Frequently Asked Questions (FAQ)

Frequently Asked Questions Tops

Estate Planning Questions

What is an “Estate Plan”?

Generally, an estate plan is a formal legal strategy designed to anticipate and arrange for the care and disposition of a person’s property either at death or because of lifetime incapacitation. Typically, such plans include consideration of necessary legal documents such as Wills or Trusts, Powers of Attorney, Medical Directives and the nomination of guardians for incapacitated adults or minor children. Estate planning attempts to eliminate uncertainty and minimize negative effects on the estate (such as because of the payment of taxes or transfer of property to unintended beneficiaries). Estate planning may also include consideration of life or disability insurance, beneficiary designations (or payable on death designations) or re-structuring ownership of assets.

I’ve heard I definitely need a trust (in order to avoid the probate process). Is that true?

No, not every client needs an expensive or complex trust to best protect their family or implement an estate plan. Some clients, even wealthy ones, benefit from simple planning tools. Generally, the probate process in Texas can be much easier to deal with than in other states therefore the creation of trusts just to avoid the probate process is not necessary.

Do I really need a will?

Generally speaking, most people should have a will or other estate plan in place at their death to assist their loved ones in transitioning their property. Having a will allows the person making the will (known as the “testator”) the control of naming the person or entity getting their property. A will also allows the testator to nominate someone to serve as an executor or to expressly dictate someone who cannot serve as the executor.

What constitutes a will in Texas?

Generally, Texas law only recognizes two types of wills: (1) an “attested” written will which is typically drafted by lawyer, signed by the testator and witnessed by independent people who attest the proper execution of the will; and, (2) a “holographic” will which is a last will and testament written completely in the testator’s handwriting and which properly disposes of his or her property. Texas law no longer recognizes verbal wills.

I have a terminal illness. Should I make a will now?

Each situation is different. The law provides that only those individuals who have a certain mental capacity can execute estate planning documents. Typically a client who knows that his or her medical condition may worsen should promptly take action to ensure that their plan is implemented before any questions regarding their capacity arise.

I would like to hire you on behalf of my parent or loved one. Is that okay?

Occasionally we are asked to design an estate plan for someone other than the person who initially contacts us. While we welcome most clients, it is important to note that the person for whom we are drafting the plan is our actual “client” and therefore the individual who we have a professional responsibility for. Though you may seek representation on behalf of that person (and even pay for our services), our ultimate legal responsibility is to that person and therefore it will be necessary to take our direction from them.

Can I buy estate planning documents on the internet or at an office supply store?

You can, but you shouldn’t. Bluntly, people who purchase important legal documents from the Internet or an office supply store risk getting what they pay for. Legal documents are sensitive personal documents that should almost always be drafted and reviewed on your behalf by a licensed and qualified attorney.

What happens if I die without an estate plan?

It depends. Consequences of dying without a formal plan in place may include (i) lack of control regarding the disposition of your estate (state law will dictate who gets your property); (ii) lack of control as to who deals with your belongings after your death (iii) potential negative tax implications (*only for clients with substantial estates); and (iv) uncertainty by your family and loved ones as to whether they will be provided for in your estate.

Do I have to pay estate taxes when I die?

While it’s difficult to answer such a broad question in this context, the current United States federal estate tax calls for a 40% transfer tax of any amount transferred at death that exceeds the current exemption equivalent ($5 million, indexed for inflation). Therefore, if the value of your gross estate exceeds such amount then a tax may be due. Very few estates require the filing of a Federal Estate Tax Return or payment of an Estate Tax but if you feel the estate in question may owe a tax, you should promptly consult a lawyer or Certified Public Accountant because it is a time-sensitive matter.

Currently, I do not have a “taxable estate” but am close. What should I do?

Though different attorneys may respond to this question differently, a cautious approach would be to ensure your estate is properly planned to account for both future increases in wealth or a reduction in the federal estate exemption equivalent. In other words, if you are close to the threshold of being considered a “taxable estate” a prudent course of action would be to assume at your death the estate will be subject to a tax and, therefore, plan accordingly.

Divorce Estate Planning Questions

I am getting divorced. Should I do a new will now?

In most cases, the answer is yes. Texas law provides that when the divorce is final any estate planning you have done in favor of your ex-spouse is nullified. In other words, once the judge signs off on the divorce decree your ex-spouse is automatically removed from your Will even if you do nothing. However, that automatic removal only happens once the divorce is completely finalized and over. If you unexpectedly die while the divorce is pending (and thus not finalized) your soon-to-be ex-spouse is still your legal next of kin and the divorce action is dismissed. At that point, the person you were trying to divorce can still inherit from you, still collect life insurance and still control the disposition of your remains. For most people who are divorcing, they want to remove the soon-to-be ex spouse from their estate plan. Upon the filing for divorce, I recommend putting a simple, temporary estate plan into place that will prohibit your spouse from taking your assets upon death, serving as your executor or controlling your funeral. In most cases, such temporary plans are simple and relatively easy to do quickly.

