My Will or Trust is Signed, No Probate for My Family, Right? From Austin Estate Planning Lawyer Liz Nielsen


Planning ahead has obvious benefits. Whether you’re planning a vacation or researching for a job interview, it’s always smart to outline your priorities and anticipate potential challenges that may arise. Planning your estate has similar benefits. With plans clearly established, your wealth and assets are protected should you pass away or become incapacitated. It’s important to be aware, however, that simply meeting with an attorney and signing a trust does not mean your estate planning process is complete. Without properly funding your trust, your assets could still be forced through the probate process.

Understanding the Probate Process

While the term seems scary, probate is a relatively simple concept: it’s a legal procedure that transfers assets from the deceased to their heirs or beneficiaries. When a will doesn’t exist or does not clearly outline a person’s plans for their estate after their passing, a judge will need to give legal permission for their assets to be passed on to their heirs. If a will does exist, the court is involved to ensure the Executor administers and distributes the estate according to the terms of the will. This process, called probate, is more common than you might expect. Not only does the probate process require a court appearance, it can also be a public, time consuming, and expensive process

Not every asset goes through the probate process. Anything owned solely by the deceased, like a home or vehicle, will be subject to probate. Any asset that is held in joint tenancy or has a beneficiary designation will transfer to the named individual automatically upon your death. Property held in a living trust is also exempt from the probate process because the assets are deemed to be owned by the trust, not you.

Avoiding Probate

Probating a will can be stressful. In the days and weeks following the loss of a loved one, the last thing family members want is to have their accounts frozen or to go to court. Since probate is a matter of public record, there is a lack of privacy to consider. While Texas has relatively streamlined probate procedures, it is still something that many people would like to avoid if possible.

One of the most common ways to avoid probate is to use a revocable living trust to protect your assets. In order for the trust to keep your assets out of probate, the assets have to be funded into the trust while you are alive. Failure to complete this step will lead your family to probate court. However, if you have successfully funded your trust, your assets will be administered as you have directed in your trust once you pass away, without court involvement. The result is the transfer of your assets easily, timely, and privately.

If you have questions about funding your trust, please give us a call. We can review your assets and ensure that everything is in place so your family can have a smooth administration, without court involvement. When it comes to the future, leave nothing to chance.

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.