Our firm mission is to take the fear and unpredictability out of probate, and the other services we provide.  Despite our best efforts, the word “probate” works as a bogeyman that causes some to shake with irrational fear.  The concern is that probate will significantly deplete an estate, usually by increased legal fees.

First, here are some basic facts about probate in Texas:

  • our probate laws are good and the processes are streamlined
  • the estate is not taxed by the State of Texas
  • legal fees are not based on the size of the estate.

A popular erroneous belief is that having fewer assets “go through probate” is preferable and will save money.  Since probate is the process of recognizing the validity of a Last Will and Testament or determining the heirs of the estate, the process is not focused on the size of the estate.  The cost and processes to eventually appoint an administrator or executor are not driven by the number of assets or the kind of assets or the value of the assets.  Therefore, a piecemeal attempt to avoid probate will not lead to saving money.

What are the major factors that cause probate to be more expensive in some estates than others?

  1. NO WILL. There is nothing more likely to increase costs or increase controversy than the lack of a will.  The areas of dispute multiply since the decedent has not designated how their assets are to be divided, has not named an administrator or executor, and their wishes for their assets are not enforceable.
  2. POORLY DRAFTED WILL. A cheap will is usually a recipe for disaster.  Even if the will is executed correctly, someone who used a will kit or an online form without the advice of an attorney did not know the appropriate clauses to add or delete from a will document to best serve that person’s estate.  Almost as bad are wills drafted by attorneys who normally do not do estate planning.  It is an unfortunate fact that lawyers are licensed to practice any type of law, and if you ask a lawyer friend to draft a will for you, their reaction might very well be, “Sure.  How hard could it be?”  What often will be generated is a thoughtless, poorly drafted will that does not solve the problems of the estate because the right questions weren’t asked and the right advice was not given.
  3. REAL PROPERTY IN MULTIPLE STATES. Real estate investors and oil and gas mineral interest owners  may need  separate probate proceedings in each state where they own property.  Although Texas probate laws are streamlined, that is not true for most states.  A simple will for someone who owns real estate in multiple states or has extensive mineral holdings is probably not cost efficient.  In those cases, we highly recommend revocable living trusts.

What drives up the cost of probate proceedings is a lack of effective planning not the size of the estate.  Disputes arise, and costs increase, when thoughtful planning is not pursued.

This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, specific tax, legal or accounting advice. We can only give specific advice upon consulting directly with you and reviewing your exact situation.