Wills & Probate
Proper planning prevents…well, you get it. A good first step is a great head start.
Do you really need a will? Who is in charge after you die? What does a fight look like in Probate Court? Probate law covers a variety of topics including wills & estate planning, guardianships, trusts, and litigation.
The Probate Process
Probate is the act of proving that a Will was signed and executed in accordance with the legal requirements of the State where it was signed. It is through probate that property is legally transferred from the estate of a person (the “decedent”) to the rightful beneficiary. Probate identifies and inventories assets pay off creditors and distribute assets according to the terms of the Will. Absent a Will, Texas intestacy laws will control the portioning and distribution of the various forms of property.
Determining the rightful beneficiaries depends on whether the decedent had a valid Will.
There are two questions a qualified probate attorney should ask:
(1) Whether the decedent died with or without a Will. The answer to this question will let the probate attorney know which process must be followed. Although many of the documents may be the same, it is a completely different process;
(2) What are the assets of the estate? The answer to this question will let the probate attorney know whether probate is even necessary.
Receipt of probate is the first step in the legal process of administering the estate of a deceased person, resolving all claims and distributing the deceased person’s property under a Will. A probate court (surrogate court) decides the legal validity of a testator‘s (deceased person’s) Will and grants its approval, also known as “granting probate,” to the executor. The probated Will then becomes a legal instrument that may be enforced by the executor in the law courts if necessary. A probate also officially appoints the executor (or personal representative), generally named in the Will, as having the legal power to dispose of the testator’s assets in the manner specified in the testator’s Will. However, through the probate process, a will may be contested.
Requirements of a Texas Will
The testator must:
- Be at least 18 years old, legally married, or serving in the armed forces;
- Be of sound mind at the time of executing the Will;
- Not be forced or deceived to make the Will;
- Have the intention to distribute property upon death;
- Holographic Will
- Written entirely in the handwriting of the person creating it. Typewritten words will not be considered or added.
- Signed and dated by the person writing it.
- Can be written on anything. Famous examples include a t-shirt, a bumper, and a napkin.
- Formal Will
- Typically typed
- Signed by the person it is prepared for (“testator”);
- Witnessed by 2 credible witnesses above the age of 14 (signatures required);
- Testator and witnesses must sign the Will in the presence of each other.
- A beneficiary of the formal will cannot be one of the witnesses to it.
- Most Wills should now have a self-proving affidavit for Probate purposes later.
There may be instances where one needs to challenge the validity of a Will because they believe the testator was unduly influenced to sign the will or did not sign the Will of his/her own free will. Another reason to contest a will is if the Testator lacked testamentary capacity, which means he did not have the mental capacity needed to understand all of the contents of the will.
Under Texas laws, you only have two (2) years to file a Will contest after the Will has been admitted to Probate. Will contests are not easy and are often emotionally draining. However, it may be a person’s only opportunity to secure the property that should be theirs.
Few people enjoy discussing or thinking about their own death. However, having a basic estate plan is a responsible way to ensure your loved ones are taken care of after you’re gone and what you worked hard for your whole life is protected.
An estate is an individual’s interest in all property owned at the time of death, whether real or personal, tangible or intangible. Non-probate assets included in an “estate” include life insurance policy/annuity/IRA/Keoghs/401K with a properly designated beneficiary, payable on death bank accounts, joint tenants with right of survivorship accounts or property, and assets put into a properly funded trust.
In Texas, property is either separate or community property. Absent clear and substantial evidence to the contrary, any asset acquired during marriage is deemed to be one-half owned by the husband and one-half owned by the wife. This distinction would hold true for same-sex marriages sanctioned or recognized by Texas. Property owned before marriage, the property received by gift, devise, or descent (inheritance), property flowing from previous separate property (except e.g. new rent from the old property), and personal injury lawsuit damages (except for damages representing earning power) are considered separate property.
Attorneys prepare estate plans for clients identifying their goals and objectives ranging from tax planning by minimizing estate/inheritance tax, gift tax, and generation-skipping transfer tax, to asset protection by preserving and transferring wealth to their family members. Attorneys also advise clients on business succession planning and entity formation for family-owned businesses, which may include Family Limited Partnerships and LLC formation.
Many different types of Trusts are available to fit many different situations affecting many types of property. A Trust is an agreement that one person makes to hold property for the benefit of another. A Trust allows a person to put conditions on how and when assets are distributed upon their death (or sometimes during their life…”Living Trust”). It allows one to reduce estate and gift taxes and distribute assets to beneficiaries without delay or cost or publicity. It also lends protection from creditors and lawsuits. If a person wants to avoid any of their assets going through probate (or intestacy), they must “fund the Trust” by transferring assets into the Trust.
4 Components of a Trust:
- Someone (known as the trustor or settlor) must create the Trust;
- A person or entity (“trustee”) must agree to hold money and/or property for the benefit of someone else;
- Money, property, and/or assets must be held by the trustee;
- Someone must benefit from the trust (“beneficiary”).
Trusts, taxes, and estate planning are highly specialized areas related to and overlapping probate; a person should carefully consider who they have helping them develop a plan for who is in charge after they die, where and how their property gets distributed and defending the rightful beneficiaries’ claim to certain property if the unfortunate circumstance of a Will Contest arises.
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