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Text Box: Here are some frequently asked questions regarding Wills, Trusts, and Probate Please click on the question to be forwarded to the corresponding answer: Common Questions about Wills
Common Questions about Trusts
Common Questions about Probate

What is a will?

Who can make a will?

Who needs a will?

Can I write my own will?

Is it expensive to have a lawyer prepare a will?

What information to I need to give my lawyer if I want a will?

What is a living will?

What is a trust?

Should I have both a will and a trust?

What are the two (2) primary types of trusts?

What is a family trust/living trust?

What is a special needs trust?

What are the benefits of advantages of a trust?

What effect does a trust have on the beneficiary's creditors?

Do I really need a trust?

What is Probate??

Is Probate difficult?

When should the will be probated?

Must a will be probated if the estate is less than $1,000,000? Are insurance proceeds included in that total?

I am named as the executor/executrix of a will. What do I do?

What will happen to my property if I die without a will?

What if the original will cannot be found?

Why should a will be probated?

Are there any assets that can be handled outside of probate (Non-probate Assets)?

What will happen to any children if I die without a will?

Text Box: Answer: A will is a legal document that allows you to decide how and to whom your progeny will be distributed after your death. To be effective, the will must he properly drafted, executed and notarized. __________________________________________________________________________________________________________________________________ Answer: Anyone who is at least eighteen (18) years old and of sound mind can make a valid will. A married couple under the age of eighteen (18) can also make a valid will. __________________________________________________________________________________________________________________________________ Answer: Almost everyone needs a valid will. The only exceptions would be people who are not married and have no children and who do not leave a large estate. Even for those people, there are advantages in making a will to simplify the disposition of the property you leave. __________________________________________________________________________________________________________________________________ Answer: Yes, but it can he very dangerous to do this without a lawyer. The laws of the state of Texas are quite strict regarding what is and is not a valid will. If your "homemade" will is declared to be an invalid will, your property may go to people you did not want to have it. Remember, you will not be around to explain to the judge what you really intended. __________________________________________________________________________________________________________________________________ Answer: A proper will can be surprisingly inexpensive, especially if a husband and wife prepare one at the same time. The real expense usually is in dying without a valid will. That can possibly create a financial nightmare for the surviving family members. Almost everything the family will have to do after a death is more expensive to do without a valid will. By spending a small amount of money now, you may save your family thousands of dollars and hours of frustration and aggravation later. __________________________________________________________________________________________________________________________________ Answer: Your lawyer will need your family details, such as your current marital status, the names and ages of children and other such information. You then must choose a guardian. This is the person who will take care of your children in case you and your spouse die before your children become adults. The guardian will raise your children and manage their money. You also decide who your beneficiaries will be. These are the persons or organizations who will inherit your estate. Your estate consists of all the property you own, both real estate and personal property, such as jewelry and automobiles. If you plan to leave property to your children, you will need to decide at what ages the children will actually receive the property they inherit (called a "testamentary trust"). You may have specific property you want to bequeath to specific beneficiaries (called a "specific bequest"), as well as a beneficiary to take any property you may have an interest in not specifically identified (called a "residing beneficiary"). Next, you must choose an executor/executrix. This is the person or institution that collects your property, pays your debts and taxes and makes sure your property is properly given to your beneficiaries. __________________________________________________________________________________________________________________________________ Answer: A Living Will (also known as a Directive to Physicians, Surrogates and Next of Kin) is a legal document that allows you to tell doctors and hospitals in advance that you do not want to be kept alive on support systems if there is no hope of a recovery to a normal life, but that you do want to be as comfortable as possible. A Durable Power of Attorney for Health Care Decisions is a legal document that allows you to designate an agent (usually a relative or a close friend) to make health care decisions for you if you should become either physically or mentally unable to make such decisions for yourself. A Statutory Durable Power of Attorney is a legal document that allows you to choose a person to make any nonmedical decisions for you and to sign your name to other legal documents. This is normally used when a person becomes mentally or physically incompetent, but it must be prepared and signed before that person becomes incompetent. This document provides that your Power of Attorney does not become effective until and unless you become incompetent or incapacitated. These three legal documents, together with a valid will, will make life much easier for your spouse, children, other relatives and close friends should you become incompetent or die. Without these important documents, the loved ones you leave behind will not only have to deal with their grief but also with unnecessarily complicated legal matters. __________________________________________________________________________________________________________________________________ Answer: Generally, a trust is a document which creates a legal relationship between the person creating the trust, the trustee (who controls or manages the trust payments) and the beneficiary (the person(s) for whose benefit the trust was created). A trust is another method to legally control the distribution of a person's estate either during life or after death. There are numerous types of trusts created for a variety of purposes, such as a family trust or a special-needs trust. Trusts are substantially more expensive than wills and require periodic reviews by an attorney to ensure assets have been properly transferred to or removed from the trust and to consider any change in the trust or tax laws. __________________________________________________________________________________________________________________________________ Answer: A trust, no; a will, yes. A trust consists of only those assets that