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Probate

Smithville, TX |

Would it simplify my wife's life at probate time if I put a few items that are in my name into her name such as 2 vehicles, a motorcycle, the house and take my name off of our checking and savings accounts. (Women mostly outlive their husbands and I have already had a very serious heart attack)

Thank all of you for your previous responses. A bunch of sharp cookies out there.

Ernie

Attorney Answers 2

Posted

Ernie:

You're doing yourself and your family a great service to give these issues some consideration before they become realities. Thankfully, the probate process in Texas is not typically difficult for surviving spouses when even a modest degree of planning is put in place. A well-drafted Last Will and Testament, paired with Powers of Attorney to address any period of incapacity would serve you very well.

Giving assets away during your lifetime is certainly a tried-and-true method of avoiding probate, but it is unlikely that doing so would obviate the necessity of the process. The fact is that it's actually pretty tricky for most folks to die owning nothing. Removing the vehicles and the home from your estate might make things simpler, but dealing with them in probate does not usually add any significant effort or expense. On the other hand, if you deal away those assets now, you lose every ability to direct their disposition in the future, which is something worth considering. You should also consider that probate is not always just about beneficiaries and the transfer of property. A creditor, for example, has the right to initiate probate proceedings.

As for the bank accounts, you might consider looking into the account structure itself. Visit with your financial institution about "payable on death" provisions, which, if properly done, could easily streamline things.

Aside from beneficiary designations on bank accounts, I've not typically encouraged a plan like you're imagining. Other lawyers might disagree, but with some simple and sound estate planning, there isn't much to fear in most Texas probate cases. I'd follow up on the bank accounts, make sure that I've got the basic estate planning I've mentioned in place and leave it at that.

This answer does not constitute legal advice. I am admitted to practice law in the State of Texas only, and make no attempt to opine on matters of law that are not relevant to Texas. This answer is based on general principles of law that may or may not relate to your specific situation, and is for promotional purposes only. You should never rely on this answer alone and nothing in these communications creates an attorney-client relationship.

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One additional point is that if you gift property during your lifetime the donee does not get a step up in basis to date of death value. This may be an important consideration if the home or other assets have a low basis and a high value. You should meet with an estates attorney and the prior attorney has shown a lot of expertise in the numerous answers I have seen posted at this forum. You may be well served to give him a call.

Yikes. If dad had assets in his own name they are controlled by his will and his estate must be probated and such assets will pass in accordance with the will. Mom's estate needs to be probated also for any assets in her name or any assets that were held jointly that become her own assets at dad's death. Get with an estates attorney now. This should have been done in 2010. Your problems cannot be solved without retaining such a lawyer.

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