If joint accounts are established with “rights of survivorship,” then they are not subject to the probate process. However, Texas law says that joint accounts are not created with right of survivorship unless the account holders specifically designate it when the account is created.
Unless you agree that the Trust is not revocable upon being made, any trust can be changed or revoked until your death.
Yes. Texas law allows the creator of a trust to serve as the Settlor, Trustee, and Beneficiary as long as certain requirements are met.
Yes, a power of attorney can be revoked at any time by the person who made it (assuming they have the legal capacity to do so). Revocations should be done in writing, and the revocation of the rights to make decisions 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.
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 you retain the right to make decisions which conflict with the agent you nominate assuming you have the legal capacity to do so.
Although you can, in our opinion, you shouldn’t. Crafting a high quality legal plan takes expertise and familiarity with applicable laws in your state.
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.
Though some 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” the prudent course of action would be to assume at your death the estate will be subject to a tax and, therefore, plan accordingly.
Technically, no. While there is no absolute legal requirement that says you must hire an attorney for this process, there are many benefits to utilizing an experienced, licensed attorney. With so much at stake – for you and your family – the modest investment required to hire an experienced estate planning attorney can give you peace of mind in knowing your documents are legally sound and prepared correctly.
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.
Under Texas law being the surviving spouse does not mean you can automatically avoid the probate process. Under a traditional deed in Texas, a home does not automatically transfer to the surviving spouse upon death. The same goes for cars, stocks, and other assets.
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.
If the deceased owned any real estate or other property that did not have beneficiaries named, then the Will must be probated in order to transfer titles to lawful heirs.
It’s best to speak to a probate lawyer and ask them. Typically, that lawyer is going to start by examining the Last Will and 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 that allow a simplified, independent administration of the estate.
When it comes to the distribution of your property, your estate plan only governs the assets that you own at the time of death. If you get sued, you may have to satisfy the judgment with assets that would have otherwise gone to your heirs or beneficiaries. Implementing an effective asset protection strategy can help you avoid this undesirable result.
Each case is different. Some cases involve a fairly simple legal process that requires only one court hearing and a few 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 deceased had in place. A licensed attorney can help you better understand how complicated your case may be.
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.
You have four years from the date of the decedent’s death to file the Will for probate. If the Will is never filed, the decedent is treated as having died without a Will, and the heirs determined under Texas law will be entitled to the decedent’s assets.
Like all contracts, state laws govern the rules for contract interpretation, application, and validity. Typically, courts will consider whether or not the contract was the product of fraud, duress, or undue influence and, in addition, whether the contract is clear and unambiguous regarding the agreements inside of it.
I’ve already granted Power of Attorney to someone. Can 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.
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.
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.
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.
Medical Powers of Attorney allow you to name someone else to make important health care decisions for you if you are unable to do so. In granting a Medical Power of Attorney, essentially you are naming someone else to make any medical decision you could make for yourself (if that’s what you want). Generally, such authority will allow your agent to make most decisions that you are able to now including consent for surgical treatment, blood transfusions, etc. By law, however, it does not permit an Agent to commit you for in-patient mental health treatment or consent to certain sensitive medical treatments such as convulsive care, abortion, or psychosurgery.
The powers granted under the Power of Attorney can be whatever you want them to be. While most clients are comfortable granting their trusted agent a high degree of authority, some clients simply want the power to cover bare minimum tasks like paying bills and dealing with creditors. Ultimately, the decision is up to you. If you don’t grant the authority in your power of attorney, the agent won’t have it.
Generally, such agreements are centered around marital property. In states that follow community property laws (such as Texas), it’s critically important to define if any member of the marriage has come into the marriage owning separate property. In addition, such agreements specify manners in which significant monetary gifts are made between spouses and the manner of determining community property.
“Intestate” means that a person died without a valid Will.
It depends. Consequences of dying without a formal plan in place may include costly and frustrating delays in Court as well as (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.
