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Ways to Avoid Probate

This article provides information on how to avoid probate court. This material is excerpted from a 2016 article by Judon Fambrough of the Real Estate Center at Texas A&M University.

Community Property Survivorship Agreements

According to Six Ways to Avoid Probate by Judon Fambrough (2016), one technique for avoiding probate "is a statutory procedure created in Texas on Nov. 3, 1987, with the passage of an amendment to the Texas Constitution (Article 16, Section 15). The amendment permits spouses to agree in writing that all or a part of their community property belongs to the survivor when the first spouse dies. If implemented, the property then passes automatically without the need of probate when the first spouse dies. Section 112.052 of the Texas Estates Code contains the requirements for creating the right of survivorship in community property."


Life Estates in Real Property

A second probate-avoidance technique, according to Six Ways to Avoid Probate by Judon Fambrough (2016), "involves the creation of a life estate in real property. A life estate cannot be created in personal property. A life estate is a unique form of ownership whereby the owner of the real property (the estate planner) conveys title to another person, but retains a life estate." See also How to Minimize the Need for Probate in Texas.

Living Trusts

Living trusts are another way to avoid probate, according to Six Ways to Avoid Probate by Judon Fambrough (2016)—but living trusts are complex. Six Ways to Avoid Probate defines a living trust as a trust "created while the property owner (estate planner) is alive, as opposed to a testamentary trust created when the owner dies. A testamentary trust cannot be used to avoid probate; only a living trust (sometimes called an intervivos trust) can do this."



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