have been specifically transferred to the trust. In the event a senior should die without a will and not all of his/her property was transferred to the trust, a will is necessary to provide for the distribution of any of your estate assets that have not been transferred to the trust. __________________________________________________________________________________________________________________________________ Answer: There are two basic trusts established for the purpose of distributing a settler's estate: a discretionary trust and a support trust. A discretionary trust authorizes the trustee to pay only so much of the trust principals, corpus or interest accruing on the trust assets to the beneficiary as the trustee sees fit. The beneficiary has no control over these types of trusts. A support trust directs the trustee to pay the beneficiary a stated amount, or as much as necessary for the health, education or welfare of the beneficiary. __________________________________________________________________________________________________________________________________ Answer: The terms "family trust" and "living trust" are interchangeable. Both refer to a revocable trust, which simply means the senior retains control of the trust property even though legal title is transferred to the trust. A family trust typically limits beneficiaries to members of a family or group. __________________________________________________________________________________________________________________________________ Answer: Special-needs trusts are created for physically or mentally incapacitated beneficiaries. Such trusts may also be utilized to avoid such beneficiaries losing government-assistance benefits (i.e., Medicaid). Special-needs trusts are frequently used to administer benefits received from inheritance or personal injury settlements. __________________________________________________________________________________________________________________________________ Answer: ~To avoid probate (usually, but only concerning property transferred to the trust);
~To provide protection front creditors for the beneficiary (if property drafted);
~To provide continued control by the settler of the trust property (applicable to revocations trusts only);
~To provide for a handicapped person's recurring government-based aid;
~To avoid appointment of a court-appointed guardianship in the event of your incapacitation or incompetence. (However, a Durable Power of Attorney may accomplish the same goal and is substantially more economical to create);
~To hold estate assets, which are to be distributed to minor beneficiaries, under general or specific distribution instructions until the minor attains a certain age. (however, a testamentary trust provision in a valid Will may accomplish the same goal and is substantially more economical to create);
~To avoid the cost and complexity of probate proceedings in multiple states if the settler has real estate in more than one state (this is probably the most credible reason for creation of a trust); ~Trusts are generally more difficult to contest than wills. However, a trust can also be attacked for various reasons as to its creation and interpretation of its provisions. __________________________________________________________________________________________________________________________________ Answer: Most trusts are created with a spendthrift provision, which means the trust assets cannot be reached by a beneficiary's creditors. This is one of a trust's primary attributes. __________________________________________________________________________________________________________________________________ Answer: I am not an advocate of family trusts or living trusts. The vast majority seeking these types of trusts actually do not need them. Trusts are generally more expensive than wills and require additional efforts to transfer property into the trusts and to maintain them as property is removed from and transferred into them. The primary reason people seek trusts is to avoid probate, but that is generally not of great concern in Texas. Texas has one of the most simple and straight-forward probate administration processes in the country. If you have a valid will which provides for the appointment of an executor who is to serve without bond, the administration process maybe as simple as filing a petition with the Probate Court and after a brief court hearing, filing an inventory of estate assets with the court. All other matters are handled by the executor appointed in the decedent's will without the need for court intervention. The legal cost of this process is typically less expensive than the cost of a trust. Trusts are only effective as to property which has been correctly transferred to it, that is, property in which the trust has legal title or deed. In the event there are assets in a decedent's estate which were not transferred to the trust, the decedent's estate may still require probate to administer such property. Moreover, it is a fallacy that trusts avoid or save taxes. Wills have the same bypass provisions as are present in most family trusts. Additionally, the tax code provides for unlimited marital deductions. Nor does a single person save taxes by utilizing a trust because all assets held by a trust will be subject to being included in the settler's estate. It is also a fallacy that trusts can protect the settler's assets from creditors. If the trust is revocable (meaning the settler can modify it or dissolve it), then the settler's creditors can reach the trust assets, as well. What about all those advertisements and articles you may have read regarding the benefits of family or living trusts? Regrettably, they are an effort to sell you something you do not need or are geared to states which do not have probate laws similar to those in Texas (California, Florida, New York). Therefore a trust may be a perfectly legitimate estate planning choice if you have real estate in those states and other similar states with more difficult probate laws. In the vast majority of cases, Texas residents may avoid the cost and complexity of trusts by having a valid will along with a Durable General Power of Attorney and a Durable Medical Power of Attorney. __________________________________________________________________________________________________________________________________ Answer: Probate is the process of having a court review the decedent's will, establish that the will is valid and appoint executor/executrix, as named in the decedent's will, approve the final distribution of the decedent's property and resolve any issues related to the decedent's minor children. __________________________________________________________________________________________________________________________________ Answer: Not if the decedent leaves a properly drafted and executed will. Texas probate is typicallysimple and inexpensive. __________________________________________________________________________________________________________________________________ Answer: It is not possible, in most cases, to transfer property comprising the decedent's estate without probating the will. By probating the will, the executor/executrix is given authority to act in place of the decedent to sell the decedent's property and distribute the property in accordance