The effort you put into estate planning reflects your commitment to your loved ones. A few of the primary reasons to pay careful attention are ensuring that your wishes are upheld and avoiding the probate process to the greatest extent possible when the time comes.
Probate refers to the state’s administrative resolution of your estate. There are common problems that an experienced Temple probate attorney can help you avoid—affording you the peace of mind you deserve.
Your Will
The first estate planning tool most people consider is their last will and testament. This is a solid tool for addressing matters like:
Naming an executor to administer your estate upon your passing
Determining how non-beneficiary or non-payable-on-death assets will be distributed
Naming a guardian for your minor children
Outlining your preferences for end-of-life care
Specifying your funeral and burial preferences
When an individual dies without a will, they are said to have died intestate. In situations like this, Texas’s laws of intestacy – or laws of inheritance – guide how the decedent’s estate will be distributed among their heirs. Because the decedent didn’t have a will in place, their assets will pass according to the state’s hierarchy of heirs rather than according to the decedent’s wishes.
While wills do go through the probate process, the decedent’s instructions are ultimately upheld – as long as the will is legally valid – as verified by the probate court. In other words, not having a will in place makes the probate process more cumbersome.
Additional Estate Planning Tools
There are a range of estate planning tools – in addition to your will – that can make a serious difference in how effectively and efficiently your estate will pass to your family members and those you care about at the time of your death.
Beneficiary-Based Tools
Many financial tools, such as life insurance policies and stocks and bonds, allow you to assign beneficiaries. This means that the accounts will ultimately pass to the people you name as beneficiaries, and it happens outside of the probate process.
Although there is some administrative effort involved, beneficiary-based financial tools are far less time-consuming and far more direct than the formal probate process. Transfer-on-death deeds operate in a similar manner.
Trusts are another important estate planning device, and they represent a legal arrangement in which you – as the grantor – transfer assets into the trust or trusts you create and allow a trustee to manage them on behalf of the beneficiaries you’ve named.
With a revocable living trust, you can alter or even revoke the trust at any time and can remain the trustee – who retains control over the assets – until the time of your death when the trust will become irrevocable and a successor trustee will take over managing the financial instrument.
The assets included in trusts aren’t subject to the formal probate process. This means that trusts can help speed things along for your beneficiaries, that the cost of transferring your assets to your heirs will be lessened, and that tax liability regarding your estate will potentially be reduced.
There is a wide range of trusts available, including specialized trusts for charitable giving and supporting dependents with special needs.
Powers of Attorney
When you grant someone whom you trust power of attorney (POA), you assign them specific responsibilities that are related to decision-making on your behalf – in the event you become incapacitated and can no longer do so.
You can assign a financial power of attorney to someone who will make important financial decisions for you – in accordance with your best interests – if you’re no longer able to.
You can also assign a financial POA to stand in for you on a temporary basis, such as if you are out of town and need someone with the authority to sign documents or to make financial decisions in your absence.
Assigning a medical power of attorney is another primary option—a medical POA designates who should make healthcare decisions for you in the event you can’t.
The bottom line when it comes to powers of attorney is choosing someone who knows you well, who appreciates your priorities, and whom you trust to carry out your preferences under challenging circumstances.
When a Will Is Contested
Creating a valid, well-thought-out will can provide security, but keep in mind that wills can be contested. Only individuals with legal standing—such as heirs, creditors, or concerned parties on behalf of minors—can challenge a will.
Common grounds for contesting a will include:
Improper execution under Texas law
Lack of testamentary capacity
Undue influence (coercion or manipulation)
If you believe a will that affects you may be invalid, consult an experienced probate attorney for guidance.
Minimizing Your Need for Probate
Having a well-considered estate plan that takes your unique needs and preferences into careful consideration helps to ensure that you’ll minimize the downside of probate.
To begin with, the probate process tends to take a considerable amount of time, and a range of complications can arise, including having the will—if there is one—contested. Probate also involves significant expenses and fees.
The Cost of Publication Requirements
In Texas, probate cases have publication requirements. These refer to the expense of announcing the case in local news outlets and notifying the testator’s creditors as well as potential claimants.
Appraisal Fees
Asset valuations are often necessary, and appraisal fees vary depending on the complexity of the estate.
Accounting Costs
Probate can involve complex accounting, especially in large estates, and often requires professional services.
Litigation Expenses
If disputes arise or the will is contested, litigation costs can quickly escalate. These costs typically come out of the estate itself, reducing what beneficiaries receive.
The 5 Most Common Probate Errors and How to Avoid Them
Knowing these common mistakes can help you avoid unnecessary costs and complications. Your best protection is working with a skilled probate attorney from the outset.
One: Failing to Create a Solid Will
In Texas, a will can be contested for up to two years after it enters probate. A clearly written, properly executed will is much harder to challenge. Take the time to make your will legally sound to spare your loved ones additional stress.
Two: Bequeathing Items to Joint Heirs
Leaving a single asset to multiple heirs can lead to disputes. This is especially true for real estate. Be specific about ownership percentages or create a plan for how the asset will be divided.
Three: Not Addressing International Assets
If you own property abroad or have heirs in other countries, complexities increase. Some foreign jurisdictions impose estate taxes, and double taxation is a risk. Plan ahead with the help of an attorney familiar with international estate issues.
Four: Not Matching Your Will to Your Assets
If your will doesn’t accurately reflect your current assets, it can slow down probate. Ensure that your will clearly identifies each asset and how it should be located or transferred.
Five: Relying Solely on Your Will
Using only a will for estate planning can be limiting. Trusts and beneficiary-based tools often bypass probate entirely, reducing legal challenges and delays. Still, a will remains crucial for covering newly acquired assets and naming an executor or guardian.
It’s not realistic to address your assets on a constant basis, however, and the moment of your death can’t be predicted. As such, your will is in place to effectively address every asset that you’ve acquired since your last estate-planning update, which makes it an excellent means of maintaining a comprehensive estate plan.
Your will is also your opportunity to name an executor whom you trust to manage the probate process when the time comes and to address other serious matters such as guardianship of any minor children.
Speak with a Dedicated Temple Probate Attorney
Brett Pritchard at the Law Office of Brett H. Pritchard is a seasoned Temple probate attorney who helps clients create secure, efficient estate plans. Learn more by contacting us online or calling us at 254-781-4222 and scheduling a FREE consultation today.