A Will is a Ticket to Probate
Some people think that if they have a will, their beneficiaries simply inherit under that will without any court intervention. However, a will is only a piece of paper that has no effect whatsoever until a judge in a probate court declares it to be a valid and enforceable will. Then, the person named as the executor must comply with all of the probate court rules before any distribution can be made to the beneficiaries. A will is simply a ticket to probate court. There is a better way. After becoming informed of their options, most of our clients choose to set up an estate plan with a revocable living trust.
What does it take to probate a will?
The first step to probate a will is to hire an attorney to file an application to probate the will. Texas does not allow a person to probate a will without an attorney. The application and the original will is filed in the public court records. Notice that the application and the will has been filed is published at the courthouse. After that notice has been posted at least 10 days, then the applicant can set a hearing for the court to review the application and approve or deny the probate of the will. After the application is approved, the court will issue letters testamentary. Within 30 days of the issuance of letters testamentary, the applicant (through his or her attorney) publishes notice to creditors in a local newspaper. Some other creditors will be specifically notified. There are rules about how to notify beneficiaries and how to deal with creditors. The executor is required to file a public inventory of all assets of the estate or perhaps an affidavit in lieu of the inventory for less complicated estates. Depending on the real and personal property involved, the number of creditors, and any complications regarding beneficiaries, such as minors or disabled beneficiaries or dispute between beneficiaries, the probate process can take anywhere from a few months to several years.
What does a revocable living trust accomplish?
The main goal of a revocable living trust is to avoid probate court. A revocable living trust is not just for rich people. It can be very helpful for more modest estates to avoid having to probate a will.
A revocable living trust is an agreement that is effective outside of court. A properly funded revocable living trust takes the place of a will and provides its own rules on how to distribute property to the beneficiaries. A revocable living trust can be designed to distribute funds outright to beneficiaries or it can be designed to distribute funds in a protected manner to beneficiaries. How your revocable living trust is designed will depend on your particular asset picture and your goals for your estate plan.