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If your loved one died without a Will, transferring his or her assets to beneficiaries can be quite difficult. If no action is taken, assets will not be properly transferred and the beneficiaries will have to take some legal action down the road to straighten out the situation. In some cases, a costly determination of heirship proceeding and dependent administration of the estate may be required. 

There is one probate procedure, however, that is quite simple—if it can be used. The key is meeting Texas statutory requirements for what is called a “Small Estate Affidavit.”

I frequently get calls about setting up a guardianship for a person who cannot manage their own affairs. Unfortunately, the people calling have no idea the expense involved in setting up a guardianship. Guardianships are complicated and time consuming. To put it simply, guardianships are very expensive. There are many steps involved in establishing a guardianship and a great deal of court involvement.

There are two types of guardianship:

• For the person - actual physical and medical care for the person                                                                                  
• For the estate - taking care of all the business affairs of the person

Sometimes, even when a person has drawn up a Will, probate of the Will may not be necessary. Advance planning with probate-alternative documents can avoid the need for probate in many cases.

Some Pre-Death Planning Examples Are:

1. A Transfer on Death Deed or “Lady Bird Deed"
2. Beneficiary Designations on Retirement Accounts, Life Insurance, Brokerage Accounts and The Like
3. A Trust Arrangement

Guardianships are a complicated legal proceeding. Most people have no clue exactly how complicated and expensive they are. In some situations, however, a guardianship is required to manage the affairs of a loved one.

I have addressed in another blog several steps that can be taken as part of the estate planning process that help avoid the need for probate. If those steps were not taken, a full probate still may not be needed.

I am frequently contacted after the passing of a loved one about whether a probate of the loved one's Will is necessary or not. The answer is the standard attorney's reply, "It depends." Sometimes, if your loved one has no assets that are not already disposed of by beneficiary designation or payable on death provisions, there is no need to probate a Will.

This frequently happens if the loved one had already sold the home and was residing in a nursing home, and the only assets he or she still owned were liquid assets. However, if there is real estate still owned by the deceased or oil and gas interests that are not in a trust, some form of probate may be required to transfer the assets. 

In this series of blogs, I am outlining various different types of probates or probate alternatives to settle an estate and their likely costs. As I mentioned in the introduction to this series, the cost is predominantly determined by the type of procedure followed. 

• In Part One, I discussed probate as a muniment of title, which is usually one of the least expensive procedures.
• In Part Two, I discussed the cost of an independent administration of the estate. Both of those procedures require the decedent to have had a Will.
• In Part Three I discussed how if there is no will, the least expensive way to settle the estate through a court proceeding is a small estate affidavit.

One of my biggest pet peeves over the years has been the over-selling of living trust packages to folks doing their estate planning. There are definitely times when a living trust is a good estate planning tool. However, for many individuals a living trust is an unnecessary expense.    

In this series of blogs, I am outlining various different types of probates or probate alternatives to settle an estate and their likely costs. As I mentioned in the introduction to this series, the cost is predominantly determined by the type of procedure followed. 

In Part One, I discussed probate as a muniment of title, which usually is one of the least expensive procedures. In Part Two, I discussed the cost of an independent administration of the estate. Both of those procedures require the decedent to have had a will. If there is no will, the least expensive way to settle the estate through a court proceeding is a small estate affidavit.