Will Having a Will Help me Avoid Probate?

I received a note this week from someone who was confused. A friend’s husband had died leaving a Will that gave his wife a house he owned before they were married.

She had presented a copy of the warranty deed, marriage license, and death certificate to local authorities expecting that nothing more would be required to transfer title to her name.

She was surprised to discover that probate was required.

Wouldn’t having a Will avoid probate?

The short answer is: No.

Probate is important to assure the orderly transfer of property when someone dies.

Imagine someone dies leaving you a piece of property in a Will. If the Will is not filed for probate and does not become part of the public record, how does someone who comes to buy the property from you know it is actually yours to sell?

Probate is the legal process by which a Will is proved to be valid or invalid. During the probate process, an executor or administrator will inventory and collect the decedent’s assets, receive and pay the claims of creditors and tax collectors, and distribute remaining assets to the decedent’s beneficiaries.

A Will that has been probated serves as a link in the chain of title to show that property that belonged to someone who has died has been transferred to his heirs.

Not all property requires probate. For example,

  1. Assets such as life insurance proceeds, IRAs, retirement accounts pass outside of probate to the listed beneficiaries.
  2. Assets owned by the deceased person and others as “joint tenants with rights of survivorship” pass to the survivor outside of probate. Not all joint accounts are held with rights of survivorship so it is important to confirm.
  3. Bank accounts with a POD or TOD beneficiary listed pass to the beneficiary outside of probate.
  4. Real property conveyed by a Texas transfer on death deed or lady bird deed pass to the intended beneficiary outside of probate.

If avoiding probate is important to you, talk to your lawyer a plan that will minimize the need for probate.

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