Frequently Asked Questions

Probate And Estate Planning

What Is A Will?

In Texas, a will or a “last will and testament” allows a person to designate how their assets or estate should be distributed upon their death.

What Happens Without A Will?

In Texas, if you die intestate, the property owned upon your death will be distributed pursuant to the rules of intestacy. Intestate simply means dying without leaving a valid will. Under Texas intestacy laws, how your assets are distributed is determined by whether or not you are married, have living parents, children, or other relatives upon your death. Because of this, intestate succession can be very complicated and occasionally results in assets being distributed in a manner that is contrary to the decedent’s wishes.

So How Does A Will Help Me?

With a will, the probate process can be quick and painless for the deceased’s beneficiaries. A will not only tells your loved ones how to distribute your estate, but it also tells the court what to do with your estate. The court will do its utmost to follow these instructions without lengthy court processes. On the other hand, without a will your loved ones will be forced to go through the complicated and time consuming process of determining who your heirs are and what percentage of your estate they are entitled to. Without a will, costs are usually high, and can be even more expensive when all the heirs do not agree.

Internet Forms And E-Wills

Did your loved one prepare a legal document without a lawyer? Did they download a form from the internet, that is now causing problems? People will often download and sign documents written for other states assuming that they will work in Texas. However, because of Texas’ unique history, many of its laws draw inspiration from Spain and Mexico. Because of this, many standardized forms that work in other states simply do not meet Texas requirements.

We see this problem all of the time and, thankfully, there are often legal procedures that can be used to correct the flaws on these documents circulating the internet. Let us help you and your loved one’s straighten out these errors before it is too late.

How Do You Revoke A Will?

In Texas, wills are generally revoked by a physical act or a subsequent writing. A subsequent writing is generally an entirely new will. Next, a will may also be revoked by a physical act (i.e. destroying, ripping, tearing, etc.) coupled with the actual intention to revoke a will. Therefore, accidental damage to a will, without the intent to do so, may not result in the revocation of the will.

Choosing Between Independent And Dependent Administration

Under Texas law, independent administration can be granted by a court if: the deceased person specified or requested as such in their will, or if all beneficiaries or heirs agree to an independent administration of the estate. If neither of the above is applicable, or the person dies without a will, the estate may be subject to dependent administration.

What Is The Difference Between An Administrator And An Executor?

If a will names a person to administer the estate, they are called an Executor. If the personal representative of the estate was not named in the will they are called an Administrator.

Choosing Between Independent And Dependent Administration

Another probate process, Muniment of Title is a unique process to Texas and is primarily used for transferring title in real estate from the decedent to those named in the will. A Muniment of Title does not require the appointment of executors or administrators. However, because of its many limitations, Muniment of Title is typically used in smaller estates solely consisting of real estate, with no outstanding debts, and without the need for an administration of the estate.

What Is A Trust?

A trust is an entity set up to control a person’s assets. Before the assets are placed into trust, a trustee must be named. A trustee serves as the person who administers the trust assets. Next, beneficiaries are named as to who can receive from the trust. Compared to a will, which directs how assets are distributed on death, a trust is created while a person is alive. Further, trusts are often favored to avoid probate and to keep a person’s assets and affairs private, unlike the probate process. However, because of their complications and requirements, trusts generally cost more than a simple will to set up.

Probate And Estate Planning

Who Can Serve As A Witness To A Will?

Texas wills require signatures from two or more competent witnesses over the age of 14. Although not required, these witnesses should generally not have an interest in the estate. While no will fails for an interested witness, bequests to interested witnesses can be held void, absent an exception.

What Is Probate?

Probate is the process of a court recognizing that someone has died and authorizing the administration and settling of their estate. Probate can occur with or without a will.

What Is A Codicil And How Is It Used?

A codicil is a change in a prior executed will. A codicil does not revoke a previous will, instead it merely makes changes or alterations the testator desires to their existing will. For a codicil to be effective, it must meet all the requirements of a valid will in Texas.

What Is A Homestead And Why Is It Important?

In Texas, every family or single adult is entitled to a homestead exemption. This homestead designation on property can be used to prevent the loss or seizure of the property in certain situations. Further, there are two types of homesteads in Texas: the urban homestead, and the rural homestead. An urban homestead is limited to 10 acres of land, while a rural homestead is limited to either 100 acres for individuals or 200 acres for married couples.

