San Antonio Probate
Common Misconceptions about Probating a Will
“Probate” is one of those legal words surrounded by mystery; all most people know is that probate is something we all want to avoid. As the probate attorneys at the Duke Firm, PC, in San Antonio, Texas, explain, probate is nothing more than the legal process of proving that a will is valid and distributing the estate of the person who died (the decedent) in accordance with that will. There are, in fact, various ways to avoid probate.
The only property that has to pass through probate is the property that does not pass automatically to someone else. Probate can be avoided either by removing property from your estate before you die or by transferring property by operation of law when you die. You can give it away while you are alive to people who would be your heirs. You can put it in one or more trusts. By placing assets in a trust, you have removed them from your estate, and they are not part of your estate for probate purposes. Some property that passes by operation of law, such as real estate held jointly, will also not be part of your estate for probate purposes.
Another common misconception about probate is that the process is long, time-consuming, and expensive, and therefore it is not worth making a will for a “small” estate. Texas today has an efficient, streamlined probate system, and with proper estate planning, the probate process can work efficiently and smoothly, without substantial costs to the estate. Obviously, the more work that has been done before a will is admitted to probate, the easier the process will be. A self-proving will, for example, is a will to which there is an affidavit attached, signed by the person making the will and the two witnesses to the will. The affidavit is used to prove that the execution of the will was proper and eliminates the need to have the witnesses testify in court.