I am getting divorced and previously gave my spouse power of attorney over my affairs. Can I revoke this?

Yes, you can revoke a previously executed power of attorney anytime. It must be done in writing and the best practice involves sending a formal notice to your spouse. You should speak to a lawyer about this.

I am getting divorced. My spouse and I previously executed a joint trust. Is this a problem?

While Texas law automatically removes an ex-spouse from a Will or life insurance designation upon the finalization of divorce, it does not automatically remove your ex-spouse as a beneficiary of a Trust or as your co-trustee. You should contact a lawyer to discuss this issue.

I want to name someone other than my ex-spouse as a guardian for my children if I become incapacitated or die. Is this okay?

Technically, you can nominate whomever you would like as a guardian for your minor children if you die. However, ultimately, the court has jurisdiction over guardians and natural or adopted parents are given a priority over other people you may name. While the court will consider your wishes, the court will also consider a number of other factors (including the wishes of the other parent and, ultimately, what is in the child’s best interests).

Trusts Questions

What is a “trust”?

A trust is a legal relationship where one or more persons transfer property to a trustee to hold and administer for the benefit of beneficiaries. While it is not strictly a legal entity, a trust is easily thought of like a company. The maker of the trust (sometimes known as the “Settlor” or “Trustmaker”) conveys money or property to a Trustee (like the CEO) who administers the assets of the trust for the benefit of the beneficiaries (like the stockholders). Trusts can be created for a number of purposes including tax savings, privacy, creation of unique or special estate plans, holding specific assets (such as real estate, art or a firearms collection) or simply because they offer the Settlor a level of certainty that other types of estate planning may not. The creation of trusts can be more complex than traditional wills and are not appropriate for every client.

Can I be the settlor and trustee of my own trust?

Yes. Texas law allows the creator of a trust to serve as the Settlor, Trustee and a Beneficiary as long as certain requirements are met.

Why is a trust better to have than a will?

A trust is not “better” or “worse” than a Will, it is simply different. Like tools used by a carpenter, trusts and wills have entirely different uses. While some law firms try to sell every client who can afford one a trust, regardless of wealth, not every client needs a complex (and expensive) trust. If a lawyer recommends that you create a trust, he or she should be able to explain in detail why you would benefit from such a trust.

Can I amend or revoke a trust once it is created?

Unless you agree that the Trust is not revocable upon being made, any trust can be changed or revoked until your death.

Why would I consider make an “irrevocable” trust?

Occasionally, tax benefits are created from making a transfer that the IRS considers as a “completed” gift. If you retain the right to own, possess or control assets the IRS may contest such a transfer to trust as incomplete and thus negate the tax benefits you were trying to receive. In many instances, the creation of an “irrevocable” trust ensures that the IRS considers the transfer as fully complete and therefore allows you to enjoy benefits of tax deductions, etc. Tax law is highly complex and unique to each situation.

If I am unable to serve as my own trustee, what happens?

Texas law allows for the possibility of a variety of different successor trustees. First, you may name a trusted family member, friend or professional advisor to serve as a successor trustee. Second, if you have not named anyone as a successor (or the successor is dead, fails or refuses to serve) the trust may provide that the beneficiaries may name a successor trustee. Third, a court of proper jurisdiction may name a successor trustee.

Should I consider a professional trust company to serve as my trustee or successor trustee?

In many cases, professional trust companies (such as bank trust departments or investment institutions) offer unique benefits that a friend, family member or other advisor just can’t offer. Such benefits include professional management of assets, resources and advice that are commonplace in larger companies but not necessarily readily available to individuals. In most instances, professional trust company management is more suited to larger estates or estates with unique assets. Many smaller estates benefit more from the less expensive, personal management of a family member, friend or trusted advisor.

I am the beneficiary of a trust and want information from the trustee. Do I have any rights?

Yes. Texas law provides trust beneficiaries with certain rights to information about the trust and the Trustee’s management of the assets. If the Trustee fails or refuses to provide the information as required by law, it may be possible to bring a legal action against them to compel the information or to remove them as Trustee.

I believe the trustee is mishandling the asset of the trust. What can I do?

The first step is to have an attorney review the trust document to see what mechanisms are in place to deal with questions of this nature. Beneficiaries who believe trust property is being mishandled may consider an accounting to verify the amount, nature and location of trust assets. In addition, beneficiaries may request a court order a Trustee to post a bond to secure the assets of the Trust or, in severe cases, petition the court to remove the Trustee from office.

