If you and your spouse are attempting to get your estate planning and finances under control then I gave you a great deal of credit. There is nothing more difficult than facing down do your fears and concerns regarding the possibility of either you or your spouse passing away unexpectedly. To compound the sadness that will be associated with one of you passing away by not having a will in place or other estate planning measures would be a huge mistake for your family. In a time like the one that your family would go through in the event, you were to pass away the last thing any of you would want to do is spend those opportunities degree with family instead of having to worry about your finances or who gets what now that one of you has passed away.

One of the great parts about being an estate planning attorney is the opportunity to help the people in our community better prepare for life if an unexpected death occurs or just to prepare for the end-of-life circumstances in general. Without trying to get too morbid every one of us is going to pass away at some point. What we do to plan for that eventuality between now and then is what needs to be our focus in circumstances like this. Estate planning attorneys are in a position to be able to speak into a client’s life, such as your own, to help identify areas that may need some work and to help get you and your family to where you need to be. Again, you want to focus at the end of someone’s life to be on that person and what they meant to you and not on any financial concerns regarding their passing.

Can you do anything to the ownership status of your property to avoid probate when you or your spouse die?

The probate process involves your loved one either probating your state or your will after you pass away or vice versa. As with anything involving the courts going to the probate process means that you will spend some time, money, and energy on having to get court approval to do something rather mundane in your daily life. Those mundane steps may include paying out money to your loved ones, changing the title to a vehicle, or even selling a home. Even though these are all pretty run-of-the-mill activities the reality is that going to the courts in the probate process may be necessary depending upon your family’s status.

Essentially, you can think about the word probate as meaning the same thing as transfer of title. There are lots of different ways that property can be owned so that property will automatically transfer to your family member or spouse when you die. This is true even without having to go through probate first period in Texas there are two different kinds of property. The first is personal property. We think of personal property like items such as your furniture, clothes, vehicle, or even an investment account. On the other hand, real property includes your home, investment properties, or things of that nature. 

Furthermore, anyone who has gone through a divorce can tell you that there are two different kinds of property in Texas. The first is separate property. Separate property is any property that is owned by did you or your spouse before getting married. Even during your marriage, a gift or inheritance to you or your spouse separately would be classified as separate property. On the other hand, Community property would be any property that is acquired during her marriage period, for instance, money from your job would be classified as Community property even if it went into a bank account separate from any that your spouse has access to. In a divorce or end-of-life situation, all property is presumed to be community-owned. Additional evidence would need to come forward to provide proof that property is it’s separately owned rather than the community in nature.

all of the above-mentioned types of property combined go into creating your estate. Any property in your community estate is owned equally both by you and your spouse. Your spouse owns 1/2 of the community estate and you own 1/2 of the community estate. When either you or your spouse pass away only one half of the community estate can be given away since the other half is still owned by whichever one of you or your spouse is still living. It is also possible that the spouse who passes away also has a separate estate in addition to their 1/2 share of the community estate. The separatist state would then have to be distributed to your children or other beneficiaries.

In conclusion, you or your spouse can still own separate property despite being married. Technically speaking a single person’s property would all be classified as separate property. However, any of that separate property owned before your marriage would still be classified as separate property even after you become husband and wife. even property that is obtained during the marriage either by gift or inheritance would still be classified as separate property.

What happens if you or your spouse pass away without a will? 

If you or your spouse passed away without a will then the state of Texas will determine how your property is to be divided by following state law on this subject. The legal terminology used to describe a person who dives is a decedent. When you or your spouse die then the surviving spouse would stand to be the primary person who receives property out of a will or intestate distribution. Dying intestate refers to passing away without a will.

Let’s assume a situation where your spouse passes away without a will. The law in Texas says that their Community property would go to you if you all have no other children or descendants. In the alternative, even if you do have children if all of your spouse’s children are also your children then all of their Community property would still go to you. Finally, if your spouse had children with more than one person then you would keep your 1/2 share the community estate of your spouse, and then the other children would get the other half share.

What happens if you or your spouse pass away with a will?

Assuming that the will in place is declared valid by the probate court, it is that document that will control how your loved one’s estate is handled after he or she passes away. The trouble is that to change the title to some types of property they will be admitted into the probate process. You would need to apply to admit their world of probate with the probate court in the county where your spouse lived or passed away. The first step in the process would be the court would need to look at the will and determine whether or not it is valid. If this is the process you expect to go through then I would recommend going to the county clerk’s website to verify the costs of applying with the probate court. 