Independent Versus Dependent Administration

Independent and dependent administration refer to the two ways an estate may be settled in Texas. Under dependent administration, the estate representative is required to get court approval to carry out most actions in settling the estate, increasing the costs of administration. This process is often arduous, slow, and taxing on the representative. On the other hand, independent administration gives the estate representative great autonomy and authority to settle the estate on their own. However, because of the lack of oversight, independent administrators have many deadlines and duties that must be followed. Due to this complexity, attorneys are often sought for the proper administration of an estate.

What Is A Testamentary Trust And How Is It Used?

A testamentary trust differs from most other trusts in that it does not require the giving away of one’s assets during their lifetime. Instead, a testamentary trust is created through provisions in one’s last will and testament. Because of this, a testamentary trust only becomes effective when a person is deceased.

Should I Create A Trust Or A Will?

It depends. Every situation is unique and requires proper legal knowledge to determine what best suits one’s needs. The general situations where a trust is favored over a will are when: there are tax implications, there are privacy issues, there is real estate in another state, a future disability is apparent, or a will contest is likely to occur.

What Is A Living Will?

A living will specifically sets out what type of medical treatment a person would like to receive or not receive should they be incapacitated when the need arises.

What Is A Power Of Attorney?

A Power of Attorney is a document that allows a person to give someone else the legal authority and power to act on their behalf. There are two typical types of powers of attorney, each with their own powers and limits. A medical power of attorney allows a person to designate another who may make medical decisions on their behalf. A statutory durable power of attorney allows a person to designate another who may make financial decisions on their behalf.

What Is A Muniment Of Title?

Guardianship

What Is Guardianship?

Guardianship is the process where a person is legally determined to no longer be capable of making decisions on their own. Because being placed under guardianship removes many rights of the ward, including but not limited to: the right to vote, marry, manage property, etc., less restrictive alternatives are considered before moving for a guardianship. Based on the circumstances, a guardianship may be temporary or permanent.

What Is A Guardianship Of The Person?

A guardianship of the person occurs when a guardian is given control over a ward’s personal decisions such as where they live, the right to consent to medical treatment, right to divorce, etc. This guardian of the ward’s person may have their rights curtailed by a “limited guardianship of the person.” Under a limited guardianship of the person, a court may determine that the ward is capable of making certain decisions on their own.

What Is A Guardianship Of The Estate?

A guardianship of the estate is when someone is given the right to manage the financial affairs of the ward, this includes the right to control the ward’s property. Like a Guardian of the Person, a Guardian of the Estate may be given a “limited guardianship of the estate.” Under a limited guardianship of the estate, a court may determine that a ward is capable of making limited financial decisions on their own.

Can A Single Person Be Guardian Of The Person And The Estate?

Yes, a single person may be Guardian of the Person and the Estate.

Litigation

Do Guardianships Transfer From State To State?

Yes, guardianships are transferable from one state to another. However, because of differing requirements in each state, attorney expertise is often recommended or required in some cases.

What Are Fiduciary Accountings?

Accountings by someone who has a fiduciary duty to a beneficiary or beneficiaries. These persons commonly include Guardians, Trustees, Executors, and Administrators.

What Is Litigation?

“Litigation” is the process of settling a dispute between opposing parties through the court system. Litigation is an adversarial action wherein the opposing parties may have the judge or a jury make the final decision over the contested issue.

Can You Litigate An Inheritance, Probate, Or Guardianship Matter?

Yes. While some areas of law have very little litigation, inheritance, probate, and guardianship matters are often litigious due to their very personal nature. Generally, one might rightfully feel wronged that they did not receive an inheritance, they were left out of a will, or someone is trying to place them under guardianship when they are mentally competent.

On the other hand, that person may have been rightfully excluded from their inheritance, left out of a will, or truly need to be placed under guardianship for their own well-being. Every litigated matter is unique and requires expertise to see it through.

How Long Does Litigation Take?

Again, it depends. In some cases, litigated matters can be completed with a settlement in a matter of hours or days. Alternatively, contentious litigated matters can take weeks, months, or even years.