Wills, Estate & Probate
In its basic form, a Will is simply a piece of paper with written instructions about how a person wishes their property to be distributed when they die. It can be as simple or as complex as a person wishes it to be. It is not always necessary to have an attorney draft your Will; however, most online do-it-yourself Will kits are not legal in Texas because they lack critical elements. it is always safest to check with a lawyer and make certain that your final wishes are in place.
This guide will help you understand why you may want a will.
In addition to disposing of your possession, a Will can be a final message to family and friends, and can notify loved ones of other assets that may exist like life insurance. Without a Will, your family may be forced to spend hundreds of dollars changing the name on a car title or bank account.
Probate is the name given to describe the legal process of having a Will recognized by a court and powers bestowed upon the Executor of the Will. The Executor is a person named by the deceased to carry out the terms of the will, it is usually a spouse or family member, but does not have to be. The Executor is responsible for filing the Will in court to start probate, asking for a letter of authority from the court, transferring property and car titles to the heirs, paying any funeral expenses and distributing cash or personal possession to the heirs.
If a person dies without leaving a Will, they are said to have died intestate. If they were married and had no children by another person, their spouse inherits everything. If, however, the deceased had a child by another marriage, the remaining spouse and that child inherit EQUALLY. This can have very serious consequences for non-traditional families.
Example: Tom has a son from his first marriage. Tom remarried and has three children with his spouse. Tom dies without leaving a Will. Tom's spouse and three children inherit EQUALLY to his son from his first marriage. His wife and three children will get 50% of Tom's assets and his son will get the other 50%. It does not matter if Tom hasn't spoken to that son in decades or if that son has refused to have anything to do with Tom. Without a Will, the Texas intestate laws will apply and Tom's property will be evenly divided.
Also known as a "Directive to Physicians," a living will indicates to hospital workers and loved ones what decision to make if you are on life support. There are two basic decisions:
- what do you want done if you body systems are functioning, but your brain may not be and,
- what do you want done if your brain may be functioning, but your body cannot support itself without constant care.
Definitions & Common Terms
Deceased: The loved one who has passed away and left a Will.
Will: A legal document created prior to death by the deceased with instructions about how to dissolve/distribute/donate any items, money or property owned by the deceased.
Probate: Legal process in which a dead person's Will is submitted to a court and carried out according to the terms of the Will.
Heirs: Family members of the deceased and/or people given things in the Will.
Executor: The person chosen by the deceased to follow the Will's instructions.
Trust: Special type of account created by a Will to hold money or property on behalf of someone else.
Trustee: Title given to someone who may be put in charge of the money or property for someone else. A common Trustee situation arises when underage children inherit large sums of money from relatives. Example: John left his 10-year-old niece $15,000 to be held in trust until she turns 21. The child's mother is named Trustee of the account and must guard the money until her child turns 21.
Intestate: Legal word used to describe people who die without a Will.
Intestate Succession: Flowchart of inheritance created by Texas law to decide who gets what if no Will existed.
Power of Attorney (POA)
You can you a POA to authorize another person to make financial and legal decisions immediately or in the future. A POA can be used to give someone a one-time power (ex: cash a check in your name) or give someone indefinite powers (ex: authorize a partner to open or close bank accounts).
Medical Power of Attorney (MPOA)
You can use an MPOA to authorize another person to make medical decision on your behalf immediately or in the future. This includes decisions related to your treatment, care and insurance.
Directive to Physicians
A directive to physicians is also known as a Living Will. This document states your wishes about what happens to you in two specific situations.
- If you body is functioning but your brain waves do not show any activity.
- If your brain is functioning but your body needs ventilators to stay alive.