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Jeffrey W. Burnett, PLLC - Attorneys
We handle business, finance and real estate transactions, and probate and estate planning matters.
Transfer On Death Deed![]()
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You do not need a trust to avoid probate with respect to your Texas real estate! While a trust can be a great estate planning tool in certain circumstances, the time and expense involved with setting up and maintaining a trust can be avoided if the only assets to be placed in the trust consist of Texas real estate.![]()
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Allow me to introduce to you the “Transfer On Death Deed”. This deed is a creature of 2015 legislation, and despite being around for almost a decade, many individuals are still unaware of this deed and how it works.![]()
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Simply put, this deed is executed and filed in much the same way as any other deed, except that it contains magic language rendering the deed dormant and revocable until the moment of your death. After death, the designated “beneficiary” in the deed need only file a short affidavit proving death in the real property records, and Presto!—title transfers to the beneficiary without the need for probate.![]()
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Because you only get to die once, it is important that you get this deed (and other estate planning documents) done right the first time, and properly prepared by a licensed attorney!![]()
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~ Scott R. Hively
That Pesky Little Stock Certificate![]()
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Often, clients begin a consultation with “I want a Trust.” Perhaps a Google search, Youtube video, or suggestions from a well-meaning friend has led the client to believe that they can bypass probate by setting up a Trust—and therefore can dispense with the time and expense of creating a Will, and the eventual probate. Although it is true that assets placed in Trust can bypass probate, it is not quite so simple.![]()
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The first thing to be aware of is the fact that the cost, time, and effort involved in setting up a Trust is roughly the same as a probate—so you would effectively be doing all of the probate footwork up front anyway! Right off the bat, therefore, the primary perceived advantage of a Trust is negated. And to pour salt in the wound, a probate may still turn out to be necessary.![]()
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The problem with a Trust (in lieu of a Will) is that the Trust only governs assets properly placed in Trust. Therefore, if anything less than 100% of all property you own is placed in the Trust, a probate may still be necessary to transfer that asset after your death (and if there is no Will, you may not like the result!). Consider the following story of a client with a fictitious name:![]()
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John and Jane Doe passionately wanted to avoid probate—believing it was a scam to enrich the lawyers! John and Jane, therefore, refused to create Wills and instead demanded that a Trust be set up for them instead. John and Jane then proceeded to place their entire estate into the Trust. Some time later, Jane dies. John says “There’s no way I’m going to waste any money on probate.” Fast forward about 6 months, and John walks into the office, obviously not happy, with a stock certificate in his Wife’s name. Guess what? A full probate is now required to transfer the stock ownership out of the Wife’s name—not one penny of probate was saved. To add insult to injury, because there was no Will, the probate will be almost twice as expensive, take longer, and involve a court-appointed attorney ad litem (at John’s cost) to sort out the heirship situation (which, depending on the family facts, may or may not result in John being the sole heir). John’s decision backfired severely, as he clearly would have been better off if he and his wife had simply opted for Wills instead of solely a Trust.![]()
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Unlike a Trust, a Will is the only document (at least in Texas) that effectively reaches out to the world and ensures that every asset you own will pass according to your wishes. For this reason, those with Trusts often use their Will as a “Pour Over” will—to serve as a safety net to catch all assets that slip through the cracks and “pour over” such assets into the Trust. However, this still requires both a Will and probate!![]()
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A Trust certainly has its virtues and can serve an important purpose in combination with a Will as part of your overall estate planning, but it should not serve as a substitute for a Will—lest you or your heirs should stumble upon a pesky little stock certificate after death. ![]()
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Scott R. Hively, Associate Attorney
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