Wills and Probate

Probate Attorney

Texas will probate administration refers to the legal procedures by which a deceased individual's property passes to others after his or her death. Probate administration may be necessary, regardless of whether the person died with a will or without a will (which is known as "intestate").

Probating a Will in Texas and What You Need to Know
Generally, the probate administration process involves collecting the decedent's assets, paying any debts, paying any taxes owed, and distributing property to the heirs. If a will is submitted to probate, the named executor carries out these duties under the supervision of the probate court. If there is no will, an administrator is appointed by the probate court.

How long probating a will in Texas takes and how much a probate costs (as paid from the estate of the decedent) are variable, dependent upon the facts and circumstances of each case. A well-crafted will expedites the process. Estates with few or no debts are more quickly dealt with than complex ones with ongoing businesses. It is therefore important to hire the best Texas probate lawyer when probating a will in Texas.

Any claims as to the validity of the will are also part of the Texas probate administration proceedings. Wills must be executed in a specific manner to be valid. Additionally, there may be multiple versions of the will with different provisions, all created by the decedent. Typically, the latest version of the will is the one that will take effect, but this is only if that particular will is found to be valid. If the will submitted to probate is found to be invalid, the decedent's estate will be administered if he or she had died intestate.

Determination of Heirs

The determination of heirs becomes an issue if a person dies without a will or if the will has been revoked or annulled ("intestate as to the person") or if a person dies without including a specific asset in an otherwise valid will ("intestate as to property.") Under any such circumstance, the Texas probate court acts according to the Texas laws of intestate succession to determine the distribution of the decedent's property.

Texas probate proceedings are public

Texas probate administration proceedings are public records; as such, the terms of the will are available to anyone. Notice, typically by publication in a local newspaper, must be given so any individual who may have a claim against the estate of the decedent may do so in a timely manner.

It is important to distinguish the difference between a person's probate estate and non-probate estate. Certain assets are transferred immediately upon the decedent's death by operation of law without the need for probate. Examples include life insurance policies, any asset held in joint tenancy with right of survivorship, assets with a pay on death beneficiary, and assets held in a valid trust.

A consultation with a Texas probate lawyer, immediately following a loved one's death, is the key to carefully managing an estate, and the best way to ensure a resolution as quickly and as economically as possible.

For a free initial consultation, do not hesitate to contact Texas probate attorney Dwain Downing at (817) 860-5685 or (972) 686-5566.

Wills and Trusts Attorney

The vast majority of Americans are familiar with the concept of a Will, and while the majority of Americans understand the need for a Will, a large percentage never make one or consult a wills lawyer to draft one for them.

Wills can take a variety of forms and can be used for a variety of purposes in Texas. In general, however, a Will is used to spell out how a person wants their assets divided at the time of their death. It may also address the payment of debts, conditions upon certain gifts to certain individuals, etc. The Will should be drafted as part of an overall estate plan for the person or married couple considering the Will. 

At its core, a Will has traditionally been the foundation of any estate plan. In addition to the Will, someone should consider powers of attorney, living Wills, trusts, life insurance, non-probate assets, etc. in their overall estate plan. 

At the time that the Will is created, the Testator, the person signing the will, must 1) have the proper capacity (ability to understand his decisions), 2) have the intent to create a Will, 3) sign and date the Will in the presence of two witnesses, and 4) never subsequently revoke the Will. If each of these elements is satisfied, then the Will is a valid document to control the disposition of the Testator's estate.

Under a Will, the Testator can lay out a variety of methods for the division of his estate. For instance, she can leave gifts of certain dollar amounts to various individuals or institutions, or she can divide her estate into percentages or shares.

A well-drafted Will should be type-written, signed by the Testator in the presence of two witnesses, and it should also include a Self-Proving Affidavit signed by the Testator, his two witnesses, and a notary. The Self-Proving Affidavit is an affidavit attached to the Will wherein the Testator and his witnesses swear to the fact that the Testator signed the Will in the presence of the witnesses and that he intended it to be his Will and had the required capacity to create a Will. The affidavit also confirms that each of the witnesses were over the age of 14 at the time they signed the Will and that they saw each other sign the Will.

Guardians and Trusts for Children....

Invariably, all parents of minor children share the concern of who will care for their children in the event they die before the children are adults. In a Will, you can include a provision that designates the person(s) you want to care for your children in the event of your untimely death. Likewise, you can designate someone to manage any money that you leave for your children. The Trust is created in your Will, but it does not become effective until you die. However, upon that death, the Trust is funded with the assets that you designated for your children to receive. Through this Trust option, you can designate that the Trust continue until a certain age of your children or for their lifetimes. When the Trust terminates, your children will receive the assets of the Trust outright. However, prior to the termination date, the Trustee will have the ability to make distributions for your children's health, support, education, and maintenance. This provides a mechanism for a responsible person to be able to make decisions for your children in the event you are not alive to do so.