If you don’t probate a Will, then certain assets may not be properly transferred and may stay in the name of the deceased. For example, if nothing is done to formally transfer the title from the deceased to the heirs or beneficiaries, then the home will not be able to go up for sale.
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.
A C-Corporation is owned by shareholders, who must elect a board of directors that make business decisions and oversee policies. C-Corporations are generally required to report their financial operations to the state attorney general. A C-Corporation is considered to be an independent entity, and will not cease to exist when its owners or shareholders change or die.
A decedent is a legal term for a person who has died. Courts and court documents regularly use this word in place of the name of the person who has died.
An unincorporated business with two or more co-owners is referred to as a general partnership. All general partners take an active role in the firm’s management and are jointly and severally liable for the firm’s obligations.
A healthcare agent is a person you name in your emergency, critical, and advance care plan to make medical treatment decisions for you if you become too sick or injured to make or communicate those decisions.
A homestead is a place lived in and owned by an individual and not a company. It can be located on owned or leased land, as long as the person that lives in the home owns the structure.
An LLC is the simplest way of structuring your business to protect your personal assets in case your business is sued. An LLC can be owned by one or more people, who are referred to as LLC “members.”
A partnership in which no partner is liable for the negligent acts of any or all other partners or those of employee(s) not under his or her command.
A contract wherein an employee promises not to enter into competition of any kind with an employer after the employment period concludes. These agreements are designed to prohibit employees from revealing proprietary information or secrets to other parties during or after employment.
A legally binding contract that establishes a confidential relationship. NDAs allow businesses to share sensitive information without fear that it will end up in the hands of competitors.
A sole proprietorship is the simplest form in which a person can operate a business. It is not a legal entity, and simply refers to the person who owns the business. In a sole proprietorship, the owner is personally responsible for the business’s debts.
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. When done correctly, estate planning attempts to eliminate uncertainty and minimizes the potential for 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.
An an S-Corporation, the firm’s income is passed through its stockholders in proportion to their investment and then taxed at personal income tax rates. The “S” stands for small, so the company can have only one type of stock and only a limited number of stockholders.
Estate administration is a legal process where an estate is managed (such as settling claims, paying debt, distributing property) after an estate administer is approved by a court.
Guardianship is a legal process designed to protect vulnerable persons from abuse, neglect (including self-neglect), and exploitation through appointment of a responsible person to help with personal and/or financial decisions. Guardianship is a court-supervised process with considerable legal ramifications. 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 simply as Guardianship.
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 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.
In most contexts, the word “probate” refers to the legal process that deals with the assets and debts left behind after someone dies. By default, probate is supervised by a court, called the probate court. When someone dies with a Last Will and Testament, the probate process is used to prove the validity of a will. Depending upon the type of probate matter, most probate actions in Texas can be relatively simple and cost-effective.
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.
While a will can govern the distribution of all or a portion of a person’s assets after death, this is by no means the only function of a will. In Texas, wills are also used to:
- Name a personal representative or executor
- Provide funeral and burial instructions
- Provide the ability for heirs to disclaim their inheritance rights for tax purposes
- Provide the ability for personal representatives and executors to make tax elections
The specific situations in which your Advance Directive will take effect are outlined in the document. First, in a situation where you are terminally ill and expected to die within 6 months or [INSERT OTHER SCENARIO FROM DOCS].
Anyone who is at least 18 years old and of “sound mind” can create an Advance Directive.
When someone dies without a Will in Texas, the decedent’s “heirs” are entitled to the property of the estate.
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.
Some spouses believe that signing a Pre-Marital Agreement is a sign of mistrust or doom regarding the relationship. Nothing can be further from the truth. Having a Marital Property Agreement in place provides clarity, defines expectations, and is good planning.
Your living will remains effective as long as you’re alive unless you intentionally revoke it or the courts overrule it (a very rare scenario).