Frequently Asked Questions
- What is probate?
- What estate planning documents should I have in place and what would these documents accomplish for me?
- How do I help ensure who would be my guardian in the event a need arises at a later point in time, especially if there is someone whom I particularly do not want to be my legal guardian?
- What are the advantages of having a Last Will and Testament?
- What happens to our minor children if we do not have Will and both husband and wife die in catastrophic disaster at the same time?
- I have children from a prior marriage and have since remarried. My second husband and I have accumulated substantial property since our re-marriage. I do not have a will. What would happen if I died without a will?
- Our children are not experienced in financial management and have shown little financial responsibility during their early adult years. What can be done to protect our estate after our deaths?
- Our children have judgment creditors (i.e. credit card companies holding a judgment). How do we protect our estate from our children’s creditors?
What is probate?
Probate is the judicial/court procedure by which a testamentary document, a Last Will and Testament, is established to be a valid Last Will and Testament of a person who has died. In a looser sense, probate is a personal representative’s actions in handling a decedent’s estate.
What estate planning documents should I have in place and what would these documents accomplish for me?
Statutory Durable Power of Attorney
A document promulgated by the Texas legislature, a statutory durable power of attorney involves a principal (the person giving the power of attorney) appointing an agent (the attorney-in-fact) to transact business on behalf of the principle. The form allows the specification of specific powers to be given (for example only granting a power of attorney for only real estate transactions; granting a power of attorney for only banking matters, etc.) or the form allows a general delegation of powers to be given to the agent, which would allow the agent to transact any and all business on behalf of the principle. The form also allows the choice of whether the power of attorney takes immediate effect, or if the principle desires for the document to take effect after the principle becomes incapacitated.
Healthcare Power of Attorney
A document appointing an agent to make major medical decisions on behalf of the principle.
Advanced Directive to Physicians
A document setting forth in writing a person’s desire on whether to use heroic efforts in maintaining life and sets forth a person’s wishes regarding life support.
Designation of Guardian in Event Need Arises
A document designating a person’s desire or choice to appoint a Guardian of their person and estate in the event need arises to appoint a guardian of the person and/or estate. This document is pursuant to the Texas Probate Code and is executed with the same formalities as a Last Will and Testament, and permits a person to expressly designate a particular person to be appointed as Guardian of their person and estate in the event need arises, and also permits a person to expressly disqualify a particular person from serving as Guardian of their person and estate.
Designation of Agent to Control Disposition of Remains
A document in compliance with the Texas Health and Safety Code which is executed before a Notary Public designating an agent to control the disposition of your remains and which can specifically set forth your requests concerning the disposition of your remains, either burial in a certain place or cremation.
Last Will and Testament
The testamentary document executed by a Testator/Testatrix (the man or woman, respectively, making a Last Will and Testament) setting forth specific bequests and instructions concerning the disposition of the individual’s estate. The Last Will and Testament becomes effective only upon the death of the person, and can be revoked at any time prior to a person’s death, as the person’s wishes or plans regarding their estate may change over time. Persons may also enter in to contractual Wills, which may be revoked at any time prior to their death, but upon the death of one contracting party will bind the other to a particular Will or Will provision.
How do I help ensure who would be my guardian in the event a need arises at a later point in time, especially if there is someone whom I particularly do not want to be my legal guardian?
A person should have a Durable Power of Attorney in place, either designating the document be effective immediately or in the event of later incapacity, so that an agent is appointed to transact business and personal business transactions on behalf of the principle. Further, it is good practice to execute a Designation of Guardian in Event Need Arises, setting forth a person’s wish as to what particular person should be appointed by the Probate Court in serving as Guardian of the Person and Guardian of the Estate. The Designation of Guardian in Event Need Arises is executed under the same formalities as is a well, and contains a Self-Proving affidavit signed by the potential Ward along with witnesses, allowing the Probate Court to find the document most persuasive in appointing a person as Guardian of the Person and/or Guardian of the Estate of an individual, and allowing the express disqualification of a particular person from serving as the Guardian of the Person and/or Guardian of the Estate.
What are the advantages of having a Last Will and Testament?
A person who dies without leaving a Last Will and Testament pass their estate subject to the then existing Texas Probate Code and the laws pertaining to persons who die intestate, without a Will. Essentially, dying without a Last Will and Testament leaves the person with no voice or control over the disposition of their estate. A person would have no control over their assets, directing who gets what, nor would the person be assured as to who would administer their estate and distribute it. Further, leaving no Last Will and Testament can possibly result in exorbitant legal fees and administration fees. For example, an administrator of an estate administering is often required to post bond, which can be costly depending on the size of the Estate. Further, administration of estates when no Last Will and Testament is left requires substantial court supervision, generating more legal fees involving administration.
