People seem obsessed with avoiding probate in Texas. The fear of probate expense and complication is often the reason. And almost invariably, that fear isn’t justified. The fear is fueled by “free” seminars put on by lawyers and non-lawyers who advertise enticing ways to “save” by avoiding probate. Too many of these opportunists are sales people who end up charging $5,000.00 or more for the products they sell when probate of the estate they claim to be saving money on would cost half of that figure in Texas. It is true that in many states probate can cost tens of thousands of dollars. That is not so in Texas.
Certain property can be transferred outside of probate, but most without costing thousands of dollars. Since 2015, Texas has allowed for deeds of real estate that transfer on death to a beneficiary. Since 2017, Texas allows for Transfer on Death designations of vehicles if limited to a sole beneficiary. Bank and brokerage accounts can be transferred out of probate through right of survivorship or pay on death contracts in accordance with contracts of the financial institution in which the account is housed. However, none of these tools should be employed without a comprehensive estate plan prepared with the assistance of a licensed attorney.
Relying upon seminars put on by those who stand to reap financial gain to “save” money on probate, is at best, counterproductive. Instead, one should seek the counsel of a licenses attorney who is knowledgeable in matters of probate and estate planning.
Texas allows for Independent Administration if the decedent’s will appoints an Independent Executor. Although the magic words Independent Executor are usually used by a Texas lawyer preparing a will, any language in the will that indicates the Executor is allowed to proceed independent of the probate court will suffice. Unless rare circumstances suggest a bond is needed, most Texas attorneys include in the will that the executor is to serve without having to post a bond. This allows the executor to avoid having to put up a bond for double the value of the estate.
With Independent Administration, the executor goes to court once to prove the facts regarding the death and to file the will for probate. Following a brief hearing, the Independent Executor will be issued Letters Testamentary by the county clerk. This paper gives the executor the power to deal independent of the court with all matters of the estate, including dealing with all the property in the estate. The Independent Executor pays all the expenses of the estate, including the final medical and funeral expenses of the estate. The Independent Executor collects and distributes all the property of the estate to the beneficiaries.
Handling the affairs of a deceased loved one is a stressful and time-consuming process even in simple estates. Grief makes the tasks even more difficult. If the decedent planned well with a will appointing an Independent Executor, that person is able to shoulder the tasks guided by a qualified attorney who takes him or her through it step by step.
All too often, individuals, who don’t have a will drafted, forget to transfer property while they are alive. Instead of avoiding probate, because without the will there is no Independent Executor, the property will have to be transferred througha dependent administration in which all action to properly transfer the property will require the expense of a hearing to obtain a court order. The heirs then find out too late that the decedent, in trying to avoid probate, has been penny wise and pound foolish.
Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She lives in beautiful Somervell County, near Chalk Mountain