Frequently Asked Questions (FAQ)

  • [+]How do I know if I need a will?

    There are several reasons why you may need a will. One reason is to make sure that your assets pass to the beneficiaries you want to receive those assets. Another reason is to make sure that an individual chosen by you is appointed to take care of any minor or incapacitated children who survive you. If a minor or incapacitated beneficiary is to receive any assets from your estate, you may appoint a trusted person to be in charge of managing those assets for the minor or incapacitated beneficiary, free of court control. In addition, you may wish to arrange for the transfer of your assets in such a way as to minimize any estate taxes that may apply to your estate.

    More specifically, if you have assets that are registered or recorded with a government agency, such as real estate or an automobile, or if you have assets deposited with a financial institution, such as a bank or brokerage firm, or if you own stock in a company, it will be necessary to prove to the government agency, the financial institution, or the company's stock transfer agent, the identity of the beneficiaries who are to receive those assets on your death. Unless those assets are titled in a special way (such as joint tenancy with right of survivorship, payable on death to one or more specified parties, or in a trust) or unless those assets pass by a beneficiary designation to someone other than your estate (such as life insurance and retirement plans) those assets will be considered part of what is known as your probate estate. A will dictates who is entitled to your probate estate and can be relied upon by entities such as a title company, bank, brokerage firm and stock transfer agent when they transfer title to the rightful new owners. Until an entity holding your assets receives proof of the assets' new owners, the entity will be reluctant and will probably refuse to transfer ownership of those assets.

    If you have no minor children and your assets consist only of household furnishings, personal effects, and a bank account you hold with another person as joint tenants with right of survivorship (or payable on death to one or more specified individuals), there is probably no need for you to have a will, unless you want to make sure that certain items of your household furnishings and personal effects pass to specific beneficiaries.

  • [+]What happens if I die without a will?

    If you die without a will and there are debts owed by your estate, before your assets can be distributed to your heirs, the court will have to appoint an administrator to pay your debts and settle your estate. If all of your heirs agree on the administrator, the administrator may act without court control. If there is a disagreement among your heirs as to whom should be administrator, it is likely that an administrator will be appointed by the court and the court will retain control over the administrator. An administrator subject to the court's control must request the court's permission for most actions taken by the administrator. This is often very time consuming and expensive.

    In addition, if your heirs include a minor child, the court may appoint a guardian to manage any inheritance to which the minor child is entitled. This guardianship position is called "guardian of the estate." The guardian of the estate would also be under court control and would need to seek the court's approval for actions taken with regard to guardianship property. If the minor child does not have a parent surviving, the court would also appoint an individual as "guardian of the person" of the child. The guardian of the person would be responsible for the day to day care of the minor child. Without a will, these very important decisions would be made by the court and not by persons designated by you because you know and trust them.

    If you die without a will, your assets will pass according to the laws of the State of Texas. This may or may not be what you wanted. The identity of your heirs must be determined by the court. For that reason, the court appoints what is known as an "attorney ad litem," to investigate the deceased person's family and personal background to make sure that all the deceased person's heirs are determined. The cost of the attorney ad litem, which is in addition to the fees charged by the attorney representing the administrator or the heirs, is paid out of the deceased person's estate.

  • [+]Who are my heirs under Texas law?

    There are three sets of rules for determining heirs under Texas law. One set of rules applies to unmarried individuals, another applies to the separate property of a married individual, and another applies to a married person's community property.

    1. A deceased unmarried person's heirs are as follows:
      • The deceased person's children and the descendants of a predeceasing child, or if none,
      • The deceased person's mother and father in equal shares,
      • or if only a mother or father is surviving, the deceased person's property is divided in half and split between the surviving parent and the deceased person's brothers and sisters and the descendants of a predeceasing sibling (or all to the siblings, and the descendants of a predeceasing sibling, if no parents survive),
      • or if there are no siblings or descendants of siblings, all of the deceased person's estate passes to the surviving father or mother.
    2. A deceased married person's separate property passes as follows:
      • If a person dies leaving a surviving spouse and children, the surviving spouse receives one-third of the deceased person's separate property that is not real estate (referred to as personal property), and the balance of the deceased person's separate personal property passes to the deceased person's children and their descendants. The surviving spouse is also entitled to a life estate in one-third of the real estate of the deceased person, with remainder to the children of the deceased person.
      • If a person dies leaving a surviving spouse and no children, the surviving spouse is entitled to all of the deceased person's personal property, and to one-half of the deceased person's real estate, or all of the deceased person's real estate, if the deceased person is not survived by a father, mother, nor any surviving brothers or sisters or their descendants.
    3. A deceased married person's community property passes as follows:
      • The community property of a deceased spouse passes to the surviving spouse if no descendant survives the deceased spouse, or if all surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse.
      • If a child of the deceased spouse is not a child of the surviving spouse, the surviving spouse keeps his or her half of the community property and the deceased married person's half of the community property passes to the children or descendants of the deceased spouse.
  • [+]How do I revoke my will?

    There are two ways to revoke your will. The first way is to execute a new document which has the formalities of a will. That means the document is either entirely in your handwriting and signed by you or it needs to be witnessed and signed by you and the witnesses. Most often, when a person executes a new will, the new will recites that it revokes all previous wills and codicils. A written document revoking a will does not have to include new will provisions. It may simply revoke any previous wills.

