You might know that creating an estate plan is a great way to help you avoid probate, but what about living probate? Have you taken the steps to guard against the possibility that you might one day have to have someone appointed to make decisions on your behalf? Though a lot of people have heard about probate, fewer know anything about living probate. Unfortunately, the cost of living probate can often exceed the cost of having to go through formal probate. Let’s take a look at what living probate in Texas is and why you need to create an estate plan that prepares for it.
Probate courts in Texas are courts of limited jurisdiction. This means that the probate court will only hear certain types of cases and won’t hear others. Probate courts mostly deal with estates. An estate is all the property a deceased person leaves behind. The probate court is responsible for overseeing the process through which that property is distributed to new owners. This process is generally referred to as probate or formal probate. However, probate courts also have jurisdiction over cases where adults—people age 18 or over—are no longer capable of making their own decisions. These types of cases are generally referred to as living probate because they involve someone who, while still alive and who needs someone to make decisions on his or her behalf.
Guardians and Executors
When a Texas probate court hears a living probate case it has to decide who should make decisions for an incapacitated person. An incapacitated person is someone who, because of age or infirmity, is unable to make decisions on his or her own. For example, children cannot legally make their own decisions. In most situations a child’s parents will have the legal authority to make decisions on the child’s behalf. If the child’s parents die, the court will have to appoint a guardian to make decisions for that child. In a similar fashion, if an adult loses the ability to make choices because he or she is no longer mentally capable, is comatose, or is otherwise unable to make choices, the court will also have to appoint a guardian. It’s important to note that a guardian is not the same as executor. A guardian looks after an adult’s interests while that person is still alive. An executor, on the other hand, is responsible for managing a deceased person’s estate.
Living Probate and Incapacity Planning
While most people will never have to go through living probate, it’s important to ensure your estate plan addresses this possibility. Creating an incapacity plan that includes powers of attorney, advance directives, and even certain types of trusts is absolutely essential if you want to be properly prepared.
To learn more, please download our free what you need to know about Texas probate process here.