Wills And Probate

Last Will and Testament

The foundation of a good estate plan is your will, more formally known as a last will and testament. Having a will is important for many reasons. Your will identifies the people that you want to inherit your property after you die. Some people want their spouse to inherit everything, others want to split their assets between their spouse and their siblings. Some people want to leave everything to one or more charitable organizations. Others want close friends to receive certain items of property. Whatever your wishes are, you need a valid will to ensure that your survivors know what you want to be done with your estate.

Your will is also the document that will appoint a trusted person to be the executor or representative of your estate. It is the document in which many people choose to name the guardian for their minor children, if they have any, as well as a trustee for any property that minor children may inherit.

Many people assume that only very wealthy people need to have a will, but this is simply incorrect. Because most people's estates will end up in probate (discussed in more detail below) having a will is vitally important and will save your family significant expenses in probating your estate.

Powers of Attorney

In addition to a will, some key documents in an estate plan are the powers of attorney. Many people are at least vaguely familiar with what a power of attorney is. Basically, a power of attorney is a document that gives a trusted person the authority to act as your agent to make decisions or conduct transactions on your behalf. There are two basic types of power of attorney: the statutory durable power of attorney and the medical power of attorney (also called a power of attorney for healthcare).

The statutory durable power of attorney names a person to act on your behalf in matters of finance, real property, stocks and securities, tax issues, etc.-basically anything outside of the realm of healthcare decisions. This document can be drafted to come into effect immediately, which may be useful if you travel a lot and an issue arises that you need your agent to be able to handle for you. The power of attorney can also be drafted to become effective only if you are determined by a physician to be incapacitated. The decision of when the power of attorney should come into effect is one that depends greatly on each person's specific situation. It is important to discuss the pros and cons of either approach with your lawyer.

The medical power of attorney names an agent to make medical decisions for you if you are unable to articulate those decisions for yourself, such as, for example, if you are unconscious. Unlike the statutory durable power of attorney, the power of attorney for healthcare can only become effective if you are incapacitated.

The medical power of attorney cannot be used to make life or death decisions on behalf of the principal. Your agent cannot order the withdrawal of life support or a do-not-resuscitate order for you based on the power of attorney.

- Unlike the statutory durable power of attorney, the power of attorney for healthcare can only become effective if you are incapacitated. The medical power of attorney cannot be used to make life or death decisions on behalf of the principal. Your agent cannot order the withdrawal of life support or a do-not-resuscitate order for you based on the power of attorney.

Other Estate Planning Matters

We also handle other aspects of estate planning including:

  • Advance Directives to Physicians or Family Surrogates (also called Living Wills)
  • Appointment of Agent for Disposal of Remains
  • Declaration of Guardian in Advance of Need
  • Declaration of Guardian for Minor Children
  • HIPAA Release
  • Testamentary Trust for Minor Children

Probate

Probate is the judicial process by which a decedent's estate is administered. You have probably read articles or heard people say that probate is a burdensome process that should be avoided at all costs. This is simply not accurate. Texas estate law allows for minimal court supervision, especially if the decedent had a valid, properly-drafted will. Decedents' estates can go through probate even if the decedent did not leave a will, but a will typically makes the process simpler and more cost-effective. In fact, most people's estates will require some type of probate in order to transfer title to real property, among other things. Even if the decedent did not own much property, sometimes probate administrations must be established to protect the rights of the decedent's family, such as if the decedent was killed due to the negligence of another party.

Probate of a Will

If you have a loved one who has passed away and left a will, his or her will should be offered for probate. This raises the question of who should bring the application to probate the will. Only certain people have standing to apply for probate. It most often makes sense for the person named as executor (or executrix) in the will to be the applicant. Following the filing of the application, the probate court will hold a hearing to determine if the will is valid and if the named executor is qualified to serve the estate. If the court approves the application and finds that the executor is qualified, it will issue letters testamentary to give the executor the power to represent and administer the decedent's estate.

Declaration of Heirship

If your loved one passed away without a will, the probate court will have to do a declaration of heirship in conjunction with the appointment of an estate administrator. The heirship determination process serves to identify who the lawful heirs of the decedent are. Under Texas estate law, the surviving spouse and surviving children (whether biological or adopted) of the decedent are lawful heirs. Other surviving relatives such as parents, siblings, and even nieces and nephews or cousins, may also be heirs depending on the situation and the character of the decedent's property. Because heirship can become very complicated depending on the decedent's unique family situation, the court is required by law to appoint an attorney ad litem to investigate and determine if there are any heirs other than the ones identified by the applicant.

Once the attorney ad litem and the court are satisfied that all lawful heirs have been identified and given proper notice of the probate proceedings, the court can issue an official order declaring the heirs of the estate. The court can then also appoint an estate representative, called an administrator (as opposed to an executor). The administrator, like an executor, has the power to represent and administer the decedent's estate.

Other Probate Matters

This firm also handles probate matters such as:

  • Affidavits of Heirship
  • Lawsuits Involving the Estate
  • Probate of a Will as a Muniment of Title
  • Probate of a Copy of a Lost Will
  • Small Estate Affidavit
  • Will Contests