If you speak to some people, they will curse the word Probate.  You might hear it is the worse thing in the world and you should be afraid, very afraid.  I disagree.

As with most things in life, their is a time and place for everything.  The process of Estate Planning is the process of planning how your assets will be handled throughout your life and after you pass away.  At times, Estate Planners will recommend placing your assets in vehicles called “non-testamentary assets” or “non-probate assets.”  A non-testamentary asset is an asset which is not disposed of by will.  Texas Probate Code Section 454 speaks to this issue precisely:

Transfers at death resulting from agreements made in accordance with this part of the code are effective by reason of the agreement involved and are not testamentary transfers.  Such transfers are not subject to the provisions of this code applicable to testamentary transfers except as expressly provided otherwise in this code.

Some “non-testamentary” or “non-probate” assets include insurance policies, payable on death accounts, and trust to mention a few.  The Texas Probate Code states non-testamentary assets are controlled by the agreement not the will.

If the asset is not a non-probate asset (forgive me for the double negative) then it is a probate asset.  A probate asset is an asset which a will can dispose of.  In essence, it is all assets which are considered non-testamentary assets.

There are good reasons to “place” assets in non-testamentary “vehicles.”  There are also good reasons not to place them in non-testamentary vehicles.

A valid will can practically dispose of a persons assets just a easily and just as definitively as the agreement related to the non-probate asset.

Instead of thinking of “Probate” as that seven letter word and being a bad thing, one should consider probate as another tool in addressing ones estate.   Over time I will speak to the some of the advantages and the disadvantages.