    The other way to revoke your will is to destroy it. This may be done by the person who executed the will or by another person at his or her direction and in his or her presence.

    There are two important things to remember. If a will is revoked, and then the person who executed the revoked will makes a new will, and then that person revokes the second will, the first will is still considered revoked. The first will does not become effective again upon the revocation of the second will. Also, interlineations and mark-outs on a will which has been formally executed have no meaning and are not effective in revoking or changing the provisions of the will.

  • [+]How do I make a change in a will?

    If a person wishes to make a simple change to a will, such as changing a beneficiary or executor, the person may execute a document referred to as a "codicil." The codicil typcially states that it revokes a certain paragraph in a will and then sets forth the substitute paragraph. If changes to a will are more extensive, it may be preferable to execute a new will. Interlineations and mark-outs on a will which has been formally executed have no meaning and are not effective in revoking or changing the provisions of the will.

  • [+]What happens if there is a divorce after a will?

    If, after a will is executed, the married person executing the will becomes divorced, the divorced spouse is treated as having predeceased the person who made the will. For example, if the divorced spouse is named as executor, the divorced spouse would be deemed to be unable to act. If the divorced spouse is named as a beneficiary, the divorced spouse would be considered not to have survived the person executing the will so that the gift to the divorced spouse passes to the alternate beneficiary or beneficiaries under the will.

  • [+]Does a will cover all of my assets?

    A will only controls the disposition of what is known as your "probate estate." Your probate estate does not include assets such as life insurance proceeds, annuities, and employment and retirement benefits which pass to specific beneficiaries by a beneficiary designation, nor does it include accounts or securities held as joint tenants with right of survivorship or with a payable on death designation, nor does it include assets held in a trust (unless the trust assets pass to the person's estate on the person's death). That is why it is very important in estate planning to make sure that the disposition of all of your assets is coordinated so that your intent is given effect.

  • [+]Does a will have to be probated?

    A will has no force and effect until it is probated. "Probated" means that the will has been approved by a judge who has jurisdiction over the deceased person's probate estate. The fact that the will has been admitted to probate indicates that the will meets all the formalities required by law and that third parties (such as banks, brokerage houses, title companies, etc.) may rely on the will and the authority of the executor administering the estate.

  • [+]What is an executor?

    An executor is a trusted person named in the will who has the responsibility of settling the estate of the person who executed the will. More specifically, the executor must identify and collect the deceased person's assets, arrange for the debts of the deceased person to be paid, and then distribute the deceased person's assets to those who are entitled to the assets under the will.

  • [+]What is the difference between and executor and a trustee named in a will?

    While an executor and a trustee named in a will may be the same person, their objectives are different. The executor's responsibilities should be short term. The executor should be concerned primarily with settling the estate. The trustee's duties are generally long term. The trustee is responsible for investing the trust assets and determining the distributions to be made to the trust's beneficiaries. A trust may terminate upon the occurrence of an event described in the will (such as the beneficiary reaching a certain age), or may continue for the life of the beneficiary or beneficiaries.

  • [+]How do I appoint a guardian for my children?

    A "guardian of the person" is an individual responsible for the day to day care of a minor or incapacitated person. A parent may appoint a guardian of the person for a minor or incapacitated child in the event both of the child's parents are deceased or incapacitated. This can be done either in a will or in a separate document executed with the formalities of a will. A written declaration appointing a guardian of the person must be signed by the child's parent and either totally in the handwriting of the child's parent or witnessed by two persons (not including the person named as guardian) who are over the age of 14.

  • [+]When should I think about planning for estate taxes?

    The amount a person can give away without estate tax liability in 2009 is $3.5 millions. In the year 2010, under current legislation, the federal estate tax is actually repealed. However, the repeal is only for the year 2010. As of January 1, 2011, without future legislation to make extensions, we revert to the law existing prior to passage of the Tax Relief Act of 2001. The effect of the possible reversion to old law will be to potentially create federal estate tax on estates exceeding $1,000,000 in 2011 and beyond, since the prior law would have escalated the exemptions to that level. If Congress does not act to make the estate tax repeal permanent, or does not increase the exemption amount after 2010, an individual or a married couple with assets approaching or over $1 million should consider planning to minimize or eliminate the federal estate tax. It is important to remember that a person’s estate for federal estate tax purposes includes life insurance, annuities, IRA’s and other retirement or employee benefits, as well as real estate, cash, securities and other assets in which a person may have an interest.

  • [+]How can I avoid a court appointed guardian if I become incapacitated?

    You may use a Statutory Durable Power of Attorney to appoint an individual to handle your financial affairs and a Medical Power of Attorney to appoint in individual to make medical decisions for you in the event you become incapacitated. These documents are valuable in avoiding a court appointed guardian in the event you become incapacitated. Another way to avoid a guardianship is through the use of a revocable trust which appoints a successor trustee to manage your assets in the event you are unable to do so yourself.

  • [+]What is a HIPAA Authorization to Release Medical Information?

    One of the goals of The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) was to protect a patient’s privacy with regard to medical matters. But there may be times when a patient would like family members or close friends to be able to have access to the patient’s medical information or be able to discuss the patient’s medical condition with a health care provider. The HIPAA Authorization to Release Medical Information allows you to name those individuals who may be allowed to receive information concerning your medical condition, even if you are not incapacitated.