Frequently Asked Questions - Probate and Estate Planning

A will is a very important and thoughtful document to have - not for yourself, but for your friends, family, and other loved ones. Sections 201.001 - 201.003 of the Texas Estates Code do a pretty thorough job of explaining how the property of a person who dies intestate (without a will) will pass to their heirs. Exactly who inherits your property will depend on a number of factors, including whether you're married or not, whether you have kids or not, and who else in your family survives you. Unfortunately, the law doesn't take the quality of your relationships into consideration. For example, if you have a romantic partner you've been involved with for an extremely long time but never married, Texas law will not consider them your spouse and they will be on their own after you pass. Conversely, if you have an estranged spouse or child, they will be entitled to take a portion of your estate no matter how poorly they treated you or how much you wanted their share to go to someone else.

The good news is that if you write a will, you can leave any or all of your assets to virtually any people or organizations you see fit, regardless of if or how they're related to you. This will save your family a ton of time (and money) in court trying to figure out and prove to the judge which of your relatives are entitled to some share of your estate. You can also designate who you wish to be in charge of distributing your assets, so that you know it will be done by someone reliable and trustworthy. Finally, it can save your family the heartache of fighting over particularly valuable or sentimental possessions, if you have something that multiple relatives or friends may believe you want them to inherit.

1. Last Will - This is the document that people typically think of as a will. It will list the current members of your immediate family (as of the time of the writing of the will), who you would like your assets to go to (although this does not necessarily have to be anyone you're related to, and can include non-human organizations), and who you would like to handle distributing those assets (called the executor).
2. Living Will (also called Directive to Physicians) - This document functions somewhat similar to a do-not-resuscitate (DNR). It allows you to plan for two situations: when you're diagnosed with a disease or condition that is expected to be fatal within six months, and when you're diagnosed with a disease or condition that you're not expected to recover from before your death. For each situation, you can indicate whether you wish for the hospital staff to keep you alive to the fullest extent of their abilities, or if you simply wish to be kept comfortable until the end. 
3. HIPAA Authorization - This document authorizes your medical providers to discuss your medical history with third parties designated by you.
4. Statutory Durable Power of Attorney - This document designates who you'd like to manage your assets in the event you are ever unable to, for instance if you fall into a coma or develop a form of dementia.
5. Medical Power of Attorney - This document designates who you'd like to make medical decisions on your behalf in the event you're ever unable to.
6. Declaration of Guardian - This document designates who you'd like to be your court-appointed guardian, should such proceedings ever be necessary. However, signing this document even when you're perfectly aware and competent does not necessarily mean that the person you choose is the person the court will designate as your guardian. If you have a minor child or children, we will also prepare a form that will allow you to designate who you wish to be made guardian of your child(ren) if both parents pass away while the child or children are still minors.

No. However, part of the probate process is providing public notice to any potential creditors that your deceased relative owed money to. If any creditors properly respond to that notice, they will be entitled to settle their debt before the estate is distributed to heirs or beneficiaries under the will. In addition, any debt that is secured by property (such as a mortgage or vehicle loan) will be owed by the estate, and that property may be lost if the debt is not settled first.

No, that is something that's usually only done for movies and TV. Your lawyer (or whichever lawyer your family hires to handle the probate process) will not gather anyone to read your will to them, although they may be willing to as a personal service if you specifically request it. However, as part of the probate process, a will is filed into the public record, and anyone who pays a nominal fee to the county clerk will be entitled to a full copy of your will. Establishing a trust is the most effective way to bypass having your will made public if it's something you're particularly concerned with.

Probate is the process by which your assets are transferred on your death to people of your choosing. Probate is a process that can often cost several thousand dollars over the course of several months. Because of that, many people are interested in minimizing the number of their assets that are subject to probate and vulnerable to creditors. Whether you want to set up a will to give yourself the peace of mind in knowing that your estate will go to the right people, or if you're interested in keeping your hard-earned money in your family instead of someone else's pocket, contact us today and speak with an attorney to discuss your options.