The trust has declined in value because of bad investments. Can I sue the trustee for this?

Maybe. If the Trust generally has a positive track record of investment returns, a single (or even several) “bad” investments will not serve as a basis for a lawsuit against a Trustee. If, however, the Trustee has a track record of repeatedly investing in imprudent investments, you may have legal justification to remove the trustee or sue for damages.

Can I compel a trustee to make a distribution of trust assets to me?

It depends. If the Trust gives the Trustee total discretion in determining when distributions are made then you will likely have to live with the decisions of the Trustee. If, however, the Trust document provides specific criteria for the Trustee to determine when distributions are made then the Trustee should closely follow such criteria. If they are not, you may be able to compel a distribution.

I am a trustee. What are my legal duties?

First, if you have not already, you should hire a licensed and qualified lawyer to review the trust and advise you in detail regarding the general duties of a Trustee and any specific duties imposed by the Trust.

I am a trustee and have received a demand for accounting or information. Do I really need to respond to this?

Yes. Texas law provides certain rights to information to beneficiaries of trusts. Your failure to completely or promptly provide information may serve as a reason for your removal from office as a trustee or as a basis of a lawsuit against you. You should consult a lawyer as soon as possible.

I am a trustee. What kind of records should I keep?

In short, keep records of everything. Keep detailed, complete and accurate records of all banking accounts, investments, correspondence, real property, expenditures, etc. If the Trust estate is sizeable, you should consider hiring a Certified Public Accountant to keep the books of the Trust.

Does a trust need to file an income tax return?

It depends. Just as an individual who receives income must file an income tax return a trust may need to as well. Sometimes the Settlor (or “Grantor”) of the Trust may include trust income on his/her income tax return. You should consult a licensed and qualified attorney or Certified Public Accountant regarding specific tax questions.

Probate & Administration of Decedent Estates Questions

What is “probate”?

In most contexts the word “probate” refers to the legal process of having a Last Will and Testament given legal effect by a court and the process of administering the assets of a decedent.

Generally speaking, what is involved in the probate process?

It depends and each case is different. Some cases involve a fairly simple legal process that requires only one court hearing and some legal filings. Other cases, however, require extensive court involvement and considerable effort. Typically, the difference involves the type and extent of the estate plan the decedent had in place. You should contact a licensed attorney to discuss your case.

My loved one just died. What should I do?

Review our Texas Probate Checklist on our forms page.

I’ve heard horror stories about probate. Should I be worried?

Although some states have very onerous and cumbersome legal processes for probate, fortunately, Texas does not. In Texas, the vast majority of probate proceedings are done without excessive court supervision or involvement. While some cases can go on for lengthy periods of time or involve a lot of court involvement, if the deceased person had a good estate plan in place the odds are that it will not be a difficult process.

How can I know if my deceased loved one’s probate will be easy or difficult?

Bluntly, you go speak to a probate lawyer and ask them. Typically, that lawyer is going to start by examining the Last Will & Testament of the deceased and ascertaining whether the Will allows for “Independent Administration” or administration that is “free from court supervision”. If it does, then it is likely the probate will be a simple process. Even if it does not, however, there are sometimes still options which allow a simplified, independent administration of the estate.

I believe my loved one has stored his/her will in a safe deposit box. Is there a process to obtain entry into it?

Yes but certain restrictions apply to the bank. It is typically recommended that you consult a lawyer beforehand who can guide you through the process and assist you in dealing with the bank.

I already have access to the deceased’s bank accounts so I may decide not to probate the will. Is this okay?

Maybe. While it may make sense in the short term to avoid probate of the Will you should also consider the big picture. If the deceased owned real estate that is in his/her name, you should consider probating the Will now even if you do not plan to sell the property for some time in order to clear title to the property. Texas law provides that, in most cases, the Will must be probated within four years of the date the decedent died. Probate may still occur thereafter but it is a more complicated (and thus costlier) process. Usually, if there will be any need to probate the Will or administer the estate, it is better done sooner rather than later.

How long do I have to probate a will in Texas?

Generally speaking, a Will must be probated within four years of the date the deceased died. While probate may still be possible thereafter, it can be a more complex process. If you believe you may offer the Will for probate ever, it is the best practice to do it as soon as possible after death.

I have not been appointed as the personal representative of an estate by a court. May I sell or give away my deceased love one’s property?

No. Do not sell or give away any of the decedent’s property (real or personal property) unless you have been appointed as the Personal Representative of the Estate and have the legal authority to do so (*such legal authority may need to be granted by the court). Once appointed, you may have the authority to do so.

