If you’re considering your end-of-life plans and want to ensure your family’s safety and comfort, you may already know and understand the need for a last will and testament. Understanding what happens after the will is drafted, however, is crucial to best position your estate for a seamless and hassle-free probate process for your loved ones. This includes understanding the legal classification of your assets.
Probate, or the process of distributing a person’s assets after death, can be a lengthy and complicated process. Through this process, the executor of the estate as named by a will must file an application for probate in the relevant county. Then the court will post notice of that application, opening up the process for contesting a will. Even if there is no contest to the will, a court must still hold a hearing to ensure the validity of the will and appoint the executor. Once the executor is appointed, the process continues—the executor must locate and distribute all assets, notify creditors, and resolve any disputes.
Some assets, however, are not so clearly defined. Even if you have employed a Texas estate planning attorney to minimize the assets that must go through probate, there will likely be assets remaining that must go through this process. These assets may include community property.
What Is Community Property?
Texas is one of few states considered a “community property state.” Community property consists of assets acquired by one spouse or the other during the course of a marriage, with the exception of gifts and inheritances. Community property is often held in only one spouse’s name, even though the other spouse has an interest in the asset. A probate proceeding is required to transfer the interest in the community property to the surviving spouse.
What Are the Alternatives?
Community property is not the only option for holding marital property. Joint tenancy is where the asset in question is actually held in both spouses’ names. If one spouse passes, the ownership automatically transfers to the other spouse. However, this option can be risky in the event of bankruptcy or other credit problems for one spouse, in which case both spouses’ ownership of the joint tenancy asset is at risk.
In Texas, a married couple can also agree in writing to community property with right of survivorship, meaning the surviving spouse automatically owns the property at hand without the need for probate. A Texas estate planning attorney can help you decide which option is best for you and your family.
Call a Texas Estate Planning Attorney
If you have questions about the division of your estate and want to anticipate the impact of the Texas probate process on your estate, call McCulloch Miller, PLLC. The attorneys at McCulloch Miller, PLLC are experienced at helping our clients develop end-of-life plans. We can also discuss the Texas probate process and the potential for converting probate assets to non-probate assets to avoid this complicated process. Contact our office at 713-936-9073 to schedule an initial consultation with an attorney on our team.