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Common Misconceptions About Probate

Common Misconceptions About Probate

When someone dies, their last will and testament must enter probate. A probate judge reviews the will to confirm its validity and authorizes the executor to administer the estate.

The thought of putting your family through probate can be upsetting and stressful. You want your loved ones to receive the assets they deserve without enduring a complicated legal process. However, probate isn’t as scary as it might seem.

Below are the most common misconceptions about probate in Texas.

1. The State Takes Every Possession if There Isn’t a Will

One of the most common misconceptions about probate is where a person’s belongings end up if they die without a valid will. Many think the state will assume ownership of everything, and surviving family will never receive any assets.

However, that’s not true. According to Chapter 201 Subchapter A of the Texas Estates Code, an estate passes to surviving heirs by intestate succession if there isn’t a will. That means your assets will be distributed to your spouse, children, parent, and other individuals in your line of succession.

Intestate succession isn’t a problem for some people. However, if you’re not close to your family or want specific assets to pass to one heir over another, creating a will and naming beneficiaries is crucial.

2. Probate Takes Years to Complete

The probate process can take some time. However, it doesn’t necessarily take years. It might take a while if someone contests the will or files a lawsuit against the executor for misconduct.

The length of probate also depends on the size of the estate. Typically, probate can take about six months or up to a year for the judge to approve the administration of the estate.

3. The Oldest Child Must Be the Executor

Choosing your oldest child as the executor of your estate might make sense. However, it isn’t a law. You can appoint anyone as the executor of your estate if they meet the requirements.

Your executor can be a sibling, parent, friend, or coworker. They must be at least 18 years old and of sound mind. They must also not have a conflict of interest or have been convicted of a state or federal felony.

4. Estate Taxes Will Drain the Estate

Estate taxes are a real thing. Administering an estate requires paying taxes, debts, and other obligations. However, Texas does not impose an estate tax.

The federal estate tax only applies to estates worth over $12,060,000 as of 2022. Starting in 2023, an estate is subject to federal estate taxes if the value is over $12,920,000. Unless your estate exceeds those tax exemptions, you don’t have to worry about your family using most or all of your assets to pay taxes.

5. Avoiding or Minimizing Probate Isn’t Possible

Your entire estate can’t avoid probate. Probate is necessary to validate your will. However, you can set up parts of your estate to avoid probate, so some of your assets transfer automatically upon your death.

How to Avoid Probate in Texas

Common Misconceptions About ProbateMultiple options are available for minimizing probate assets so beneficiaries can receive property without waiting for the court to authorize the distribution. You should consider these options while creating your estate plan to prevent your family from encountering complications:

  • Revocable living trust – A revocable living trust is a type of trust you can control while you’re alive. You can transfer and remove assets, change beneficiaries, and revoke the trust at any point during your lifetime. When you die, the assets held in the trust will pass directly to your named beneficiaries according to the instructions in your trust agreement.
  • Joint ownership with a right of survivorship – Two or more people can own property and establish joint ownership with a right of survivorship. It gives the surviving owner control of the asset upon the other owner’s death.
  • Transfer-on-death (TOD) deed – You can use a TOD deed for real estate, brokerage accounts, motor vehicles, and qualified securities—ownership transfers to your named beneficiary or beneficiaries when you die.
  • Beneficiary designations – You should complete a beneficiary designation form on your financial accounts. Your beneficiary can access the funds after you pass away without going through probate. You can include a beneficiary designation for savings bonds, life insurance policies, securities accounts, retirement plans, and bank accounts.

Get Help with Your Estate Plan

Estate planning is time-consuming. You must complete all necessary documents according to the requirements of state law. Errors can cause significant problems for your family, leading to will contests, creditor claims, and other legal disputes. You can make the process easier for your loved ones by establishing a well-prepared estate plan with an experienced probate lawyer in Dallas, Tx.

The Dallas estate planning attorneys of Staubus and Randall have over 100 years of combined experience in estate planning. We can help protect your assets and your family’s future. Call us at 214-691-3411 to schedule a consultation today.

The Firm

The attorneys at Staubus and Randall have over 100 years of combined experience in estate planning, probate, and litigation. We have the knowledge and skills to tackle complex legal issues, such as guardianships, will contests, fiduciary litigation, and trust litigation. We can also handle routine matters, such as estate administration, probating wills, heirship determinations, and other probate court matters.

Staubus and Randall received a preeminent AV rating from Martindale-Hubbell, which is the highest rating possible from a peer-rated legal service. This rating recognizes our hard work, dedication, and the case results we’re able to achieve.

Staubus & Randall Team

What Our Clients Say

"I recently had the occasion to hire Mr. Staubus for a hotly contested Guardianship matter. Mr. Staubus brought a rare combination of effectiveness, reasonableness and understanding of the human element involved. Mr. Staubus handled all things in a calm, highly competent, effective and reasonable way. It could not have been as easy as he made it seem. He's a credit to the Bar."


"Before retaining the guidance of the Staubus & Randall firm, I was at my wit's end trying to close an uncle's estate as a co-executor. In addition to dealing with difficult heirs, I had other pressing business issues coming up immediately on estate land in the middle of the Eagleford Shale including dealings with pipeline, seismic, oil & gas, and construction companies. The local bank also refused to give me access to information relating to the estate. This quickly became the most stressful and desperate time in my life...and then I found Joseph Legere who truly became my guardian angel. He was able to get all issues resolved efficiently and the estate fully closed. His professionalism, immense legal knowledge on a wide variety of topics, and amazing communication skills took the burdens off of me and quickly got closure. I am forever indebted to this firm for giving me my life back."


"Without exception, the legal service, professional attitude, prompt communication of your firm and your legal knowledge is second to none. I only wish I had an attorney here in Boston that could hold a candle to your experience and expertise. Working with you has been a pleasure, but even more, has made me believe that there are knowledgeable attorneys that do care about doing a good job. Thank you Keith! You may not truly understand how much of an impact you are having on peoples lives, but for me, you have helped change my life. As I begin making my dreams come true I can't help but remember none of this would be possible without you."


"Keith Staubus and Julie Blankenship and their team represented me in a jury trial in the probate court where the ownership of the business which I had worked hard to build was at stake. They successfully fought to preserve my business and my professional reputation, working masterfully to gain the support of the jury. I would not hesitate to hire them again in any bet-the-company litigation.”


"I have required legal representation twice in my life in two separate will contests. Both times I sought assistance from Keith Staubus and Staubus/Randall. Their service, approach, and determination to obtain results exceeded the other attorneys in each case. Mr. Staubus has always come across as genuine while being direct. He gets the process done in a timely manner with results. I will certainly use him again when and if any new challenges arise.”

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