How to Avoid Probate When Transferring Real Estate to Heirs

 Posted on March 15, 2023 in Estate Planning and Probate

Probate is the process of confirming that a deceased person’s assets are distributed correctly. If the person had a valid estate plan, the assets are distributed according to that plan. If the person did not have a will or any other estate planning documents addressing asset distribution, the assets are distributed according to Texas's intestate succession laws.

With regard to real estate, the process of passing a home down to heirs varies in complexity. There are several estate planning options available that greatly reduce or eliminate the role of probate in a transfer of real estate property. However, if an individual passes away without setting up estate planning instruments designed to avoid probate, the process is much more complicated.

Options for Avoiding Probate when Transferring a Home, Rental Property, or Vacation Home

A person’s home is often one of the most valuable assets they own. If you intend to transfer your home or another real estate property to your loved ones upon your death, make sure you understand the various ways of doing so. You can save your surviving loved ones substantial time and expense by designing your estate plans in a way that avoids probate for real estate assets.

• Joint Tenancy – Joint tenancy is an arrangement in which two or more individuals own a property together. When you establish someone as a joint tenant on your home’s deed, you create a right of survivorship. This means that when you pass away, the other tenant(s) automatically assume ownership of the home. The home does not have to go through probate. Many people establish joint tenancy with their spouses, however, you can choose anyone to be a joint tenant.

• Transfer on Death Deed (TOD) – A TOD allows you to keep ownership rights to your home during your life and then transfer the property upon your death. The property is transferred to beneficiaries without going through probate. A TOD may be used to transfer real estate as well as land, buildings, and other types of real property.

• Trust -  A trust is a separate entity that holds assets for the benefit of beneficiaries. Putting a home and other real estate properties into a trust is a popular choice for individuals who want to avoid probate and make the process of transferring real estate easier. There are different types of trusts, each with certain advantages and disadvantages.  For example, a revocable living trust allows you to maintain control of the trust assets during your lifetime but it does not offer as much protection from creditors as an irrevocable trust does. Your estate planning lawyer can help you determine what type of trust is best for your situation.

Contact a Bexar County Estate Planning Attorney

Careful estate planning allows your surviving loved ones to avoid the probate process and receive assets such as real estate with frustration and complication. Our experienced San Antonio estate planning lawyer can sit down with you and address all of your estate planning needs. Call 210-535-0870 for a free initial consultation.

Sources:

https://www.investopedia.com/articles/pf/06/revocablelivingtrust.asp

https://www.investopedia.com/terms/t/transferondeath.asp