What Assets Are Subject To Probate?

    In Texas, the only reason most people have to go through probate is that the deceased owned real estate. There are going to be a lot of people involved when the children or beneficiaries of the deceased decide to sell the real estate, such as…

    • Mortgage companies,
    • Banks,
    • Lenders, or
    • Title companies.

    These entities have had a long history of getting burned by people who show up and assert that they are the only living relative of a deceased party and it ended up being a scam. To ensure that they aren’t being scammed, these entities now rely on a court order granting someone full authority to handle all the estate’s assets.

    Once the judge enters an order appointing someone as the executor of an estate where there’s a will, that person then has complete legal authority upon which mortgage companies and other similar entities can rely. At that point, everything that the deceased owned transfers to the beneficiaries, except…

    • Bank accounts,
    • Brokerage accounts,
    • 401Ks,
    • IRAs,
    • Stocks and bonds, and
    • Anything held by a third party.

    These exceptions will transfer to the person previously designated by the TOD or POD, which stands for transfer on death or payable on death. Once the entity sees the death certificate, this transfer occurs. These do not need to go through probate.

    There are ways to avoid probate even when there is real estate involved. One such way would be for all of the heirs to sign affidavits of heirship in the event that the deceased parent didn’t have a will. The heirs are determined by estate law and will not include stepchildren. A title company will usually accept affidavits of heirship from all the heirs to allow them to join together and sell the real estate. This course of action only works if there is no will.

    Other than that, everything that you own – your house, your old worn-out living room suit, your computers, your toys, your cars – is a part of the estate. The executor gains the authority to distribute those items once the court appoints that person.

    Can Some Assets Avoid Probate In Texas?

    Most assets can avoid probate in Texas. However, if you file a probate, those assets are governed by probate. If you file a probate, everything the deceased owned is part of the probate estate. Whatever the deceased owned and whatever they owed to other people immediately become assets or liabilities of their estate.

    In the simplest terms, if you don’t have to file probate, you can sell their old couch, their 50-inch television, their car, and their boat without any type of court order and without the court’s authorization. You can give away all of their silverware and their furniture. You can sell the paintings that are in their house and the gym equipment that’s left in their basement. None of these items require a title, therefore there’s no authority needed to sell or give away those assets to a third party.

    Once you have probate, however, all of these items will fall under that probate, because they are part of the estate. The executor of the estate is then responsible for following the deceased’s will, if there is one. If there is no will, then the court will appoint an administrator to give the assets away as described under Texas law.

    Texas law becomes your will in the absence of your will. Texas has some very strange and unusual ways of dividing your assets up. If you have a stepdaughter, for instance, even if you became their stepmother 50 years ago, that stepdaughter is entitled to nothing under state law because they are not your bloodline and therefore, under Texas law, they are not your heir.

    What If You Have Your Stepchild On Your Will?

    As long as you have a will and that will lists your stepchild as your beneficiary, the executor will have a sworn duty to ensure that whatever your will states is carried out. Having a will is the only way that your stepchildren will be able to inherit any of your assets in the state of Texas.

    If there is no will, the Texas Rules of Descend come into play. This looks at how many people descended from the deceased person and distribution goes only to a person’s direct blood heir. With this rule, someone you’ve loved and raised your whole life would be entitled to nothing if they aren’t a blood heir.

    For more information on Assets Subject To Probate Process In Texas, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (281) 843-9723 today.