By executing a Last Will and Testament, a person can make their desires known. Absent fraud, duress, incapacity, a person can have peace of mind that their estate will pass subject to the provisions and bequests set forth within their testamentary document, their Last Will and Testament. Texas allows the appointment of an Independent Executor or Executrix of an estate, as the case may be, whereby a person can waive the requirement of posting bond, eliminating that cost. Often, the requirements of a Will require only that the Executor or Executrix file an Inventory, Appraisement, and List of Claims, notice creditors in a newspaper of general circulation in the county where the decedent’s estate is being administered, and follow any other requirements of the Texas Probate Code. The necessity of Court control or intervention is virtually eliminated when a person leaves a Last Will and Testament.
What happens to our minor children if we do not have Will and both husband and wife die in catastrophic disaster at the same time?
Persons with minor children should have a Last Will and Testament appointing a Guardian of the Person and Guardian of the Estate of their minor children and providing the specific provisions regarding the disposition of their estate along with providing for a person whom they would want to appoint as personal representative of their estate (an Executor or Executrix as the case may be). The Will would help ensure that the person named to serve as Guardian would in fact be appointed as the Guardian of the Person and/or Estate of their minor children, and would attempt to circumvent the default provisions of the Texas Probate Code related to guardianships. It would also help eliminate a potential contest among competing family members who could possibly show up to take care of the minor children in the event of the parents’ deaths because the persons come to know that a potentially great amount of money would be made available to the minor children.
I have children from a prior marriage and have since remarried. My second husband and I have accumulated substantial property since our re-marriage. I do not have a will. What would happen if I died without a will?
A person who dies without leaving a Last Will and Testament is said to have died intestate. A person who dies leaving a Last Will and Testament is said to have died testate. In this example, the wife, who died intestate, passes her estate subject to the default laws under the Texas Probate Code pertaining to persons who die intestate. The Legislature has passed a statutory scheme which directs the disposition of a person’s estate that dies intestate.
Texas is a community property state; therefore, generally speaking, any property acquired during a marriage is characterized as community property; any property owned prior to marriage is generally characterized as separate property. If a person who has remarried having children from a prior marriage dies intestate, under the intestacy laws of the Texas Probate Code, the one-half (1/2) interest in community property the person has acquired during the remarriage immediately passes to and vests in the children born to or adopted by the deceased person and not the surviving spouse. Therefore, if a person in this circumstance has acquired substantial community property in a subsequent marriage and does not wish for their estate to pass subject to the default provisions and intestacy provisions of the Texas Probate Code, the person must plan for the event and make their intentions known in a written Last Will and Testament. There are also intricate rules concerning the passage of separate property to the person’s heirs at law.
Our children are not experienced in financial management and have shown little financial responsibility during their early adult years. What can be done to protect our estate after our deaths?
It is not uncommon to worry about passing a substantial amount of money and/or property to any person whom you desire to inherit your estate. Financial irresponsibility shown through time can be particularly troublesome.
If financial irresponsibility is a great concern, it would probably be wise to think about setting up either intervivos trusts (trusts set up during a person’s life for the benefit of a named beneficiary or class of beneficiaries) or make provisions within a Last Will and Testament creating Testamentary Trusts to benefit children or devisees.
Creating a trust, either during your lifetime or in your Last Will and Testament, establishes a trust estate passing that portion of your estate to a named Trustee who, in your trust, will manage the funds and/or property appropriately, and make distributions to support the beneficiary based on some ascertainable standard. This prevents the beneficiary from getting all the property at one time and potentially squandering or wasting the property. Further, trusts can be created with language which contains what is referred to as a spendthrift provision, expressly stating that the main part of the trust and even income generated from the trust cannot be attached or garnished by a creditor of the beneficiary, giving you peace of mind that your estate will not fall to waste.
Our children have judgment creditors (i.e. credit card companies holding a judgment). How do we protect our estate from our children’s creditors?
Passing a substantial amount of property directly to your children who have outstanding bad debts or judgments can expose that portion of your estate passing to that particular child to that particular child’s creditors. The Texas Constitution and Texas Property Code provide for only limited protection for exempting assets from creditors. Therefore, if the amount of property that the child could potentially inherit exceeds the limitations, then it could very well be that the entire share of your estate passing to your child could be garnished or attached by the child’s creditor(s).
In this situation, it would be well worth investigating either an intervivos (trust set up during lifetime) or making provisions in your Last Will and Testament creating a Testamentary Trust to be managed by a Trustee and which provides appropriate language to protect the trust assets from being attached by the creditor, and which can benefit the beneficiary, your child in this example, for his health, education, maintenance, or support. It may not be completely necessary to disinherit the child and leave them nothing, but to plan accordingly so that your wishes are carried out the way you want.