What Exactly Is Estate Planning?
Simply put, estate planning is having a plan for what’s going to happen when you pass away with all of your stuff. Who is going to be in-charge of paying the bills, who is going to be in-charge of making sure that your property goes where you wanted to. In addition to that, estate planning also includes what are we going to do if we’re in a situation where we can’t take care of ourselves. Who is going to take care of us, how are we going to let a court know who we want to be in-charge of our property or who we want to be in-charge of us or who’s going to help make medical decisions for us? Who is going to help us deal with the insurance company and the IRAs, all of those sorts of things. That’s what estate planning is. It’s making sure that you have a plan in place so that you and your property are taken care of.
What Happens If I Die Without An Estate Plan Or A Proper Will In Place?
If a person were to pass away and not have any type of estate plan or will in place, at that point, everything falls on their loved ones. They’re here, they’re trying to deal with the grief of the passing and at the same point in time, they’re trying to figure out what do they have to do. What should they do at that point? They have no guidance and they’ve got no direction. Maybe you’ve talked to them about it, maybe you haven’t, but invariably, son is going to remember things different than daughter does or “I wasn’t there for that conversation but you weren’t. How do I know that that’s being said right?” So it’s up to them to try to figure things out.
If there’s not a will in place, the legislature has designated what will happen with your stuff, where your property will go, who it will go to, and how it will go. A lot of times, that falls contrary to what people want to see happen. So you shouldn’t take that chance and leave it to folks who are drafting the laws to decide what’s going to happen with your property after you have passed away.
What Is Probate?
Probate is the process of going through the court system to make sure that what you wanted to happen does happen. We take your will, we file it, we use the person that you’ve named in your will as executor, the person’s to be in charge. We will get them (the executor) court authority to be in-charge to go start dealing with everybody that needs to be dealt with and to make sure that they’re able to take your assets and your property and get it to the particular loved one, or loved ones, that you wanted it to go to at that point. They wrap up anything that may have been pending at the time that you passed away, hospital bills, insurance, if you were in the middle of the contract, or selling something, they step in and take over that process so that they can make sure that those things happen and probate is making sure that we’re able to get that done.
What Are The Common Misconceptions Surrounding Probate?
I would say there are two very big or very large misconceptions about probate. The first one is that probate is somehow a complicated process in Texas. Texas is actually a very probate-friendly state. A lot of times you can get probate done by simply having one court hearing so that your executor, or the person that you want to be in-charge, gets the authority from the court at the end of the hearing to take care of stuff and a lot of times, that person never has to go see the judge again or go back in front of the court. Everything can be handled at that point forward without having to seek court intervention if you have a proper will in place.
The other misconception is that if there is a will, we have to go to probate. That’s not always the case. There are things that can be done when you’re planning ahead of time so that you can actually avoid probate on some matters in Texas. You can set up bank accounts so that they have a survivorship or a beneficiary designation, you can do the same thing with retirement accounts, and you can do the same thing with life insurance. If properly done you, don’t have to have probate to deal with those things. Texas now allows for what’s called a Transfer on Death deed so we can even transfer interests in real property to somebody as long as we do the deed before you pass away, it’ll transfer at the time that you pass away and we don’t even have to go probate the will at that point.
There are a lot of things that we can do without actually having probate or formal probate and we can still move a lot of assets that way. Those are the two big misconceptions about probate in state of Texas.
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