Probate seems to be a mysterious process to many people. Unless a person has gone through that process, perhaps in handling a loved one’s estate, they seldom have a very good understanding of it. Following are a few of the more common misconceptions.
Get me out of jail! It always makes me chuckle to myself when I receive a call at the office and the person on the phone starts telling me this story about their relative that just got arrested and they need to get him out. I have to then explain that probate is a process for transferring property of a deceased individual; not the status in criminal law known as probation. I don’t practice that type of law.
If you have a will you don’t go through probate. A fair number of new clients think that by making a will they will avoid that process called probate that they hear so many scary stories about. What I that really determines whether your estate needs to go through probate when you die. The good thing about having a will is that if you do have to go through probate, your will can make that process much easier and more streamlined. That usually translates to less costly.
If you have a will you have to go through probate. On the flip side of the previous misconception is this one. Occasionally I’ll talk with someone in a casual conversation and they will state that they decided not to do a will so that they can avoid probate. As noted above, whether you have a will or not will not determine whether your estate needs to go through probate. If your estate does have to go through probate, the absence of a Will usually will make that process more cumbersome and expensive. It’s kind of like that old commercial: “Pay me now or pay me later.”
Everyone has to go through probate. Surprised? No, not everyone’s estate needs to go through probate. If all your assets are titled in a certain way (in a trust or with survivorship provisions, for example), your heirs may not need to probate your estate. Similarly, if all you own when you die is personal property that does not have title documentation, you may not need to have your estate go through probate.
Probate is always long, drawn out and expensive. There are some states that have a well-deserved reputation for long and expensive probate processes. Texas is not one of them. Obviously, if you have a complicated estate or your beneficiaries squabble over who gets what or the validity of your Will, your probate may be long and expensive even in Texas. But most of my clients complete the part of probate involving the court within a few months and generally complete the entire process within a year. That length of time is most often determined by how actively the person appointed as executor is in transferring assets from the estate.
Probate is always inexpensive and quick in Texas. This probably isn’t a frequent misconception, but I don’t want you to get the impression that every probate is done within six months. Numerous factors can make even what appears to be a relatively simple estate take quite long to complete. But on average Texas probates get done fairly quickly and inexpensively – at least when compared to many other states.
If I probate an estate, I’ll get an inheritance. This is one of those misconceptions that is best countered with another old saying: “You can’t get blood from a stone.” Whether the estate goes through probate or not, if there are fewer assets than debts, it is likely the beneficiaries will not receive much, if any, inheritance. Sometimes it is obvious that this will be the outcome and the heirs and beneficiaries can decide before starting the process that it is not worthwhile to probate the estate.
The conclusion I would hope you draw from this list is that before you decide upon a course of action when a loved one passes, consult with an estate planning attorney to determine the best course of action. There may be an avenue to obtain your inheritance without probate or the probate process may be necessary, but not the terrible event you anticipated.