With the decedent's will. Even if all the beneficiaries agree on how to distribute and/or sell the decedent's assets, they usually will not be allowed to close mutual funds, sell real estate or gain access to bank accounts without someone being appointed executor/executrix of the decedent's estate. __________________________________________________________________________________________________________________________________ Answer: As soon as possible. The sooner you begin the probate, the sooner the executor/executrix will be given the authority to access bank accounts, distribute property and wrap up the decedent's estate. A will must be submitted to the court for probate within four (4) years of the date of the decedent's death. __________________________________________________________________________________________________________________________________ Answer: If you cannot find the decedent's original will, you may be able to probate a copy of the will. You will, of course, be required to provide the court with a reasonable explanation as to the whereabouts of the original will, as well as proof that the copy is accurate. It is important that you diligently search for the decedent's will prior to initiating the probate. You should contact the lawyer who drafted the decedent's will and check all safe deposit boxes. __________________________________________________________________________________________________________________________________ Answer: If you die without a valid will, the laws of the state of Texas will determine who should inherit your property, and how much each person will inherit. These laws (referred to as the Laws of Descent and Distribution) can be complicated, depending on your family situation at the time of death. __________________________________________________________________________________________________________________________________ Answer: If the child(ren)'s other parent is alive, the children will be placed in his or her control. If the other person is also deceased and you have not made a guardianship designation in your will for your children, the judge of the court in which your estate is resolved will decide who should be appointed as the guardian of your minor children. Normally, the guardian would be the surviving parent of the children, but it could be another relative, or even a friend. Again, it will depend on your family situation at the time of your death, and you won't be there to give your opinion to the judge. __________________________________________________________________________________________________________________________________ Answer: There are a number of different kinds of properties that may pass outside the provisions of your will. The list includes life insurance, retirement plans, individual retirement accounts, and annuities. When you purchased or set up these types of assets and accounts, you were probably asked to fill out a form listing the beneficiaries who will receive payments upon your death. These investments will pass to the named beneficiaries regardless of whether you have a will. However, if you don't have a beneficiary named, if the beneficiary named is your "estate" or if all the beneficiaries are dead, then those investments will be paid to your estate and pass under your will. Certain bank and brokerage accounts will also pass outside your will. For instance, payable-on-death accounts (sometimes called 'POD" accounts) will be distributed to the named beneficiary. Additionally, accounts set up by one or more persons as joint tenants with rights of survivorship will pass to the surviving account holder or holders. Some banks allow you to set up what they call "trust accounts" even though there is no written trust agreement. These types of accounts will pass to a named beneficiary without going through probate, as well. Not all joint accounts pass to the survivor. When joint amounts are set up as tenants in common, the portion of the account that was owned by the decedent passes under his or her will. Many people have decided to create revocable or irrevocable trusts as part of their estate plan. Virtually all such trusts are designed to pass directly to persons or other trusts named in the document rather than under a Last Will and Testament. You may find that most of your estate consists of non-probate property. Therefore, it is extremely important to coordinate the beneficiaries of all these properties to make certain your assets will be distributed as you want when you pass away. __________________________________________________________________________________________________________________________________ Answer: There is no requirement that you probate a will no matter how much the estate is worth. Wills need to be probated only if property is not transferred by some other means. The probate process is primarily a method of changing title from the deceased to the person or persons who inherit the property. Some assets require probate, such as real estate and bank accounts held only in the name of the deceased, while others do not, such as life insurance policies or retirement plans payable directly to named beneficiaries. If an estate is valued at $3,500,000.00 or more, then a federal estate tax return must be filed. Life insurance owned by the decedent must be included when computing the $3,500.000.00. __________________________________________________________________________________________________________________________________ Answer: There are some steps you must take and other steps you may need to take. Exactly what you must do depends on the types of assets owned by the decedent and the size of the decedent's estate. ~Find the Will. ~Hire a Lawyer. ~Application for Probate. ~The Probate Hearing. ~Testimony and Order. ~The Oath. ~Letters Testamentary. ~Notices. ~File the Inventory. ~Tax Returns. In answering this question, I have assumed the will was executed, witnessed and notarized properly, and that it contains all the right language. Not all probate proceedings are as easy as this answer indicates. For instance, you may find yourself in the middle of a will contest, or the will may have been written in another state, thus complicating the probate.

What is a will?

Who can make a will?

Who needs a will?

Can I write my own will?

Is it expensive to have a lawyer prepare a will?

What information do I need to give my lawyer if I want a will?

What is a living will?

What is a trust?

Should I have both a will and a trust?

What are the two (2) primary types of trusts?

What is a family trust/living trust?

What is a special needs trust?

What are the benefits or advantages of a trust?

What effect does a trust have on the beneficiary's creditors?

Do I really need a trust?

What is Probate?

Is probate difficult?

Why should the will be probated?

When should a will be probated?

What if the original will cannot be found?

What will happen to my property if I die without a will?

What will happen to any children if I die without a will?

Are there any assets that can be handled outside of probate (Non-probate Assets)?

Must a will be probated if the estate is less than $1,000,000? Are insurance proceeds included in that total?

I am named as the executor/executrix of a will. What do I do?

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