Powers of Attorney

Although many people have heard the term “power of attorney,” most do not fully understand what it means. A power of attorney allows someone to designate another person to make either medical or financial decisions for them in the event that they are not capable of making those decisions themselves. While a power of attorney can still be effective if someone is unconscious or incapacitated, it ceases to be effective as soon as they die.

The Texas Legislature has created two different types of powers of attorney: 1) Medical Power of Attorney, and 2) Statutory Durable Power of Attorney. The forms for both of these documents are created by the Legislature, but they must be understood and executed correctly to be effective.

The Medical Power of Attorney form allows you to designate a family member or friend to make medical decisions for you in the event that you are not able to do so. The Medical Power of Attorney does not become effective until such time as you require medical care but cannot make decisions for yourself. The person you designate to make these decisions is known as the “agent,” and the agent has broad authority to make medical decisions, unless you specifically restrict his authority.

The Medical Power of Attorney must be signed by the person granting the power, by two witnesses, and by a notary public. A copy should be provided to your regular doctors, as well as to hospital staff, if you are having a planned surgery. We generally recommends to its clients that they provide a copy of the Medical Power of Attorney to the people named in the document so that they are aware of the responsibility they have been given.

The Statutory Durable Power of Attorney allows you to designate someone to make financial decisions for you in the event that you are unable to do so for yourself. Like the Medical Power of Attorney, the Durable Power of Attorney is a form created by the Texas Legislature and is effective even after you are incapacitated. However, the Durable Power of Attorney ceases to be effective upon your death.

The Durable Power of Attorney allows the designated agent to make a wide range of financial decisions, unless you have specifically restricted that authority. If unrestricted, the agent can pay bills, buy or sell real estate, buy or sell investments, pay your taxes, etc.

The biggest reason for creating powers of attorney is to avoid the necessity for a court-ordered guardianship in the event that you suddenly become incapacitated. As you will see elsewhere on our site, Guardianships can be difficult, time consuming, and costly for all who are involved. By creating powers of attorney, you are designating someone to make medical and financial decisions for you when you are not capable of making those decisions. Because you have granted this right to those designated in the Powers, you can avoid the necessity for the guardianship.

Trusts

In many states over the last decade or so, the use of Revocable Living Trusts (generally referred to simply as “Living Trusts”) has increased as an alternative to the traditional Will for laying out someone’s desires for the division and distribution of their estate at the time of death. Although these trusts are not used as widely in Texas, they remain a viable estate planning option in certain situations.

The Living Trust is created during the lifetime of either an individual or a married couple, and the person(s) creating the Trust is known as the Grantor(s). At the time of the death of either one or both of the Grantors, the assets held in the Trust are distributed according to the provisions of the Trust agreement, rather than the provisions of a Will. As a result, if all of the Grantors’ assets are held in the Trust, then they can completely avoid the probate process.

Upon creation of the Trust, and continuing through the lives of the Grantors, all of the assets owned by the Grantors are transferred into the Trust. This includes real estate, as well as all personal property assets, such as bank accounts, insurance policies, stocks, brokerage accounts, etc. To accomplish the transfer into the Trust, new deeds must be prepared for real estate, new car titles must be issued, bank accounts must be re-styled to reflect the ownership by the Trust, and stock/brokerage accounts must be retitled in the name of the Trust.

Any assets not held in the Trust at the time of the death of either of the Grantors will be included in the probate estate of the Grantors and will be subject either to the provisions of their Wills or to the provisions of Texas law if they did not have Wills.

In many states, the probate process can be very costly and time-consuming. By using the Living Trust, the Grantors can avoid the probate process completely. In those states, the biggest advantage to creating the Living Trust is the ability to avoid probate. Additionally, anyone owning real estate in more than one state is going to be required to have their estate probated in every state in which that person owned real estate. However, by transferring title to all of the real estate into the Trust, the probate process can be avoided in all of the states in which such property is located. Obviously, this avoids significant costs associated with hiring lawyers in multiple states.

For a free initial consultation, do not hesitate to contact Texas estate planning attorney Dwain Downing at (817) 860-5685 or (972) 686-5566.
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* The content that is provided on this website is to be used for general information purposes only. It is not meant to be legal advice, and does not establish an attorney client relationship. It is recommended that you consult with an attorney on any legal matters.

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