Have you considered what will happen to your automobile after your death? In 2019, it is projected that there will be 281.3 million registered vehicles in the United States,. (Texas, with an estimated 24 million, has almost 9%! California is estimated to have about 50% more). Your automobile is a valuable asset — as well as a potential source of liability — that you should consider in your estate plan.

Cars can be owned or leased. The way they are handled after you die depends on these and other circumstances. There are some steps you can take in your estate planning to make sure the transfer occurs smoothly.

Is a Leased Car Part of Your Estate?

If you lease your car, it is not actually part of your estate because you do not own it. A lease is a contractual relationship, so what happens if you pass away will depend upon the terms of the lease. Do not assume that your family either can just return the car to the leasing company with no further obligations or simply continue to drive the car. The terms of car leases vary, so it is important to review the contract carefully.

Leases are often for a certain duration and sometimes specify that they are binding on heirs, successors, and assigns. Also, under the provisions of some leases, if the person who leases a car dies, then an “early termination” of the lease is triggered, but often, there is still a financial obligation to make some or all of the remaining payments. When the lease contains these types of terms, even after your family returns the car to the leasing company, your estate may still have to satisfy the amount of the remaining payments on the lease or pay an early termination fee. There may also be fees for processing paperwork or excessive wear and tear. Under these circumstances, we can help your family determine if your estate is responsible for the remaining payments under the lease, and if so, to try to reach an agreement with the leasing company to satisfy the lease obligations for a reduced amount.

It is possible that the leasing company or the terms of the lease may permit the transfer of the lease to another person in your family. This arrangement may involve transfer fees, but at least your family may have the opportunity to continue using the car for the remaining period of the lease.

Are There Ways to Avoid Probate?

If you do own your car, it may be part of your estate and subject to probate. However, there are some ways you may be able to avoid probate and the costs and delays associated with it.

1. In many states, including Texas, if an automobile is titled only your name, it can be transferred to your beneficiary without having to go through the probate process, which can be lengthy and expensive. The appropriate person, usually a surviving spouse or a child, typically must sign an affidavit before a notary, provide your death certificate, and show identification to the department of motor vehicles, secretary of state, or other government entity. There may be some limitations: In Texas, this simplified procedure is only available if probate is not necessary for any other assets. In addition, although some states allow it regardless of the number or value of your cars, others allow it only if the total value of the vehicles is under a certain dollar amount
2. In some states, if you own a car jointly with another person, then the surviving owner automatically becomes the sole owner if you die, even without any specific language included on the car title. In other states, this is the case only if the joint owners are spouses. In most states, including Texas, you must specify on your title that you and someone else, often your spouse, own the car as joint tenants with right of survivorship. This means that upon your death, ownership vests automatically 100% in your surviving spouse, with no need to probate. Typically, all that your spouse will need to do is go to the department of motor vehicles with the title and the death certificate to obtain a new title in his or her name alone.
   • Caution: If you are considering making someone else a joint owner of your car just to avoid probate, keep in mind that you will be making a permanent gift to that person which could be seized by his or her creditors. Also, if the co-owner’s interest is worth more than the annual gift tax exclusion (currently $15,000), you will have to file a federal gift tax return, although no gift tax will be due unless you exceed the federal gift and estate tax exemption, which for 2019, is $11.4 million for an individual.
3. Several states, including Texas, also offer car owners the opportunity to name a transfer-on-death beneficiary on their registration form that allows the car to be quickly and easily transferred to that person without probate when you pass away. Some states allow this only for cars with one owner, but others allow it for cars with joint owners, in which case, the beneficiary will own the car only after both joint owners have died. The beneficiary does not have any rights while you are still alive, so you can still decide to sell or donate the car prior to your death. (Keep in mind that, if you change your mind about the transfer-on-death beneficiary, you must submit a new beneficiary to the registering authority. You cannot make such a change via your will.)
4. If you have a small estate, you may be able to transfer your car (and any other assets) without a lengthy probate procedure. Most states have probate shortcuts or allow you to avoid probate completely by allowing those who will inherit your property to claim it by filing an affidavit or by using simplified court procedures. The availability of this option and the amount considered a small estate varies depending upon state law.

What Happens If There Is a Car Loan?

If your car is financed by an automobile loan, it is important to let your family members and estate planning attorney know. Whether ownership of your car is transferred with or without probate, it is important to make arrangements to avoid a default if there is a car loan. Otherwise, the lender could repossess the car. The new owner, executor of your estate, or court-appointed administrator will need to quickly contact the loan company after your death to take the necessary steps to continue making the car payments or pay off the remaining debt.

We Can Help

Help lessen the stress on your loved ones by making plans in advance for a smooth transfer of all of your assets, including your automobile. We can help you think through who you would like to receive your car after you pass away and the best way to accomplish the transfer of ownership, as well as draft any documents needed to carry out your wishes. Please contact us to set up a meeting to discuss your options.

Nielsen Law PLLC provides family focused estate planning to individuals and families in Austin, Round Rock, Cedar Park, and the Central Texas area. For more information and to learn about our firm, please contact us.