Why do I need a will?

If you wish to specify who your assets will pass to after your death, then you should create a will or some type of testamentary instrument.  In Texas, if a person passes away without a will this is referred to as dying “intestate”.  When a person dies intestate the Texas Estates Code rules of intestate succession will apply. The purpose of the intestacy rules is to provide a way to distribute a person’s property when they die without a will. Therefore, if you pass away without a will your property will be distributed, but it might not go to the people you want it to go to.  Proper estate planning advice from an attorney allows you to be confident that your wishes will be carried out. Contact our League City office to set an appointment to discuss planning for your specific needs.

What exactly is a will?

A will is a testamentary device used by many estate planning attorneys that is revocable during the testator’s lifetime and becomes operative at the death of the testator. What this means is that a person who has made a will is free to change or revoke their will during their lifetime, and then at death the will becomes fully operational and may then be offered into probate.  A will must be signed by the testator, signed by two witnesses above the age of 14, and the signing must be part of one contemporaneous act.  Furthermore, the testator’s will must be admitted to probate within four years of their death in order to have an executor appointed.

How is a will different than a trust?

A trust requires the legal title of the trust property to be placed in the name of the trustee. The trustee then manages or distributes the trust property for the benefit of the named beneficiaries of the trust. Changing the legal title of the trust property to the name of the trustee can be expensive and time consuming, but depending on your particular circumstances this might be a viable estate planning option. Trusts are growing in popularity due the fact that trust property can avoid going through probate and pass directly to beneficiaries. A will on the other hand does not require you to change the legal title of property. This aspect of a will makes it simpler to sell or manage assets yourself.  Property passing through a will must go through probate (unlike a trust). However, Texas allows for the appointment of an independent executor, and thus makes the process fairly uncomplicated. Furthermore, many times a will may contain a “contingent trust” that will only apply in certain situations. We are able to draft wills that contain contingent trusts for all of our clients located in or near Friendswood, League City, Alvin, Kemah or Galveston.

What is a "Contingent Trust"?

A Contingent Trust is a section typically included in a Will that allows the testator (i.e. person making the Will) to have a Trustee named to manage assets for a beneficiary that is under a certain age, typically 25 years old. The purpose of this Contingent Trust is to prevent a minor child with no financial experience from receiving a sum of money with no guidance in how to handle the money. The Trustee in a Contingent Trust would have certain duties and authority to handle the money (or any assets) for the benefit of the beneficiary.

Should I create a will or a trust?

Which estate planning tool is right for you depends on your particular circumstances and long term goals.

Do my spouse and I each need our own will?

It is recommended that spouses each have their own will. In Texas, when your spouse passes away their portion of the community estate is still subject to probate. Many types of property will pass automatically to the surviving spouse. Property that is held with rights of survivorship, in joint accounts, or something similar will pass automatically. However, Texas is a community property state, and this means that each spouse typically has a ½ interest in the marital estate. Usually spouses elect to give their entire ½ interest to the surviving spouse, but this is not always the case. There are many other issues that may arise after the surviving spouse passes away as well if they do not have their own will. Therefore, it is generally better for each spouse to have their own will.

When is it necessary to update a will?

The need to update a will depends on a person’s individual goals and circumstances. However, if you have had children since making your will, have been married or divorced, acquired additional property not described in your current will, or have not updated your will in several years it may be a good idea to either draft a new will or update your current will.

What happens if I pass away without a will?

In Texas, if a person passes away with a will it is called dying “testate”. However, if a person passes away without a will this is referred to as dying “intestate”. When a person dies intestate the Texas Estates Code’s rules of intestate succession will apply. The purpose of the intestacy rules is to provide a way to distribute a person’s property when they die without a will. Therefore, if you pass away without a will your property will be distributed, but it might not go to the people you want it to go to. The easiest way to ensure your property will go to the people you desire it to go it is by making an appointment with a lawyer and obtaining proper estate planning advice.

What is the probate process in Texas?

In Texas probate may be done with either an “independent administration” or a “dependent administration”.  Which type of administration is selected must be in the best interest of the estate. Most well drafted wills provide for an executor to run an independent administration of the testator’s estate.

Independent administration: The named executor in the will must first be qualified and the will must be admitted to probate. These steps are done in a court hearing. The exact court in which the executor will offer the will to probate depends on the county in which the decedent was domiciled at the time of his/her death or the county in which the principal assets are located. After being qualified, the executor of an estate that is subject to independent administration will have broad authority to administer the estate. The executor must file an inventory of assets with the court, determine the assets value, and also compile a list of claims of the estate. After these steps are complete the executor must pay/reject debts owed by the estate, collect assets owed to the estate, and distribute estate assets to the named beneficiaries.

