5 Myths About Probate In Texas

Jun 29, 2023

Probate is a Texas court process that many people have never heard of or thought about until they lose someone close to them. That’s because probate is a series of legal steps that officially transfers a deceased person’s assets to their beneficiaries; the average person probably wouldn’t have any interaction with it unless they are mourning the recent loss of a family member. When a grieving family starts to sort out the affairs of their loved one, that’s when they normally find out about probate. 

Probate can be extremely confusing because it’s so unfamiliar. There’s lots of conflicting information online, and there are things you may have heard from friends or other family members that may not be true regarding what the process entails and what is required of you. 

As a probate lawyer in Texas with over 20 years of experience in probate law, we’ve encountered many of the misconceptions surrounding probate. Here are 5 myths about probate in Texas and what you really need to know in order to keep the ordeal as smooth, quick, and cost-effective as possible! 

Myth #1 – Making A Will Can Prevent Probate. 

One of the biggest things that the general public believes about probate is that a will is all you need to have before you die if you want to make things easy on your family. FALSE! A will is a good thing to have, for sure, because it lays out your wishes in writing so your family can know what they are and makes them legally valid. However, under Texas law (and in most states), wills have to be probated. They have to be submitted to a court, along with a death certificate, before anyone can give anyone anything according to the will’s instructions. 

If you have a will, and that’s the only legal document you have, your estate will still have to go through probate; if a family member died and a will was all they had, their estate will still have to go through probate.

Myth #2 – Only Rich People Have To Worry About A Complex Probate Process.

You may have heard that the probate process is no big deal for the average Joe – that it only really gets messy and complicated when there are multiple homes and hundreds of thousands of dollars involved. That’s not necessarily true, though there is merit to the fact that probate can be simpler when there are less assets involved because there won’t be as many tax issues (only big estates of over $12 million are subject to an estate tax). 

However, even “small” estates still have to go through probate. There are a lot of steps involved and there’s a lot of paperwork involved; it’s not a walk in the park regardless. There is also still the possibility of family conflict, and there is an even greater chance that creditors will make claims on a small estate because the deceased person may owe many outstanding debts. This can lead to lawsuits, which can increase the expenses and the time involved in completing probate. 

Myth #3 – There Are Many Ways To Skip Probate In Texas.

There are actually only two ways to skip probate in Texas. It’s fairly inevitable! 

The first way is to have a trust, but that must be created before death. If you’re facing probate after a loved one’s passing, and they didn’t have a trust, this shortcut is obviously not going to apply to you (though it can be a good prompt for you to make a trust now so your family doesn’t have to go through the same thing in the future!). 

The second way is to make something known as a small estate affidavit. Only certain estates can qualify for this probate shortcut. The estate can’t exceed $75,000 (excluding exempt property). There also can’t be a will; if your loved one left behind a will, a small estate affidavit isn’t an option. If the estate does qualify, all of the beneficiaries sign the affidavit and can take it to any party holding assets – such as a bank – to make them release them to the heirs.

Myth #4 – Everything Has To Go Through Probate. 

This is something that many people despair over, but it can actually be a pleasant thing to find out about probate – while probate is inevitable, not all of your deceased loved one’s assets have to be held up in probate before you can access them.

Any assets owned jointly can transfer directly to the surviving owner, without probate. Bank accounts, stocks and bonds, vehicles, and even real estate that have payable on death/transfer on death deeds or registrations or designations can also pass directly to the named beneficiaries without first having to go through probate. 

Myth #5 – It’s Cheaper To Handle Probate On Your Own Rather Than Hiring An Attorney To Help. 

Probate is expensive, and funerals are expensive. Many people think that the goal should be minimizing expenses as much as possible, and because they may be unfamiliar with the probate process, they may not realize just how legally complex it can be or how much of their time it will take. Attorney fees can seem daunting, but probate lawyers do this literally for a living. They have handled hundreds of these cases, and they can take care of everything for you so you can just relax and focus on moving forward with your life after loss. Because they have such expansive legal knowledge, they can impart ways to save money during the process, and they will make sure you don’t miss deadlines or make mistakes that could incur additional court fees. If a family or creditor conflict arises, they can represent you and work to resolve the matter before it needs to go to court, which can save you tens of thousands of dollars in litigation costs. 

Texas probate lawyer Michelle E. Murphy can explain how her services can maximize the inheritance you’ll receive from your loved one after probate is complete. Schedule a free consultation with her today to learn more!