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LEGAL ISSUES: DOES A SMALL ESTATE REQUIRE A WILL AND/OR PROBATE?

LEGAL ISSUES: DOES A SMALL ESTATE REQUIRE A WILL AND/OR PROBATE?

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The following is provided for informational purposes only and is not, nor should it be construed as legal advice.

A common question that presents itself in my law practice is, “Do I need a will and should it be probated if all that I own is a house, car, some furniture and a small bank account or savings account?”

Unfortunately, the answer to this question is not always a simple “Yes” or “No” and, sadly, sometimes inquiry regarding the need for a will is not made until after a person has died.  The only safe answer to, “Do I need a Will?” is “Yes”.

The need for probate really depends not so much on the value of the decedent’s property as it does upon the type of property.

A greatly over-simplified rule of thumb is, “If the property being passed after death is property that must pass by title or deed, then the estate will probably need both a will and a probate proceeding.”

Examples of assets which are commonly held by small estates include:

Bank or Savings Accounts – If they are only in the name of the decedent and do not have a designation on the account that they are “joint with right of survivorship” or “payable on death,” then they must pass through probate.

Residence – Settling title to real property will in most cases require a probate proceeding even if the property is a community interest which is passing to a surviving spouse.  This becomes even more important if the decedent had children from a prior marriage.  This circumstance can result in the surviving spouse owning only one-half of the residence, and the children from a prior relationship owning the other one-half.  In the most simple of cases, where the residence is being offered for sale and all of the heirs-at-law agree (a situation that does not often exist with blended families), and a title company is willing to write a title policy to protect the new owner solely upon the authority of an affidavit filed by the heirs, probate may not be required.  (This is not usually a viable alternative and should not be relied upon.)

Automobiles – Typically, automobile titles may be transferred without probate through an “Affidavit of Heirship for a Motor Vehicle.”  A form of the affidavit may be found free of charge by downloading from the Texas Department of Transportation site online at www.txdmv.gov

Insurance Policies and IRA Accounts – These accounts typically pass outside of probate, and “letters testamentary” are not normally required to transfer ownership.  A large and often encountered exception is when the decedent has failed to designate a beneficiary or the beneficiary predeceases.  In those cases, probate will be required to transfer title.  If there is a will, accounts will be transferred pursuant to the will; if no will, the accounts will be distributed pursuant to intestate succession.

Personal Belongings – Most personal items do not require a probate proceeding to determine how they should be distributed after death, and if those items are the only items in controversy, it is recommended in most cases that you not submit it to probate and simply find a way to distribute the estate to the decedent’s heirs.  In some cases, however, no matter how small the estate, it may take a probate proceeding and a court declaration of heirs to keep one heir from riding roughshod over the others.

If the decedent’s estate is less than $75,000.00 exclusive of homestead and no will exists, then it is possible to obtain a court order declaring the identities of the heirs and establishing the percentages of property which should pass to those persons.  (Although this is still a probate proceeding, it is greatly simplified and is only used when no will exists.)

In addition to the preceding, at least two other things should be considered before a person decides that they may not need a will:  

1 If they have minor children, they should have a will to designate a guardian.  (A designation can also be made without a formal will.)

2. If they have a blended family, it is almost certain that they will need a will if they are to protect either their current or previous family.

Should you have questions regarding the necessity of a will or the necessity of probate, do not hesitate to call an attorney of your choice to make your needs known.  Most attorneys will not try to perform those tasks if all of the indications are present that they are not needed.

See Also
A Crash Course in Insurance

If you do need a will, which is probable in most cases, please be advised that it is far less expensive to do a will that expresses your intent than it is to die intestate and leave your heirs with the burden of sorting out the relationships.

James Bright has been admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas.  He maintains an office in Houston and by appointment another at 208 McCown Street in the heart of historic Montgomery.  Contact may be made by telephone (936) 449-4455 or (281) 586-8277.  For more information about wills or probate in Texas, please see- www.houstontxprobate.com

IF YOU WISH TO SUGGEST A TOPIC FOR THIS COLUMN, SEND TO:

JAMES M. BRIGHT

14340 TORREY CHASE BLVD., SUITE 150

HOUSTON, TEXAS 77014

Email:  [email protected]

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