As an executor or administrator of an estate, do I have the power to sell the deceased’s real property without a court order?

In some cases, you may. You should wait until a licensed and qualified lawyer has reviewed the estate and advises you. If you are selling the property to pay funeral expenses, expenses of administration, expenses of last illness or to satisfy claims against the estate you may do so. If the real property is not being sold for one of these reasons then you must have specific authority to do so either granted through the Will or because all of the beneficiaries of the estate agree. Many Wills provide for the executor the authority to sell property (but some do not).

If I am not named as the executor of a will, may I apply to be the executor?

Theoretically, anyone can “apply” to be the Administrator of an estate. It is important, however, to know that Texas law gives a legal preference to certain people (i.e., a person named as executor of the estate, a spouse, principal beneficiary of the estate, creditor, or anyone else who the court finds acceptable).

What happens if the executor named in a will is dead or refuses to serve?

Texas law has mechanisms in place that allow for a person other than whom is named in a will to serve as Personal Representative of an estate. If a proposed executor has died or is unwilling /unable to serve, the law allows for the approval of other individuals who the court finds acceptable.

Who is disqualified from serving as the personal representative of an estate?

Anyone who is under the age of 18, has been declared to be mentally incapacitated or has been convicted of a Felony cannot serve as the personal representative of an estate. In addition, the court is empowered to deny the application of any person it finds unacceptable for any other reason.

Can a lost will be probated?

Yes, assuming that certain facts (including the contents of the Will and the cause of its non-production) can be adequately proven to the court, an applicant may admit a lost will to probate.

Is it possible to admit a will to probate that isn’t a formal document drafted by a lawyer?

Possibly. Texas law allows the probate of “holographic” or hand-written wills if they are completely in the handwriting of the deceased.

I have been named as an executor or administrator of an estate. What are my duties?

In all likelihood you already have an attorney. You should speak to that person for detailed instructions. If, however, for some reason you do not the very first thing you should do is consult a licensed and qualified lawyer about the legal duties imposed upon you. While many duties are the same in every case, some cases require additional levels of court supervision or involvement that will expand your duties. Until such time as you receive specific advice from your lawyer, you should refrain from distributing or using any money or property of the estate and you should maintain detailed records regarding the assets that are in your possession or under your control.

Someone told me I need to obtain “letters testamentary”. What is this?

Letters Testamentary (or Letters of Administration) are documents issued by the court to prove that you are the legally appointed and authorized personal representative of the estate. Many banks and creditors will not deal with you regarding an estate or its assets until you can provide such letters to them.

May I represent myself in an application to probate the will or do I need a lawyer?

In all likelihood, the court will not appoint you unless you have a lawyer representing you in the case. Even if the court will allow you to do so, however, you should not. A man who represents himself has a fool for a client.

What takes place at the court hearing for my application to probate?

In most cases, if you are the person named in the Will as the executor then the hearing will be a quick and simple process. You will be placed under oath to testify, your attorney will ask you about a dozen basic questions (usually related to the deceased, the fact that they have died and your relationship with them) and the court will make certain legal findings on the record. Assuming you are appointed as Personal Representative by the court, you will be asked to sign a written record of your testimony, sign a written oath and post a bond (if required) before Letters Testamentary will be issued to you.

What is a “bond” and will it be required?

A probate bond is a bond issued to secure the performance of an administrator or executor of an estate, and its purpose is to protect heirs and creditors from being harmed by the negligence or malfeasance of the administrator or executor. While most Wills that provide for “independent” administration of an estate (i.e., non-supervised) waive the requirement of an executor posting a bond, a court may always require any executor or administrator to post one. If a bond is required, you will fill out an application with a company authorized by law to issue probate bonds and, if approved for the bond, be required to pay a premium. In this regard, a bond is similar to an insurance policy (though not strictly the same thing).

What is an “inventory, appraisement and list of claims”? Do I need to file one?

An “Inventory” as it is commonly known is a legal document which an executor is required to file with the court after he/she is appointed as the Personal Representative of the estate (in other words, after the court admits the Will to probate). The document typically lists the various assets of the deceased, provides a value of such assets and provides a list of claims which they estate has against any person or entity owing it money.

I had a power of attorney over the deceased person. Can I just use that to deal with the estate?

No. Every Power of Attorney terminates at the death of the principal who made it.

Will I be personally responsible for the debts of the deceased person if I am the executor?

Generally, no. As long as you did not personally guarantee the debt yourself or you have not taken or accepted assets of the estate you will not be personally liable for the debts.

If I am the executor, do I have to give any kind of legal notice to creditors?