What is the difference between independent administration and dependent administration in Texas?

Independent administration provides for an executor to have broad powers to administer the estate with little court involvement.  However, in dependent administration the executor must seek judicial approval before taking almost any actions on behalf of the estate. This is why most estate planning lawyers in Texas draft wills that provide for an independent executor.

If my spouse passed away do I need to probate their will?

Your spouse’s estate is subject to being probated whether or not they died with a will. It is possible the process could be less burdensome than you might expect. You might be able to simply admit the will in order to re-title certain property, but there is some property will pass automatically. An example of property that will pass automatically is life insurance. With life insurance the policy holder will name a beneficiary, and that beneficiary will be paid upon the policy holder’s death without the funds ever going through probate. Whether or not it is necessary to probate a spouse’s will depends on several factors that can be discussed during a consultation with an attorney.

What assets are subject to probate in Texas?

Only probate assets will pass through probate. Probate assets include, but are not completely limited to, real property (i.e. house or acreage) and personal property (i.e. jewelry, cars, etc.). Non-probate assets are assets owned by the decedent that will pass outside of the probate process. Non-probate assets typically pass automatically upon death. Life insurance that is payable on death to a named beneficiary is an example of a non-probate asset.

When planning your estate it is necessary to determine which assets are probate assets and which assets are non-probate assets. Your will only controls probate assets. Therefore it is necessary to make sure any life insurance policies or joint bank accounts are set up to pass to the beneficiaries you desire them to pass to.

What is the difference between separate property and community property?

Separate property is any property owned by one spouse before marriage; property acquired by a spouse from a gift, inheritance, or personal injury lawsuit compensating the injured spouse for pain and suffering; or any property that is agreed to be separate property. Community property is all property that is not a spouse’s separate property. Also, it is commonly overlooked that income from a spouse’s separate property is community property. The spouse seeking to prove that a specific item of property is their separate property bears the burden of proof.

How long does it take to distribute estate assets after admitting a will to probate?

It is difficult to give an exact timeline for how long it will take to distribute estate assets. It is safe to assume that the probate process could take several months or longer. However, it is likely that some assets can be distributed soon after the will is admitted to probate. Keep in mind that life insurance policies are payable on the death of the policy holder, and these policies are not subject to probate.

What is a Guardianship?

If you have a child that will be reaching the age of majority soon (18 years old), or have a spouse or grandparent that is no longer able to make decisions for themselves, you may need to file an application with the court to have someone named as legal guardian. Our guardianship attorneys handle cases in both Galveston County, Houston, and all of Harris County.  After you are named as guardian of the person and/or their estate, you will be allowed to once again take care of your loved one and have the legal protection you need. This process may seem complicated and frightening, but we will guide you through it as quickly and comfortably as possible.

In Texas, there are two types of guardianships. There is a “guardian of the person” as well a “guardian of the estate”. Depending on your situation and needs the attorney will submit an application for one or both of these options. Typically, most individuals that do not have many assets will only apply to become “guardian of the person”. This process is initiated by submitting an application with the court of proper jurisdiction, and becomes final after a hearing where the applicant is named as guardian.

The first step in a guardianship will be to have a medical doctor examine the person for whom you are seeking a guardianship. Our attorneys would be happy to send you a copy of this required form and schedule a meeting with you so that the process can be as quick and seamless as possible. Feel free to submit a message online or give us a call so that we can discuss this process in greater detail. Our attorneys practice guardianship law in Galveston, Houston, and all of Galveston County and Harris County..

Is it possible to avoid the Guardianship process?

Yes, it is possible to avoid going through the guardianship process in certain circumstances. If as an adult you make the required power of attorney documents you can name the person whom you would like to handle your affairs should the need for a guardian ever arise. However, if you have a minor child who has a mental or physical condition then it may not be possible for them to appoint a guardian without going through the guardianship process. Our office is located in League City and handles a wide range of probate issues. We would be happy to consult with you on this issue and help you pick the best option to fit your circumstances.

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The content provided on this website is not intended to be used as legal advice and should not be construed as such. The use of information provided on this website does not create an attorney client relationship between you and James Tittle, Attorney at Law. The information provided on this website is for informational and educational purposes only, and answers or information provided should not be considered all inclusive. Information on this site is intended to only be used by Texas residents, as laws in other jurisdictions could be different. It is important to consult with an attorney prior to making any decisions that will affect your legal rights. James Tittle is an attorney licensed to practice law in the State of Texas and is responsible for the content provided on this website.  The principle office of business for James Tittle, Attorney at Law is located in League City, Texas.