We have listed a few of the more common matters that we discuss with our clients regarding estate planning, retirement, and probate services. Having a plan in place and dealing with these matters can make a difference when it comes to the possibility of your death or incapacitation. An attorney can help you understand if a will, trust, or other estate planning option will sort out your property, assets and wishes should you, your family, or business face an unfortunate circumstance.
Probate is the process by which you prove that a person is deceased and decide who should be entitled to that person's property. The deceased is commonly referred to as the "decedent." Property from a decedent is distributed either according to the decedent's will (usually by letters of testamentary or a muniment of title) or by intestacy if there is no will (by letters of administration).
Sometimes, a probate court procedure is required in order to clear title to property only (usually by a muniment of title). If a will has been probated in another state, but there is property that needs to be handled in Texas, then an ancillary probate action may be required in order to clear title to the Texas property.
In Texas, letters of administration and letters of testamentary are sometimes required in order to conduct business on behalf of the estate.
Texas intestacy laws apply to estates of people who die without a will. If someone dies without a will, that person is considered to have died "intestate." Documentation or court proceedings may be required to prove who owns the deceased's property. There are several mechanisms available to demonstrate the transfer of the deceased's property, depending on the circumstances, debts, and the size of the deceased's estate. These procedures include heirship affidavits, small estate affidavits, a motion to determine heirship, and a motion to determine common law marriage. For more complex estates, or in a wrongful death/survivor action matter, a motion to appoint an administrator or personal representative of an estate may be necessary.
We draft wills, guardianship declarations for minor children, trusts, revocable living trusts, probate avoidance materials, medical power of attorney, and durable powers of attorney for residents of Texas. We also have a package service that includes the drafting of a will (either with or without a trust), a durable power of attorney, guardianship declaration, medical power of attorney, and living will for one low price. Here are some estate planning services we offer:
We can assist with wealth accumulation and preservation, including alternative investments, asset protection, and estate tax avoidance through our ancillary services.
A will is a set of instructions that list how you want your property disposed in the event of your death. Our services include wills for married couples, unmarried couples, life partners, and single people. You can choose to dispose of your property by outright gifts or by trusts (see below). People often ask us if they can draft their own wills (either by using free legal forms, self help books, or online will creation software).
Given the relatively low price that attorneys charge for wills, it may not be worth the risk to draft wills without an attorney. Put simply, you are dealing with all of your possessions in one document. This might not be the best time to save a few dollars, considering that you are risking all of your worldly possessions. If there is an ambiguity, you will not have a lawyer by your side to explain it.
If there is an error in the execution of the will, you will not be able to correct it. There is a risk that a simple error could cause your estate to be distributed in a manner that you would not have wanted.
A trust is an instrument by which you transfer property (called the "res") to a person or corporation ("trustee") for the benefit of another person ("beneficiary"). Trusts come in several types. The most common trust is one made incident to a will. In this scenario, a person plans for property to pass from his or her estate to a trustee, for the benefit of a minor child. Upon that person's death, the trustee collects the property designated in the will and distributes the funds to the child, per the trust terms. A common example is to provide periodic payments from the trust for the child's health, education, maintenance, and support until the child reaches the age of 21. At that time, the trustee either distributes the rest of the trust outright or continues to make periodic payments per a predefined schedule. There can be tax implications regarding trusts.
Other trusts include trusts made during a person's lifetime, known as "inter vivos" trusts. These trusts are either revocable (you can change at any time during your life, but they cannot be changed after your death or incapacity) or irrevocable (they are unchangeable immediately). These trusts may require that you transfer assets to the trust during your lifetime. Often included with these trusts is a "pour-over" will, which transfers at your death any property that you did not transfer to the trust during your life.
There are some trusts funded with life insurance policies. These trusts are sometimes referred to as "probate avoidance" trusts, though this is not technically accurate. These types of trusts are common for disability planning and planning in which there is a chance of subsequent probate litigation.
Physician's Directives are also known as "living wills,” "do not resuscitate" (DNR) orders, and "advance directives.” These instruments notify health care providers in advance what sorts of artificial life support you would like, if any, if you are ever diagnosed as being in a persistent vegetative state.
A power of attorney document allows another to sign your name to documents and contracts for you. You can restrict the powers to specific items (called a “limited power of attorney”) or have the person sign just about anything on your behalf (called a “general power of attorney”). Limited powers of attorney are handy if you need someone to sign your name to a specific contract. For example, if you need for someone to sign your name to a specific real estate closing contract while you are unavailable, you would sign a limited power of attorney, granting that person the power to sign your name to a specific contract.
The power of attorney can take effect either immediately or in the event of a later incapacity. If you have a power of attorney document that is not affected by a subsequent incapacity, then you have a durable power of attorney. It is important to note, however, the power to sign someone's name with a power of attorney document ceases when the person who executed the power of attorney document dies. In other words, the power of attorney dies with the person who granted the power. Additionally, a person must be competent to grant a power of attorney.
The durable power of attorney document is useful in that it allows someone to manage your affairs during a period of incapacity. A power of attorney document cannot be used to draft a will for another, however. The person who receives the power of attorney will owe a duty to the person granting the power. The power may be revoked at any time.
A medical power of attorney document designates a person to medical decisions on your behalf if you are ever in a situation where you need medical help but are unable to communicate your wishes. There are also advance notifications about what types of medical service you would or would not want.
There are two main types of declarations used in this type of document. Guardianship declarations for adults specify a person that would manage the day-to-day care of your person and your property if you ever became incompetent. The second type of declaration is a designation of a guardian for a minor child, should the need arise. Although this is typically done through a will, it can be done through a stand-alone document as well.
Guardianship is the process by which an applicant will demonstrate to a probate court that an adult is not capable of managing his or her own care and matters. If the probate court finds that the person is not capable, then it will appoint a guardian (typically the applicant) to manage the affairs of the person (called the "ward").
If you’re not sure what will happen if you die or become incapacitated, contact a Dallas estate planning attorney who can give you options. The Law Offices of David L. Leon, PC helps clients answer these questions with well-drafted documents.