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What Is the Difference Between Non-Probate and Probate Assets in El Paso, Texas?

— June 2, 2023

A last will and testament can only direct estate owned assets and property.

After the loss of a loved one, the services of an objective legal professional may be beneficial as you try to understand how the estate will be settled to maintain support of the surviving loved ones of the deceased. A Texas estate planning lawyer will file a copy of a will along with a certified copy of the death certificate of the will maker in the appropriate Texas courthouse so the probate action can be initiated. Closing out Texas estates can be time-consuming and dragged out, depending upon the nature of the assets left to distribute and instances of beneficiaries contesting a will, requiring the service of an estate planning lawyer. 

Will administration

A El Paso estate planning lawyer will do their best to effectively and expediently administer the will to save an executor the frustration of holding up payment on bills and costs related to the decedent. These can include paying off creditors, burial costs, and upkeep on property for example, along with fees for professionals who perform services for the benefit of the estate such as appraisals.  

Probate assets

Probate assets are those that do not have a beneficiary designation or assignment and are solely owned by the deceased individual, or jointly owned with someone else. High-value assets that meet these qualifications must go through probate along with anything else that the will instructs to transfer into trust upon their death.  

Non-probate assets

A last will and testament can only direct estate owned assets and property.  Interested parties to a Texas probate action should consult with a tax lawyer about the impacts of non-probate assets that include those assets that have pre-designated beneficiaries, or joint interest with the right of survivorship that pass automatically to the named individual(s) upon a person’s death.  The importance of naming beneficiaries on insurance policies, retirement accounts and deeds to property cannot be minimized.  These predetermined transfers will impact property that  a person owns in common with someone else and may cause beneficiaries to question the value of an estate because of misunderstandings regarding property transferred through the right of survivorships. 

Surviving spouse probate-exempt assets

Image of a funeral ceremony
Image of a funeral ceremony; image courtesy of Rhodi Alers de Lopez via Unsplash,

Spouses and families of the decedent are afforded important property rights under Texas Law.  Specifically, the law provides that certain property be considered exempt property, thereby passing automatically to a surviving spouse regardless of intestate succession laws or the terms and provisions of a will.  The Texas Estates Code, section 353.053, also provides for an allowance in lieu of exempt property, stating: (a) If all or any of the specific articles of exempt property described by Section 353.051(a) are not among the decedent’s effects, the court shall make, in lieu of the articles not among the effects, a reasonable allowance to be paid to the decedent’s surviving spouse and children as provided by Section 353.054. 

Seek legal counsel

The size of an estate, considerations to exempt probate assets, the named beneficiaries and other entanglements surrounding a Last Will  and Testament require the assistance of experienced lawyers who understand the state and federal laws that will impact its administration.  



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