Q:   What is a Will?

A:   A Will is a written or oral expression of one’s intention regarding disposition of property upon one’s death.

 

Q: Who Needs a Will?

A: Anyone who is 18 years of age or older or is less than 18 years of age and married or is a member of the U.S. Armed Forces and wants to direct the disposition of his or her assets at his or her death needs a will.

Q: Can I write my own Will?

A: While it is not recommended that you write your own Will.  Texas law does allow you to write your own Will if it is completely in your own handwriting and meets the requirements of Texas law to constitute a valid handwritten Will.

Q: What happens to my property if I don’t have a Will?

A: Your property will pass by intestacy and The State of Texas will determine how your property passes to family members upon your death.  Your property will not pass to the state; however, you may want your property to go to certain family members other than those the state requires to inherit your property.

Q: What property is controlled by my Will?

A: Your will disposes of all of your separate property and your one-half interest in any community property you may own with your spouse.  Some property passes outside of your Will and is not subject to probate.  Non-probate assets may include certain bank accounts (i.e. payable on death, multiple-party accounts with ROS, etc.), certain stock accounts, U.S. Savings Bonds, life insurance and retirement benefits if they have a valid beneficiary designation other than your estate).  You cannot dispose of your spouse’s property in your Will.

Q: Can I change or cancel my Will?

A: Yes, you can change your Will by making a new Will stating that the new Will revokes all prior Wills; or by destroying the original Will; or by signing a codicil or an amendment to your will.  Anytime a significant change occurs in your life (i.e. marriage, divorce, birth, death, a move, change of jobs, or significant change in health or wealth), you need to review your Will to determine if it still fits your needs.  This also includes a change of law concerning estate taxes.

Q: If I am sick, can I still sign a Will?

A: Yes, as long as you have testamentary capacity.  Which basically means that you can sign a Will as long as you understand that you are making a Will and you know what you own.  You also need to know who are the members of your family or other important people in your life and what each is to receive.

Q: What is Probate?

A: Probate is the court procedure by which a Will is proved to be valid or invalid.  Most probate proceedings are initiated by the filing of an application to probate will or for and administration in the Probate Court or County Court At Law and require a hearing.  At the probate hearing, the Judge will determine whether the Will meets all of the requirements of Texas law to be considered a valid Will (i.e. signed, witnessed, self-proved, etc.).  If the will is proven to be valid, it is then “admitted to probate.”  However, probate can also refer to other proceedings relating to the administration of one’s estate even if a Will does not exist.

Q: Does my family have to pay my debts when I die?

A: The short answer is No.  You are responsible for the payment of your own debts, not your family members.  However, there are circumstances where a spouse, co-signer or other joint owner will be responsible for payment of a debt if he or she is also on the account or has a community interest in the property.  Otherwise, your debts will be paid in order of classification during the administration of your estate, if your estate is solvent and  has sufficient funds or assets to pay these debts.

Q: If a person dies without a Will, how does the court determine their heirs?

A: If a person dies without a Will (intestate), the heirs of the estate and their respective shares must be determined by the initiation of an heirship proceeding.  In this proceeding, all facts concerning the identity of heirs is presented to the court at the hearing.

Q: What are Letters Testamentary?

A: Letters Testamentary (or Letters of Administration) is a one-page document issued to an Executor or Administrator, once he or she has qualified to serve, by the county clerk’s office as evidence of the executor’s (administrator’s) authority to act on behalf of the estate.

Q: What are the alternatives to full administration (probate) of an estate?

A: There are several alternatives to a full administration of an estate, such as:

1.    Probate of Will as a Muniment of Title. 4.    Heirship determination.

2.    Application for no administration. 5.    Small Estate Affidavit          3.    Affidavit of Heirship.   6.    Informal family agreements.

Q: What is a Trust?

A: A Trust is a document that allows a property owner (Trustor/Grantor/Settlor) to transfer legal title of an asset to a person (Trustee) who has the duty to hold and manage the asset for the benefit of one or more persons (Beneficiaries).  The terms and provisions of the trust are contained in a document called a Trust Agreement or in the property owner’s Will.

Q: What are the various kinds of trusts?

A: There are two major categories of trusts based on how they were created: Testamentary Trusts (created in a Will and comes into being upon the death of the Testator, or some other future date), and Inter Vivos Trusts (created during the lifetime of the Trustor).  Both types of trusts provide for the management of the assets transferred to the trust.

Q: What is a Living Trust?

A: A type of revocable inter vivos trust, which provides for asset management during the lifetime of the Trustor and can provide for the disposition of the assets held in the Trust after the death of the Trustor.  One of the principal advantages of the Living Trust is that it may avoid the necessity of a guardianship if the Trustor becomes incapacitate.  Such a trust may also act as a Will substitute for the assets held in the trust at the death of the Trustor.  The property held in the trust passes to the designated beneficiaries at the Trustor’s death by the terms of the Trust Agreement and is not part of the probate estate.  Revocable living trusts are also useful if the Trustor owns real property in other states.  Once the real estate is transferred to the trust, there is no need for probate proceeding in the other state(s) on the death of the Trustor.  One of the principal disadvantages is that the Trustor must be sure to update the living trust each time he or she acquires new property.  For example, if the Trustor buys a new car, and dies without including the new car in the Living Trust, probate may still be necessary to dispose of this asset.  Thus, if you have a living trust, it is still advisable to have a Pour Over Will to allow any assets not contained in the trust to pass by the terms of your Will.

Q: What does it mean when a person is “incapacitated”?

A: A person is considered to be incapacitated if he or she is unable to provide food, clothing or shelter for himself or herself, to care for his or her physical health, or to manage his or her financial affairs, due to a physical or mental condition.  Just because a person is of advanced age or hospitalized does not automatically mean that person is incapacitated.

Q: When should I plan for incapacity?

A: The sooner you start planning, the better.  If you become incapacitated without advance planning, it is often to late to execute a Medical Power of Attorney or Durable Power of Attorney, thus often times a court will then need to appoint a guardian to manage your medical and/or financial matters.

Q: What is a Power of Attorney?

A: A Power of Attorney is a legal document created by one person (Principal) who appoints another person or persons (Attorney-in-Fact or Agent) to handle certain matters (such as: medical, legal, real estate,  financial etc.) that the Principal may be unable to handle on his own due to incapacity or other reason such as temporary absence from the state.  By executing a Medical Power of Attorney, you can appoint one or more persons whose judgment you trust to make medical and health care decisions on your behalf should you be unable to do so yourself. By executing a Statutory Durable Power of Attorney, you can appoint one or more persons whose judgment you trust to manage your financial affairs in your absence or due to you incapacity.  A typical power of attorney will automatically terminate under Texas Law upon the principal’s incapacity, unless the power of attorney is a durable power of attorney that contains language to the effect that “This power of attorney is not affected by subsequent disability or incapacity of the principal.”  With any Power of Attorney, you have the ability to give your agent complete authority or you may limit his or her authority to certain decisions/tasks, etc.

Q: What is a Living Will?

A: A Living Will is often confused as an actual Will which disposes of property at death; however, a Living Will (also known as a Medical Directive or Directive to Physicians) is an instruction to a physician whether or not to withhold life-sustaining procedures (such as respirator) in the event of a terminal illness (i.e. you are expected to die within six months), or you are suffering from an irreversible condition such that you cannot care for or make decisions for yourself and you are expected to die without such life-sustaining treatment.  Hospitals and nursing homes are now required by Texas Law to inquire whether a patient has a medical directive prior to admittance for the benefit of the patient.  Failure to have a medical directive will not prevent treatment.

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