Yes. The executor is required to publish notice in a newspaper once and to file an affidavit with the court establishing that it was done. In addition, the executor is required to send a specific notice to any secured creditors within two months of being appointed. Finally, you may (but are not required) to send specific notice to unsecured creditors (which may be a good idea since the law provides that unsecured creditors only have a certain period of time from receiving the notice to file a claim. If they fail to do so within a certain time, their claims against the estate are barred).

Is the executor required to pay the debts of the deceased person?

The law generally requires that debts be paid before the rest of the estate is distributed to beneficiaries. There are certain exceptions (especially related to the deceased’s homestead and close family) but you should generally plan to pay or settle debts of the deceased from their estate prior to handing it out to beneficiaries.

I am an executor/beneficiary of the estate and would just like to take my inheritance without paying the creditors. How bad can it really be if I do this?

In short, it’s a bad idea. While you may be tempted to try and keep the assets of the estate without settling the debts of the deceased person if you do you could face severe personal liability for the debts. You could personally face legal action and negative consequences.

I am a beneficiary of an estate and the executor refuses to give me information. Is this legal?

In most cases, no. Beneficiaries of estates have certain rights to information as well as eventual rights to distributions of the assets to which they are entitled. Likewise, executors are not required to distribute the assets to a beneficiary just because the beneficiary makes demand upon them. Because each case is unique, you should speak to a licensed and qualified attorney to discuss your case.

I think I am a beneficiary of an estate but the person who has the will refuses to show it to me. Is there anything I can do about this?

Yes. Under Texas law, a person in possession of a Last Will should deposit the Will with the probate clerk of the county within 30 days of the deceased’s death. If they fail to do so, the court can order them to do so at which time the will can be viewed by anyone.

Probate & Trust Litigation Questions

What is “probate or trust litigation”?

While many estates are uncomplicated and resolved with relative ease, occasionally legal fights break out between loved ones, heirs to estates, creditors and other property owners. When this happens related to a deceased person’s estate, the parties will often litigate the matter in a court of law. Such cases include a variety of different issues but some of the most common involve claims that a deceased person did not have the requisite mental capacity to execute a Last Will or Trust, that someone unduly influenced the deceased person regarding the Will or Trust, that a beneficiary or heir is not being given information or distributions or that someone stole from the estate or a fraud has been committed.

A fight is breaking out over our loved one’s estate. What should I do?

First things first, go speak to an attorney who practices probate litigation (our firm does). Be prepared to explain to the attorney generally what has happened, who is involved and what their claims are. You should do so immediately before doing anything else.

I’ve been served with legal papers saying I have been sued. What should I do?

In short, you should speak to an attorney immediately. When you are served with a lawsuit, the situation is time sensitive and you must take action immediately. If you fail to act within the time allowed by law, you risk having a judgment taken against you or otherwise being negatively affected by your failure to promptly act.

How expensive is probate or trust litigation? How long does it last?

These are the two most commonly asked questions when clients first speak to a lawyer about their case. Bluntly, the answer to each is “I don’t know”. Various factors exist related to the cost and lengthiness of a litigation that can affect both. Some of those factors relate to the complexity of the issues involved, the manner in which the other party or parties litigate the case and when the court will hear the case.

Can we decide to settle our case or do we have to litigate?

While each case is different, the majority of all civil legal actions that are filed eventually settle before trial. Because there are no guarantees that your case will settle, it is prudent for your attorney to prepare the case to be decided in court. In almost every case, the attorneys and parties will eventually consider discussion of settlement options and/or mediation (a formal negotiation meeting to discuss settlement). Depending on the case, occasionally the court will need to approve a settlement between parties.

Guardianship Questions

What is “guardianship”?

Generally, Guardianship is a legal process designed to protect vulnerable persons from abuse, neglect (including self-neglect), and exploitation through a court-supervised administration. Guardianship provides for the person’s care and management of his or her money while preserving, to the largest extent possible, that person’s independence and right to make decisions affecting his or her life. In Texas, there is a separate guardianship created related to the care of the person and another created for the care of a person’s financial estate. In some states, this process is called a Conservatorship but in Texas it is known as Guardianship.

What is the difference between guardianship “of the person” and “of the estate”?

Guardianship of the Person generally allows the guardian to make decisions related to the care, custody and control of the incapacitated person (with some restrictions). For example, the guardian of this type of guardianship will commonly be allowed to make certain decisions related to the medical care of the ward or where the ward resides. In contrast, Guardianship of the Estate allows the guardian to possess and (with some restrictions) control the assets of the ward. For example, if given the authority by the court, a guardian of the estate may be entitled to invest the ward’s money in a mutual fund account.

Why may a guardianship be necessary?