Many people are surprised to learn that most probate courts will not allow you to proceed to file this application without the assistance of an attorney. Without a doubt, hiring an attorney will increase the costs of probating a will. However, an attorney can help you avoid mistakes and speed up the process by filing paperwork on time and proceeding along the timeline of the court. Also, I have worked with many people who have attempted to save time and money for their families by attempting to maneuver property or around in such a way that makes it unnecessary to go to probate the will. An example of this would be owning your home under a right of survivorship where the property would automatically go to the spouse that survives.

What is a transfer on a death deed?

A relatively new development over the past few years is the allowance of a transfer on death deed to help and donors avoid having their family need to go through probate after their death to transfer property. Specifically, the transfer on death deed would allow your spouse to name and a beneficiary who will receive any property described in the deed after your spouse has passed away. Keep in mind that the transfer on death deed must be recorded with the deed records in their home county before your spouse passing away. 

As long as you are living then you can continue to live in your home after a transfer on death deed is executed. For example, your spouse could continue to live in the home even after the transfer on death deed is executed. Your spouse would still be the full owner of the home which means that you all would still need to pay taxes and maintain the home. Nothing is stopping you from selling the house, either. However, keep in mind that if the home is sold then whoever is listed as the beneficiary in the transfer on death deed would receive nothing at the time of your spouse’s death.

An important thing to keep in mind is that the transfer on the death deed will trump your will. for example, if your will states that you are vacation home goes to your daughter and the transfer of death deed names your nephew as a beneficiary in the lake home then your lake home will go to your nephew regardless of which one of the documents came into being the first period you would then be able to transfer title to the lake home without having to go through probate first period any property that is classified as real estate regardless of whether or not it has a mortgage can be transferred at the death when you or your spouse draft and record a properly executed transfer on death deed. 

How do pre-marital agreements work in this setting?

If you are planning on getting married and have prepared a prenuptial agreement that says that certain property will remain your separately owned property even after you get married then you have created a prenuptial or premarital agreement. Unless they will states that someone else will get that property upon your passing and the property mentioned in your prenuptial agreement will not go to your surviving spouse.

What is a joint tenancy? 

When more than one person owns a specific piece of property, that is a joint tenancy. Both personal property and real property can be owned in a joint tenancy although you hear about joint tenancies much more frequently regarding real property. You and your spouse can own property as joint tenants or as joint tenants with the right of survivorship. In a joint tenancy, if your spots were to die then their share of the property would pass to their heirs or two any person named in their will. In a joint tenancy with the right of survivorship when your spouse would die their share would go directly to you. These agreements are created in writing.

If your spouse had children who were not also your children then their half of the Community property does not automatically go to you when your spouse passes away under a writer survivorship situation. The law in Texas says that you and your spouse can agree in writing that all or part of your Community property will go to the surviving spouse when one of you dies. This is called a right of survivorship agreement. If you and your spouse had come to an agreement like this you would need to file it with the county court where you all live.

The beauty of this type of agreement is that it is a way that you and your spouse can ensure that all Community property contained in the agreement automatically goes to the other spouse without having to first go through probate. Bear in mind that this type of agreement is only important or necessary if you and your spouse have children from outside of the marriage. If you all have no children from outside of your marriage then this type of agreement would not be necessary.

Bank accounts

In terms of jointly held bank accounts, there are two types. If all the parties to a jointly held bank account or living and it is set up under either your name or another person’s name then either of you can take money out of the account without getting permission from the other person. However, if the account is set up under both of your names then one person would need the permission of the other to access the money. In most marriages, jointly held bank accounts between you and your spouse would not require the permission of the other to obtain money.

One of the questions that estate planning attorneys frequently receive is regarding the benefits of a payable on death account. In terms of owning financial accounts, this is another method for you to do so. A payable on death account automatically passes to your spouse or another person upon your death. And can bypass probate. Payable on death accounts is not jointly held accounts because while you are alive you are the only owner of the account. However, after you pass away then the person you designate as the owner of the account slides into that position. Payable on death accounts are fairly easy to set up and only require you to contact your financial institution or bank to do so.

Life estates in real property

The last subject that I wanted to discuss with you again today is R life estates in real property. A life estate provides you or your spouse with the right to live on or use the property during the owner’s lifetime or until their death. Under these circumstances, someone else is the owner of the property. You or your spouse would only have an ownership interest in the property as long as either of you is still alive. Many people use life estates to avoid probate. For instance, you could create a life estate and your spouse upon your death where he or she could use the property as long as he or she were alive. In your will, however, you would simply need to state that the property would then go to your children or whomever you desire to be the beneficiary. 

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed estate planning attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of estate planning but also learn more about how your family circumstances are may be impacted by the filing of a probate or estate planning case.