Can you make sure your spouse and children inherit what you want without probate in Texas?

Short answer: Some assets can pass outside probate in Texas if you use beneficiary designations, payable-on-death (POD) / transfer-on-death (TOD) arrangements, joint ownership with survivorship, TOD deeds for real estate, or a properly funded revocable living trust. A will alone does not avoid probate; it controls how probate proceeds. This article explains how each tool works, practical steps you can take, and common pitfalls to avoid. This is educational information only and not legal advice.

Detailed answer — how different tools work in Texas

1. Wills: what they do and what they don’t

A will states your wishes for dividing your estate and can name a guardian for minor children. In Texas, a will must be probated to transfer title to most assets that are solely in your name when you die. Probate is the court process that validates the will and authorizes distribution. If your goal is to avoid probate, a will by itself will not accomplish that for assets titled in your sole name.

2. Beneficiary designations (retirement accounts, life insurance)

Accounts and contracts that allow a named beneficiary — for example, IRAs, 401(k)s, annuities, and life insurance policies — generally pass directly to the designated beneficiary outside of probate. Make sure beneficiaries are current and that you name contingent beneficiaries in case a primary beneficiary predeceases you. These beneficiary designations control the contract and override instructions in most wills, so keep them up to date.

3. Payable-on-Death (POD) and Transfer-on-Death (TOD) accounts

Bank accounts, brokerage accounts, and some securities can often be titled with a named POD or TOD beneficiary. When you die, the named person asks the institution for payment and the funds pass without probate. The bank or broker typically requires a death certificate and proof of identity of the beneficiary.

4. Joint ownership with right of survivorship

Property titled jointly with right of survivorship (for example, a joint bank account or a home held as joint tenants) passes to the surviving owner automatically at death and avoids probate for that asset. Be careful: joint ownership creates legal rights while both owners are alive — the co-owner has access and sometimes creditors can reach the asset. Also, adding someone as joint owner for the sake of avoiding probate can have unintended tax, Medicaid, or family consequences.

5. Transfer-on-Death (TOD) deed for real property in Texas

Texas law permits an owner to sign a transfer-on-death deed (sometimes called a beneficiary deed or TOD deed) that names one or more beneficiaries who will receive title to real property at the owner’s death without probate. The deed must meet statutory requirements and be properly recorded in the county where the property is located while the grantor is alive. A TOD deed can be revoked during the grantor’s lifetime. (For authoritative Texas statutes and forms, review the Texas statutes website: statutes.capitol.texas.gov.)

6. Revocable living trusts (RLT)

A revocable living trust is a legal entity you create during your life. You transfer title to assets into the trust, and you (or you and your partner) usually serve as trustee(s) while you’re alive. At death, a successor trustee distributes trust assets according to the trust document, outside probate. A trust can handle complex distributions, manage assets for minor children, and provide continuity if you become incapacitated. The key necessary step is retitling assets into the trust — a trust does not control assets still titled in your individual name.

7. Protecting inheritances for minor children or vulnerable beneficiaries

You generally cannot name a minor child as an outright beneficiary of an IRA or brokerage account without creating a risk that a guardian or custodian must manage the funds (which can be inefficient or risky). To control how and when children receive assets, use a trust (often created in your will as a testamentary trust or created inter vivos as a revocable trust) and name a trustee to manage distributions. Trusts allow conditional distributions (e.g., at certain ages) and can hold assets beyond childhood.

8. Community property and Texas intestacy

Texas is a community-property state. That affects how property acquired during marriage is treated and how intestate succession (dying without a valid will) works. When spouses die without proper planning, community property and separate property rules determine who inherits. If your goal is to ensure specific outcomes for spouse and children, use beneficiary designations, deeds, joint titling, or trusts consistent with community property rules — preferably with legal help to avoid surprises.

9. Taxes and creditors

Texas has no state estate tax, but federal estate tax may apply to very large estates. Avoiding probate does not shield assets from legitimate creditors. Some transfers (like gifts or adding someone to title) can affect eligibility for benefits such as Medicaid. Consult a qualified advisor for tax and long-term care planning advice.

Practical steps to structure your estate to minimize probate in Texas

1. Make a complete inventory of all assets and how each is titled (sole name, joint, beneficiary, trust, etc.).
2. Update beneficiary designations on retirement accounts, life insurance, annuities, and payable-on-death bank or brokerage accounts. Confirm beneficiary forms supersede wills in most cases.
3. Consider re‑titling appropriate accounts or opening POD/TOD accounts for small bank/brokerage balances.
4. If you own real estate and want to avoid probate for it, research a Transfer-on-Death (TOD) deed. Have a lawyer draft or review the deed and ensure proper recording in the county where the property lies.
5. If you have significant assets, assets that need management for minor beneficiaries, or want to avoid probate for most of your estate, consult about creating a revocable living trust and retitling major assets into it.
6. Coordinate estate documents with beneficiary designations so they work together rather than contradict each other.
7. Review plans after major life events: marriage, divorce, births, deaths, or changes in finances.

Common mistakes to avoid

• Relying on a will alone to avoid probate. Wills generally must still be probated.
• Failing to update beneficiary designations after a major life event — beneficiaries named years ago may no longer reflect your wishes.
• Adding a joint owner solely to avoid probate without understanding the co-owner’s legal access, tax consequences, and exposure to creditors.
• Setting minor children up to receive assets outright — use trusts to control timing and management.
• Not properly recording a TOD deed or failing to retitle property into a trust, which means assets could still be subject to probate.

Where to look for authoritative Texas law and further reading

Texas statutes and codes are published by the Texas Legislature online: https://statutes.capitol.texas.gov. For federal tax rules that may affect very large estates, see the IRS estate tax information: https://www.irs.gov/businesses/small-businesses-self-employed/estate-tax.

Helpful hints

• Inventory and title review: Start by listing every account, policy, and deed and noting how each is titled.
• Beneficiary hierarchy: Retirement and insurance beneficiary forms usually control over your will — check and update them first.
• Use trusts for children: Trusts are the best way to control distributions for minor or young adult children and to avoid conservatorship or guardianship hassles.
• POD/TOD for small accounts: For small bank or brokerage balances, POD/TOD designations are low-cost ways to avoid probate for those assets.
• Think about incapacity: Documents such as durable powers of attorney and healthcare directives (advance directives) handle incapacity and are separate from probate avoidance but essential to a complete plan.
• Record-keeping: Store beneficiary forms, deeds, trust documents, and the will where your executor/trustee can find them and provide copies to your attorney or trusted agent.
• Review periodically: Revisit your plan every few years or after major life events.

Next steps — practical options based on your situation

If you and your spouse want a relatively simple plan to pass assets to each other and then to children without probate, common approaches include:

• Using beneficiary designations on financial accounts and life insurance; POD/TOD for bank and brokerage accounts; and a TOD deed for real property you want to pass directly to beneficiaries.
• Creating a revocable living trust, funding it with major assets, and naming a successor trustee to manage and distribute assets to a surviving spouse and children without probate.

Which approach is best depends on the size and types of assets, the ages of your children, tax concerns, Medicaid planning needs, and family dynamics.

Disclaimer: This is general educational information about Texas law, not legal advice. Laws change and every situation is unique. Consult a licensed Texas attorney to design and implement an estate plan tailored to your needs.