Depending on the situation, the probate process can be a nightmare. For this reason, many believe probate should be avoided whenever possible. However, avoiding probate depends on the circumstances of each individual situation. While creating a Houston estate plan that avoids probate will be beneficial in most circumstances, there are certainly some situations where the level of planning required to avoid probate is unnecessary.
What is Probate?
Probate is the court-guided process through which a decedent’s property is distributed accordingly. Through this process, the court authenticates the decedent’s will, notifies potential heirs, accounts for the decedent’s property, and addresses tax obligations before estate property is distributed to beneficiaries. The court is also responsible for appointing an executor of the estate to oversee the process and protect the interests of the estate and its beneficiaries. In the case of an intestate estate (where the decedent dies without a will) probate serves the same functions, with the only difference being that property is ultimately distributed according to state intestacy laws.
While every state’s probate process is unique, all wills are required to pass through the probate process. Most estates are able to move through the Texas probate process with relatively minimal court involvement. However, more court involvement is necessary in situations where a dispute arises, or where the estate plan involves a high number of beneficiaries or asset classes.
Why Avoid Probate?
It is typically a good idea to avoid the probate process for two reasons. The first is probate can be time-consuming. Depending on the circumstances, it can take six months to more than a year to complete. While the estate is moving through probate, the heirs will not receive anything from their inheritance. This can be frustrating, especially if there are expenses involved with maintaining a property during this time, such as monthly mortgage payments.
The second reason is to avoid the expenses associated with probate. During the probate process, the estate will be responsible for paying fees to the court. Furthermore, the estate will incur additional expenses if the executor needs the help.
Most of the time, probate is avoided through the creation of a trust agreement. A trust allows property to be passed directly to the named beneficiaries without going through probate. However, while creating a trust can save the estate money by avoiding probate, it also requires a greater initial estate planning investment. Those who would prefer to avoid the upfront expense may decide to pass the expense on to their heirs instead.
Are You Interested in Learning About Avoiding Probate?
Every situation is different, and what works for some does not work for all. If you or a loved one is looking to put together or modify a Houston estate plan, McCulloch & Miller, PLLC can help. Our attorneys have the experience and skill to develop an estate plan that helps you protect and pass on the assets you worked so hard to earn. If you are interested in having us help you reach your estate planning goals, give us a call at 713-333-8900.