Guardianship can be necessary for a number of reasons. First, a child (who does not have legal capacity) may be in need of a guardian to assist them in certain aspects of their lives and not have a parent or natural guardian capable of performing the duties. Second, because of physical illness or injury, an adult may need the assistance of someone else in various aspects of their lives. For whatever reason a person may need assistance, the Guardianship process exists in the law to allow family members, loved ones or other appropriate persons the ability to step forward to assist the person who is incapacitated.

Who may have a guardianship created against them?

Either a minor or “incapacitated person” may have a guardianship taken against them. A minor is legally defined as anyone under 18 years of age; an incapacitated person is legally defined as an adult who, because of physical or mental condition, is substantially unable to provide food, clothing or shelter for himself or herself, to care for his or her own physical health, or to manage his or her own financial affairs.

How is a guardianship created?

The creation of a guardianship is a very specific legal process that should only be undertaken with the help of a qualified attorney. Generally, a person who wishes to apply for guardianship over another person files an application in a court that hears guardianship cases. The application cites the necessity for the guardianship, explains to the court the nature and degree of the proposed ward’s incapacity, the qualifications of the proposed guardian and other pertinent information. After the application is filed, a court investigator (who, in larger counties, is an employee of the court) investigates whether a less restrictive alternative is available which would allow the ward to keep his/her civil rights and still be cared for. During that time, an Attorney Ad Litem is also appointed by the court to represent the interests of the proposed ward in court. After all parties have been served and the applicant is ready to proceed, a hearing is held so that the court may consider all of the relevant evidence and rule on the application. If the proposed ward is an adult, the incapacitation must be proven by clear and convincing evidence (a high standard of proof) and must involve the use of a certificate from a physician confirming the incapacity.

Does the proposed ward need to be involved in the process?

Texas law requires that the proposed ward be served with a copy of the application for guardianship and, if at all possible, attend the hearing on the application. Though the requirement that the proposed ward be served may not be waived, the court may consider a request that the proposed ward not be required to attend the hearing.

What are the implications of being declared “incapacitated” by the court? Does this have to happen for a guardianship to be created?

In order for a Guardianship to be created by a court, the law requires that the court find the ward “legally incapacitated”. Such a declaration has several direct and indirect implications on the ward. First, upon the guardianship being created, many of the civil rights of the ward are removed and placed upon the guardian. For example, if a guardianship of the ward’s “person” has been created, the ward may no longer get to decide where he/she lives or consent to his/her own medical treatment. Second, the order of the court may restrict other of the ward’s rights such as having a license to drive a car or be able to vote in an election. Finally, though not directly related to the guardianship proceeding, a ward may experience various other restrictions or implications (e.g., not being able to have a Texas Concealed Handgun License, Hunting License or professional license).

Who is likely to be appointed a guardian?

Only if the court decides that a guardian is necessary, will a guardian be appointed. If one is, Texas law provides a list of persons who will have a priority in being appointed guardian. For example, if a minor is the subject of the guardianship the order of priority would be as follows: (i) parents (ii) person named by last surviving parent as a guardian (which must be done in a specific legal form); (iii) the nearest ascendant in the family tree; (iv) next of kin; (v) a non-relative. For an adult person who is incapacitated, the priority is as follows: (i) a person who the adult has named in a properly executed designation (which must be in a specific legal form); (ii) in some limited cases, a person who the adult’s last surviving parent named as guardian (which must be done in a specific legal form); (iii) the ward’s spouse; (iv) the ward’s next of kin; (v) a non-relative. Texas law provides that a person is disqualified and ineligible to be appointed guardian if he or she is a minor; a person whose conduct is notoriously bad; an incapacitated person; a person who has certain conflicts of interest with the ward; a person who, because of inexperience, lack of education, or other good reason, is incapable of properly and prudently managing and controlling the ward or the ward’s estate; a person found unsuitable by the court; a person specifically disqualified from serving as guardian by the ward prior to his or her incapacity in a properly executed designation of guardian; and a person who is not a resident of Texas and who has not designated an agent in Texas for service of process. Because of these priorities, it is important for an adult individual who is worried about his or her possible future incapacity to consider designating those persons he or she wishes to serve as guardian and those persons he or she wishes to disqualify from serving as guardian, especially if a non-relative is preferred. Our office can assist you with any such designation.

What is a guardian required to do?

While including a comprehensive list of duties in this format is not possible, the duties of a guardian can generally be described as caring for the ward in the context that the court orders. In other words, if the court appoints you to be guardian of the ward’s estate, you will be charged with maintaining, caring for and prudently spending the ward’s resources as the court allows. You will be required to keep detailed records and obtain court approval for certain things. In addition, if the guardianship is created you will also be required to file accountings every year with the court detailing your activities. If you are named guardian of the ward’s person, you will be responsible for establishing the domicile of the ward, ensuring that their physical needs are met, that they are cared for and protected and generally ensuring that their daily needs are met. A guardian of the person must also file annual reports with the court detailing his/her activities, the condition of the ward, etc. Both guardians of the person and estate are fiduciaries of the ward and must maintain high legal standards with respect to their care for the ward and/or his property.

