Myths About Wills and Probate: A Cypress Estate Lawyer Explains What You Need to Know

As a Cypress estate lawyer, one of the most common misconceptions I hear from clients is that having a will means their loved ones can avoid probate. Unfortunately, this isn’t the case. Unlike some states, Texas does not allow informal probate. That means in Texas, a Will is just a piece of paper – until it is accepted into probate!

Let’s dive into why wills and probate go hand in hand, and what this means for your estate planning.

 

Think of Your Will as a Letter to the Court

Imagine your will as a detailed letter to the probate court. While it clearly expresses your wishes, the court still needs to “open” this letter and officially validate its contents before your assets can be distributed. This is what we call the probate process.

 

Why Probate Still Happens With a Will

Even with a will in place, probate serves several crucial purposes:

  • Validates that your will is genuine and was created under proper circumstances
  • Provides a supervised process for transferring assets to beneficiaries
  • Gives creditors a chance to make legitimate claims
  • Creates a public record of asset transfers

 

Ways to Actually Avoid Probate

As a Cypress estate lawyer, I often recommend several strategies that can help assets bypass probate altogether if this is one of your goals:

  • Living Trusts: A living trust can hold your assets and transfer them directly to beneficiaries without court involvement.
  • Beneficiary Designations and Transfer on Death Deeds: Life insurance policies, retirement accounts, and transfer-on-death accounts can pass directly to named beneficiaries.
  • Joint Ownership with Right of Survivorship: When property is owned jointly with rights of survivorship, it automatically passes to the surviving owner without probate. However, this strategy should be used with caution.

Why You Still Need a Will

Even if you use other methods to avoid probate, having a will is crucial because it ensures YOUR choices are followed, not the state’s default plan. If there is ANY property remaining in your estate after you die, a Will is necessary to determine who will receive it. And this happens far more often than you think!

Without a will, state law determines who inherits your assets through a one-size-fits-all approach that may not align with your wishes. A will puts you in control of these important decisions about your legacy.

For instance, in Texas, if you’re married with children from a previous relationship, your children may receive all, or at least a significant portion of your estate while your spouse is left with virtually nothing from your estate. Through a will, you can override these default rules to ensure your assets go exactly where you want them to go. You can choose who inherits your property, designate an executor you trust, and make your wishes clear rather than leaving these crucial decisions to state law.

The Bottom Line

While a will alone doesn’t avoid probate, it remains an essential part of your estate plan. Working with an experienced estate planning attorney can help you understand which combination of tools – wills, trusts, beneficiary designations, or other methods – best fits your situation.

Ready to create an estate plan that truly protects your loved ones? Contact our office to schedule a consultation to help navigate these important decisions.