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Wills and Inheritance

 

Creating a Texas Will is an integral part of the estate planning process.  A will reduces or even eliminates disputes that may arise among your family members regarding the distribution of your property upon your death.

 

Prepare Your Will

Proper planning can do more than minimize taxes. An estate plan is not just for the wealthy - it can save you thousands of dollars in probate fees. If your wishes are not in writing, it can be very difficult for your loved ones to transfer your assets.

Top Ten Questions I am asked about Wills

 

When I first began writing "Wills" for clients, it was somewhat awkward to talk about the topic.  After all, you have to die before it really becomes an issue right?  I would use terms like, when you pass, or after you are gone, or should "something happen to you" to reference the obvious issue - we are all going to die. Extended Group Portrait Of Family Enjoying Day In Park Not to be depressing, but the day cometh.  I started to encourage my clients to see that drafting a Will is really an act of love towards your family and loved ones.   It will make a difficult time for them a lot easier when they do not have to guess (or argue) about  your wishes and desires for the distribution of your property and personal belongings.  Yes, you will be gone, but your family will be grateful you took the time to create your Last Will and Testament.

 

1.  Does a Will have to be probated?

 

Answer:  It depends on whether there is titled property that needs to be transferred to a named beneficiary at the time of the "testator's" death.  The testator is the person who made the Will. Untitled property can be distributed pursuant to the Will without a probate through a family agreement.  It is always best to probate a Will.

 

2.  When should a Will be probated?

 

Answer:  It should be probated as soon as possible after the "testator's" death.  You have 4 years after the date of the testator's death to probate - after four years, it can still be probated, but it takes a lot of extra paper work.

 

3.  My brother or sister influenced my mom or dad to change their Will.  I know it was changed but I don't know what is in the new Will.  What can I do?

 

Answer:  I get asked this at least once a month, and was just asked this today.  If your parents will not share with you what is in their Will, there is no legal remedy to make them tell you.  If your parents' mental capacity is an issue, and you think they are being manipulated by a relative,  then you can request a guardianship proceeding from a court. The court can appoint a guardian to look over your parent's financial affairs.  I have initiated "undue influence" cases and challenges to a testator's mental capacity.  These cases are hard to prove after the testator has passed away.  Those that know me know I love legal movies.  See the movie "Rainmaker" - it addresses this topic.

 

4.  Can I write out my own Will?

 

Answer:  Yes, although I don't recommend it.  Texas allows Holographic Wills (handwritten) - they are valid if they express a testamentary intent and are completely in your own handwriting.

 

5.  Who should I appoint as the executor of my Will?

 

Answer:  The "Executor" is named in your Will and is the person who distributes your belongings and property to those people named in your Will.  Bottom line, it should be someone you trust.  It can be a beneficiary of the Will, it is often an adult child or relative of the testator.

 

6.  Who gets my money and things if I don't have a Will?

 

Answer:  Contrary to popular belief - the government rarely gets your estate.   The Texas probate code sets out the "laws of succession."  These laws set forth how it is determined which of your relatives (heirs) get your stuff.  You have a legal right to say who gets your estate when you pass-way.  Don't leave it up to the probate code - you decide!  If it is not apparent who your heirs are - enter ancestry.com (or other resources)  to find your nearest of kinfolk.

 

7.  Should I use an inexpensive "on-line" service to create my Will?

 

Answer:  No.  I could tell you many stories of the Wills drafted on-line that I have gotten to probate - with a lot of extra trouble.   Some would say that I am just saying that so you Will go to an attorney and pay the legal fees for a proper Will.  But consider that it generates a lot of business for attorneys to fix the on-line Wills.  Have your Will prepared by a professional.

 

8.  Where should I keep my Will?

 

Answer:  It is required to file with the "Original Will" with the court once the probate application is filed.  We always sign with blue ink pens in my office to help identify an original.  Keep the original in a fireproof and water proof safe.  You can store it in a safe deposit box as long as you have authorized with the bank the executor to access the safe deposit box.  If your executor does not have access then an order will have to be signed by the judge giving someone access.

 

9.  Should I make copies of my Will?

 

Answer:  No.

The original of the Will should be filed for probate. I have you sign in blue pen so I can more easily identify the original.  The problem with copies is that if you change your Will, you have to worry about other copies floating around that can cause confusion when it comes time to probating your most current Will.

 

10.   How do I make sure my nephew gets my favorite watch?

 

Answer:  Hopefully, you have someone you trust completely to act as your executor.  This person most likely will follow your directives.  We prepare a "memorandum to your will."  On this memorandum you hand write to whom you want certain personal items to go. "My nephew is to receive my Rolex watch."  Most of the family disputes I have helped to resolve have been over personal and sentimental items.  As of recent, in different cases - a ring, a tool box, a flag that was draped over the casket, and even a fur coat!  The problem with each case was the same, nothing in writing from the deceased.  Be very specific in the memorandum.  Take pictures and attach the picture.  Usually, that will be enough direction for the executor.  If it is an item of great value, there are some technical ways you can make certain the gift can be enforced by the court. You will need to discuss this with a probate lawyer.

 

11.  Bonus question -- I don't have much property, do I still need a Will?

 

Answer:  Absolutely yes.

A Will is an important document to help identify your family.  It is my understanding that ancestry.com gathers much of its information from Wills that have been recorded in courts around the world.  If you have a middle name, use your full name on you Will instead of just an initial.  We can also include a designation of guardians for your children, funeral directives and any gifts you may want to make to a charity.  When the Will is probated, it becomes a permanent historical document.   If you have titled property, and you pass without a will, it is very expensive and time consuming to conduct an "intestate probate," to determine your legal heirs and transfer title to property.  No matter how small your estate (your assets and belongings) you should have a Will.

 

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