Do I Need A Will?
It is always important to be prepared. A Last Will and Testament is a legal document that directs who will inherit your real and personal property when you die. If you do not have a legal Will prepared, then the laws of the state will dictate how your property is distributed. Often, property is distributed in a way that is contrary to what the deceased would have wanted had he/she properly executed a valid legal Will. Further, without a legal Will it is often more difficult, expensive, and time consuming for the family members to legally transfer the property.
To be legally valid in Texas, a Will must meet the requirements of the Texas Probate Code. When executing the document, the testator must be of sound mind for this purpose, and he/she must not be acting under any type of duress. Further, the testator must sign the document in the presence of 2 witnesses who are at least 14 years old and who are not beneficiaries to the Will. Especially in the event of a Will contest it is imperative that all requirements have been met and procedures have been properly followed during the execution of the Will.
In your Last Will and Testament you should appoint an Executor who will administrate the estate, and at least one alternate, in case the person you name has predeceased you or is unable or unwilling to serve. You may also appoint a guardian to take care of minor children and a trustee to take care of property left to any beneficiaries who are minors. You may also want to include funeral provisions in your Will.
What is the Probate Process?
The word “probate” means “to prove.” The Probate process is the process by which one proves up who the legal beneficiaries of an estate are, and If there is a Will, then the probate process involves proving to the court that the Will is legally valid according to the laws of the state it is being probated in. Legally, a deceased person may not own property; therefore, the moment a person dies the property is in a state of limbo, in a sense, until certain procedures have been met proving who the rightful owner is. In Texas, a Will must be probated within 4 years. If there is no Will, as long as the estate meets certain requirements, it may be possible to probate the estate using a Small Estate Affidavit. Another method of probate without a Will would be using an Affidavit of Heirship. Each case is different, and during a consultation an attorney will ask pertinent questions to ascertain what is the best way to proceed, taking into consideration the facts of the case, the current laws of the state, and the size and nature of the estate of the deceased.
Other Testamentary/Estate Planning Documents -
Other legal documents that are very important to have in place include:
- Durable Power of Attorney– this document allows you to appoint an agent to act on your behalf regarding business transactions, buying or selling property, paying taxes and the like. This document may take effect immediately or upon your disability or incapacity. It may become necessary to sell assets to pay for your medical bills, for one thing, and without a POA your family would have to have a guardian appointed. This would cost thousands of dollars in legal fees, and most likely damage family relationships. Sometimes people will also have a POA prepared which is effective for a temporary period of time, for instance, while they are out of the country. This document terminates upon your death, and the agent in your Durable Power of Attorney is not to be confused with the Executor of your Will.
- Medical Power of Attorney– this document allows you to appoint an agent to act on your behalf regarding making important medical decisions in the event you become incapacitated. Again, without a Medical Power of Attorney, your family would likely have to have a guardian appointed in such an event, which could cost thousands of dollars and wreak havoc on your family members. The Medical Power of Attorney, of course, terminates upon death.
- Advanced Directive – also known as a “living will" or "Healthcare Directive," this document lets physicians know what your wishes are regarding life support.
- Appointment of Agent for Disposition of Remains – This document directs who will make decisions regarding your funeral or cremation. In many cases this document is not necessary, but in some cases it is very helpful to have. For example, if you are not married but have a significant other, this document may be highly recommended by your attorney, as a funeral home may or may not take the direction of someone other than a spouse. This document would also be helpful in cases in which there may be strife and contention among family members regarding whether to cremate or bury the remains of a loved one, or who will make the decisions in that regard.
- Living Trust - This estate planning tool is used less frequently than it probably should be. May individuals do not understand the benefits of having a living trust, which is a trust created, funded, and in existence during one's lifetime. This is different than a contingent trust which is created under a Last Will and Testament. An estate planning attorney can explain what this is and whether or not it would be beneficial in each case.