How long does a guardianship last? Is it permanent?

It depends. The law basically provides that a guardianship should only last as long as it is needed. If the ward is a minor and a guardianship is created because they are a minor, the guardianship will be terminated when the ward reaches legal age. If the guardianship is created because the ward is incapacitated, the guardianship will go on as long as the court deems it to be in the best interests of the ward. If the ward recovers to a point that the court no longer believes the guardianship to be necessary, the court may terminate the guardianship and restore the ward’s legal rights.

Are there alternatives to guardianship? What are they?

Yes and, bluntly, if you can do something else you should. Guardianships are expensive and fairly time consuming legal processes that require a lot of work from the guardian. If your loved one still has the capacity to execute disability planning documents they should consider doing so. Such documents may include Powers of Attorney (which can be for medical decision-making or related to finances/property) or Trusts. If you have questions about these alternatives or whether your loved one has the legal capacity to sign them, you should speak to a qualified attorney.

Do I have to establish a guardianship to care for my child?

No. Texas law considers natural or adopted parents to be the natural guardians and therefore no guardianship is necessary. If your rights to your child were restricted by a court because of a divorce then any change to the court’s order regarding possession must be done through the court.

I am divorced. Can I still designate a guardian for my minor child in estate planning?

Yes. In an estate planning context both parents should designate someone to care for their minor children if they die. However, it is important to know that (i) if your ex-spouse survives you and the court considers them okay to take possession of the child they will likely be awarded custody and (ii) the court is not required to follow your designation in any event. In considering who cares for a minor child (including a guardianship context) a court will always consider what is in the best interests of the child.

My child is entitled to receive some money. Do I need to establish a guardianship?

It depends. Sometimes minor children are left money from a relative or are entitled to insurance settlements for injuries. When this happens, the money must be held by a fiduciary for the child under court supervision. This can occur in a variety of ways including guardianships, court-created trusts, annuities or even deposits into the court registry (i.e. the court’s bank account) to be held for the minor. The best course of action often depends on how much money is involved and the circumstances. You should speak to a qualified lawyer who can explain your options.

Powers of Attorney Questions

What is a “power of attorney”?

In general, a Power of Attorney is a document in which a person names someone else to take some action (or be entitled to take some action) for them. Powers of Attorney can be general (meaning most decisions can be made under them) or limited (meaning the power is effective only for a limited purpose). In Texas, there are generally two types of Powers of Attorney commonly used: a “general” power of attorney which allows the agent to make property-related decisions for the principal or a “medical” power of attorney which allows the agent to make health-care decisions for the principal. The person making the power of attorney may designate whether the power is effective immediately or upon their subsequent incapacity.

What decisions can be made under a general durable power of attorney?

Most property or financial decisions can be made under a General Durable Power of Attorney unless the principal (i.e. the person making the power of attorney) restricts the agent from making a certain decision or type of decisions. For example, if the principal intended that the agent be able to make every type of decision that the principal can make, the power of attorney would be unlimited and considered “general”. If, however, the principal wanted to restrict the agent from selling real property, that power could be removed and therefore the agent would not be allowed to make such decisions.

What decisions can be made under a medical power of attorney?

A Medical Power of Attorney allows you to name someone else to make health care decisions for you if you are unable to do so. Generally, a Medical Power of Attorney will allow you to make most decisions that you are able to now including consent for surgical treatment, blood transfusions, etc. It does not permit an Agent to commit you for in-patient mental health care or consent to certain sensitive medical treatments such as convulsive care, abortion or psychosurgery.

Why do I need a power of attorney?

Right now, you may not. You may have the ability to make all your financial and health care decisions necessary in your life. However, if you suddenly become incapacitated or injured a power of attorney allows a person you trust to make sensitive (and sometimes time-critical) decisions for you without having to take complicated or costly legal action.

Can I still make decisions if I have executed powers of attorney?

Yes. Even if you nominate someone else to make decisions for you (whether the power becomes effective immediately or upon disability) you still retain the power to overrule any decisions you wish. A power of attorney is not a guardianship and therefore retain the right to make decisions which conflict with the agent you nominate.

Can I revoke the power of attorney?

