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Is probate required for a will in Texas if assets are jointly owned?

Is probate required for a will in Texas if assets are jointly owned?

Q: Are jointly owned assets part of an estate?

No, jointly owned assets with right of survivorship are not considered part of the deceased's estate in Texas. These assets pass directly to the surviving owner upon death, bypassing probate. However, if the assets are held as tenants in common, the deceased's share may be included in the estate and subject to probate.

Q: What is the survivorship rule?

The survivorship rule refers to the legal principle that when one owner of a jointly held asset dies, their share automatically transfers to the surviving owner(s) without going through probate. This rule applies to assets held in joint tenancy with right of survivorship, ensuring a smooth transition of ownership.

Full question:

My father passed away in late January survived by his wife of 60 years. He had a simple will but all assets (house, CDs, mutual funds...) wwere in joint tenure with his wife. Are we required to probate the will in the state of Texas? If not, are there advantages if we probate the will?

Category: Wills and Estates
Subcategory: Probate
Date: 04/07/2025
State: Texas

Answer:

Whether you need to probate the will in Texas depends on how the assets are titled. If the assets are held in joint tenancy with a right of survivorship, they pass directly to the surviving spouse without going through probate. This includes accounts that are transfer on death (TOD) assets. However, if any assets are held as tenants in common, the deceased's share might need to go through probate.

In Texas, if the total value of the estate (excluding homestead and exempt property) is less than $50,000, you can use a small estate affidavit instead of formal probate. This affidavit, once approved by the court, allows you to collect debts owed to the deceased.

Probate has advantages, such as terminating debts and liabilities of the deceased for creditors who do not file claims in time. Additionally, probate courts can resolve disputes regarding the estate and its assets.

This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.

FAQs

Does joint tenancy with right of survivorship override a will?

Yes, joint tenancy with right of survivorship typically overrides a will in Texas. When assets are held in joint tenancy, they automatically pass to the surviving owner upon the death of one owner, regardless of what the will states. This means that the assets do not go through probate and are not distributed according to the will.

What is a joint tenancy with rights of survivorship form?

A joint tenancy with right of survivorship form is a legal document that establishes joint ownership of property between two or more individuals. This form ensures that when one owner passes away, their share automatically transfers to the surviving owner(s) without going through probate. It is commonly used for real estate and bank accounts.

Are jointly owned assets part of an estate?

What are the disadvantages of joint tenancy with right of survivorship?

One disadvantage of joint tenancy with right of survivorship is that it can limit control over the asset. If one owner wants to sell or transfer their share, they may need the consent of the other owner(s). Additionally, if one owner faces legal issues, creditors may claim the jointly owned assets. Lastly, it may not align with the deceased's wishes if they intended for the assets to be distributed differently.

What is the survivorship rule?

What does 'jointly with right of survivorship' mean?

'Jointly with right of survivorship' means that two or more individuals hold ownership of an asset together, and upon the death of one owner, their share automatically passes to the surviving owner(s). This arrangement allows for direct transfer of ownership without the need for probate, ensuring that the surviving owners retain full control of the asset.