estate planning and probate process operates in Texas. A "myth" is "a widely held but false belief or idea." Many misconceptions about estate planning begin with someone's personal experience, which is then repeated without all of the details. In this post, we help you dispel the most common myths about Texas probate law so that you can draft your Will with confidence.
Myth #1: Probate is Always Required in Texas
Most people believe that if there is a Will, then the decedent's estate must go through the probate process. This can seem discouraging, especially if you want your heirs to receive the property as efficiently as possible.
Truth: Not All Texas Estates and Property Go Through Probate
Some Texas estates are actually exempt from the probate process. If a person doesn't have a Will and the total value of the estate is $75,000 or less, then the estate does not have to go through probate. In this situation, the heirs can simply file an affidavit with the court once 30 days have passed since the decedent died. In addition, some property passes without the probate process, including any account that is pay-on-demand, or which has a named beneficiary, or which is held in joint tenancy. For more about the small estate exemption, you can look at Title 2, Chapter 205 of the Texas Estates Code.
Myth #2: You Can Skip Probate In Texas if You Don't Have a Will
It's common for people to believe that by not having a Will, their estate will be able to skip the probate process. This is an attractive idea because people would like their heirs and beneficiaries to receive their inheritance as quickly as possible.
Truth: There Are Only Two Ways to Skip Probate in Texas
In reality, there are two ways to skip probate in Texas, but not having a Will is not one of them. If you create a trust before death, then the property that is transferred into the trust does not go through the probate process. The second option is when the estate is valued at less than $75,000, and the person does not leave a Will. This is the small estate process discussed above. Remember that to use the small estate process, you must satisfy both conditions: an estate that doesn't exceed $75,000 and not having a Will.
Myth #3: Once You've Written a Will in Texas, It Doesn't Need Revised
Most people believe that once they've written their Texas estate plan, the work is over. This misconception comes in part from working with lawyers who tell their clients to simply put the Will in a desk drawer and let their family members know where it is when the time comes.
Truth: You Should Review Your Will Annually
In reality, you should repeatedly review your Will during your lifetime and update it when circumstances change. You should review your Will when you get married or divorced, have children, move to a new state or country, acquire or sell assets, start a business, or any time you make a major life change. Thankfully, you can review and change your Will quickly with FastWill, saving you the time and money of hiring an attorney every time you need to make a minor change.
Myth #4: Your Texas Estate Plan Only Needs a Will
The most common part of an estate plan is a Will. Because people aren't as familiar with other legal instruments, they assume that they don't need other documents, but this is false.
Truth: Your Texas Estate Plan Should Include a Will, Power of Attorney, and Advanced Care Directive.
Most Texas estate plans will also benefit from having a Power of Attorney and advanced care directive. An Advanced Care Directive is a legal document that communicates your wishes if you become seriously ill or unable to communicate your healthcare choices. A Power of Attorney, or POA, is a legal document that designates who acts on your behalf in the event you are incapacitated. You can limit your Power of Attorney to matters that are financial or which pertain to health care. You can also have the POA expire after a certain amount of time.
Myth #5: Dying Without a Will Makes Probate Move Faster
There's a persistent idea that you can help the probate process move faster if you don't have a Will. In fact, the opposite is true.
Truth: Having a Will in Texas Lets You Avoid a Dependent Administrator
In Texas, you want to avoid a "dependent administrator" at all costs. Dependent administration happens when there wasn't a Will or the estate left behind massive debts and arguments between the decedent's heirs. This means that the court will need to approve every transaction by the estate, which is costly and time-consuming. In contrast, if you have a Will, then you can name an executor to settle the estate. Texas calls this "independent administration," and it is preferable because it happens without court supervision. This means that once the executor is named (by the Will) and a list of assets is filed, the executor has full control.
Myth #6: If You Want Your Spouse to Inherit Everything, You Don't Need a Will
Many people believe they don't need a Last Will and Testament in Texas since all of their assets will be given to their surviving spouse. This is a misconception.
Truth: You Need a Will if You Want Your Spouse to Inherit Everything in Texas
If you have a Will in Texas, then you get to say whether your surviving spouse inherits all of your assets. But if you die without a Will, which is known as dying intestate, then the property is distributed in accordance with Texas's interstate succession laws. Essentially, if you have a surviving spouse and no children and then die without a Will, then your spouse will inherit the community property. However, in that scenario, the spouse will only receive half of your real property. The other half will be divided up among your siblings and parents.
If you die without a Will and have a surviving spouse and children, then the inheritance process is more complicated. The surviving spouse gets all of our community property. Your spouse will receive one-third of your personal property and one-third of your real property, with the remainder going to the surviving children. If you have other children from a prior relationship, then your spouse gets half of the community property, while those other children receive half.
The bottom line is that dying without a Will makes things more complicated, not easier.