Yes, a power of attorney can be revoked at any time by the person who made it. It should be done in writing and the revocation of the rights to make decision should be adequately communicated to the person who previously held the power. Additionally, if the person who has made the power of attorney is no longer capable of revoking the powers but there is evidence of malfeasance, a court of competent jurisdiction may suspend the powers as well.

If my power of attorney says it is effective upon my incapacitation, how is that decided?

Generally, and unless stated otherwise in your Power of Attorney, your attending physician must certify in writing that you lack the ability to make decisions for yourself.

I’ve already granted power of attorney to someone. Can’t they make medical decisions for me under that document?

If you have merely executed a power of attorney for financial or property decisions, the answer is no. You must execute a different form to grant someone the power to make health care decisions for you.

Billing Information & Policies

Our firm is dedicated to total transparency, fairness and, whenever possible, predictability in our fees and fee structure. Though the firm’s charges vary by service, in many instances we employ a flat fee for our time. Generally, this means that at the outset of the representation you will know with clarity what the total attorney’s fees will be in the case. Typically, we employ such flat fee structures in most estate planning matters, simple probate and administration matters, guardianships and the formation of business entities.

In some cases, flat fees are not suitable for either the attorney or client. Cases involving litigation, significant expenditures of time or unique matters will likely be charged by the hour. Hourly rates vary by attorney and can be modified by the firm to be consistent with the type of representation.

In most cases, upon being retained by our client, the firm will collect either the flat fee for services or a retainer (deposit) that will be used to secure any hourly charges or expenses. In the vast majority of cases, representation will not begin until such fees are collected.

In order to ensure our clients are fully and consistently aware of charges against their account, the firm sends monthly billing statements and accountings to each client. In most cases, such billing statements are simply mailed to the client though, upon request, they may be faxed or emailed.

In addition to the attorney’s fees charged in a client’s case, most cases will necessitate some measure of non-attorney expenses. Such expenses may consist of administrative costs (e.g., copying, document production, couriers or postage) or litigation-related court costs (e.g., clerk’s filing fees, mediation expenses, expert witness fees, etc.). Per our Client Engagement Agreement, clients are required to pay such expenses in addition to the attorney’s fees paid to the firm for services of attorneys or legal professionals.

Important Note: The information presented on this page is general information to help prospective clients understand our compensation and billing policies. Specific fees and terms of our services are contained in our Client Engagement Agreement which is executed by the Attorney/Firm and Client upon creation of the attorney-client relationship. Prospective clients wishing to retain the firm’s services will be provided such written Fee Agreement in advance of commencement of the relationship detailing the specific terms and costs of our services.

Your “ideal client” page seems to imply that you will not service clients unless they are very wealthy. Is this true?
Not necessarily. Though the “ideal client” section of our website describes a person or family with the attributes we have found most suited to our services, our law firm has represented a vast array of clients from various backgrounds and wealth levels. Each legal matter is unique and our services are specifically tailored for each client. We encourage potential clients to contact us regarding their matter. If we do not feel our services or fee structure is best suited for you, we will notify you.

Estate Planning Process in our Office

While each client may have unique, specific or custom needs for their plan, the process we follow is typically very similar to others. In most cases, our clients begin the process with a consultation with Mr. Parvin to discuss the composition of their estate and planning goals. During this meeting, clients provide us with the information we need to evaluate their unique needs and those of their family. By the end of the initial consultation, Clients have a clear picture of the strategies and tools Mr. Parvin suggests for their specific plan. For clients who decide to retain the firm to draft their estate plan, we will thereafter create the specific plan suggested by Mr. Parvin for the client that best protects the client and his or her estate. Finally, upon completion of the plan, the client will again visit our office for a final meeting wherein Mr. Parvin will personally review the documents with the client and, upon acceptance by the client, execute the plan. Typically, the client leaves the last meeting with signed copies of their legal documents.

If I hire you to draft my estate plan, what documents are included?

It depends. Each client has different needs and, ultimately, it is up to that person to determine what they want to execute. We customarily recommend a client’s plan including a will and/or trust, powers of attorney (financial and medical), health care information release, medical directive (also known as a “Living Will”) and declaration to appoint a guardian (for incapacitated adults or minor children).

I would like to hire you on behalf of my parent or loved one. Is that okay?

Occasionally we are asked to design an estate plan for someone other than the person who initially contacts us. While we welcome most clients, it is important to note that the person for whom we are drafting the plan is our actual “client” and therefore the individual who we have a professional responsibility for. Though you may seek representation on behalf of that person (and even pay for our services), our ultimate legal responsibility is to that person and therefore it will be necessary to take our direction from them.

I don’t live in the Dallas area. Can you still help me?

If you live in the State of Texas or own any property here (whether real property or not), we can likely assist you. In certain circumstances we will work outside of the State but may require local counsel to assist us.