Estate
planning and
Probate Lawyers in Dallas, Texas
We
have listed a few of the more common matters that we discuss with our
clients regarding estate planning, retirement and probate services. If
you would like a question answered that you do not see here, please
feel free to contact our firm
online, or
call us at (214)
696-0021 (click to call). For more frequently asked questions
about Texas estate law, please visit our blog.
What is probate?
Probate
is the process by which you prove that a person is deceased and who
should be entitled to that person's property. The deceased is commonly
referred to as the "Decedent." Property from a decedent is distributed
either according to the decedent's will (usually by letters
testamentary, or a muniment of title) or by intestacy if there is no
will (by letters of administration). Sometimes, a probate court
procedure is required in order to clear title to property only (usually
by a muniment of title.) If a will has been probated in another state,
but there is property that needs to be handled in Texas, then an
ancillary probate action may be required in order to clear title to the
Texas property. In Texas, Letters of Administration and Letters
Testamentary are sometimes required in order to conduct business on
behalf of the estate. Back to
top.
What happens if
someone dies without a will?
Texas
intestacy laws apply to estates of people who die without a will. If
someone dies without a will, that person is considered to have died
"intestate." Documentation or court proceedings may be required to
prove who owns the deceased's property. There are several mechanisms
available to demonstrate the transfer of the deceased's property,
depending on the circumstances, debts and the size of the deceased's
estate. These procedures include heirship affidavits, small estate
affidavits, a motion to determine heirship, and a motion to determine
common law marriage. For more complex estates, or in a wrongful death /
survivor action matter, a motion to appoint an administrator or
personal representative of an estate may be necessary. Back to top.
How do I plan my
estate?
We
regularly draft wills, guardianship declarations for minor children,
trusts, revocable living trusts, probate avoidance materials, medical
power of attorney, durable powers of attorney for residents of Texas.
We also have a package service that includes the drafting of a will
(either with or without a trust), a durable power of attorney,
guardianship declaration, medical power of attorney and living will for
one low price. Please see the individual descriptions of available
documents listed below. Back to top.
How does my
reitement plan fit in with my
estate plan?
We
can assist with wealth accumulation and preservation, including
alternative investments, asset protection and estate tax avoidance,
through our ancillary services. Back to top.
What is a will? Do I
need a lawyer to draft
my will? Can I do a will myself, online or using a form?
A
will is a set of instructions that list how you want your property
disposed in the event of your death. Our services include wills for
married couples, unmarried couples, life partners and single people.
You can choose to dispose of your property by outright gifts, or by
trusts (see below). People often ask us if they can draft
their
own wills (either by using free legal forms, self help books, or
on-line will creation software.) Given the relatively low price that
attorneys charge for wills, it may not be worth the risk to draft wills
without an attorney. Put simply, you are dealing with all of your
possessions in one document. This might not be the best time to save a
few dollars, considering that you are risking all of your worldly
possessions. If there is an ambiguity, you will not be there to explain
it. If there is an error in the execution of the will, you will not be
able to correct it. There is a risk that a simple error could cause
your estate to be distributed in a manner that you would not have
wanted.Back to top.
What is a trust?
A
"trust" is an instrument by which you transfer property (called the
"res") to a person or corporation ("trustee") for the benefit of
another person ("beneficiary"). Trusts come in several types. The most
common trust is one made incident to a will. In this scenario, a person
plans for property to pass from his or her estate to a trustee, for the
benefit of a minor child. Upon that person's death, the trustee
collects the property designated in the will, and distributes the funds
to the child, per the trust terms. A common example is to provide
periodic payments from the trust for the child's health, education,
maintenance and support until the child reaches the age of 21. At that
time, the trustee either distributes the rest of the trust outright, or
continues to make periodic payments per a predefined schedule. There
can be tax implications regarding trusts.
Living trusts - Other
trusts include trusts made during a person's lifetime, known as "inter
vivos" trusts. These trusts are either revocable (you can change at any
time during your life, but they cannot be changed after your death or
incapacity) or irrevocable (they are unchangeable immediately). These
trusts may require that you transfer assets to the trust during your
lifetime. Often included with these trusts is a "pour-over" will, which
transfers at your death any property that you did not transfer to the
trust during your life. Other trusts include trusts to be funded with
life insurance policies. These trusts are sometimes referred to as
"probate avoidance" trusts, though this is not technically accurate.
These types of trusts are common for disability planning, and planning
in which there is a chance of subsequent probate litigation. Back to top.
What is a "living
will"?
Physician's
Directives are also known as "Living Wills", "Do not resuscitate" (DNR)
orders, and "Advance directives". These instruments notify health care
providers in advance what sorts of artificial life support you would
like, if any, if you are ever diagnosed as being in an persistent
vegetative state. Back to top.
What is a power of
attorney?
A
power of attorney document allows another to sign your name to
documents and contracts for you. You can restrict the powers to
specific items (called a limited power of attorney) or have the person
sign just about anything on your behalf (called a general power of
attorney.) Limited powers of attorney are handy if you need someone to
sign your name to a specific contract. For example, if you need for
someone to sign your name to a specific real estate closing contract
while you are unavailable, you would sign a limited power of attorney,
granting that person the power to sign your name to a specific
contract.
Durable Power of Attorney - The power of attorney
can take effect either immediately, or in the event of a later
incapacity. If you have a power of attorney document that is not
affected by a subsequent incapacity, then you have a durable power of
attorney. It is important to note, however, the power to sign someone's
name with a power of attorney document ceases when the person who
executed the power of attorney document dies. In other words the power
of attorney dies with the person who granted the power. Additionally, a
person must be competent to grant a power of attorney.
Durable
power of attorney and incapacity - The durable power of attorney
document is useful in that it allows someone to manage your affairs
during a period of incapacity. A power of attorney document cannot be
used to draft a will for another, however. The person who receives the
power of attorney will owe a duty to the person granting the power. The
power may be revoked at any time. Back to top.
What is a medical
power of attorney?
A
medical power of attorney document designates a person to medical
decisions on your behalf, if you are ever in a situation where you need
medical help, but are unable to communicate your wishes. There are also
advance notifications about what types of medical service you would or
would not want. Back to top.
What are
guardianship declarations?
There
are two main types of declarations used in this type document.
Guardianship declarations for adults specify a person that would manage
the day-to-day care of your person and your property if you ever became
incompetent. The second type of declaration is a designation of a
guardian for a minor child, should the need arise. Although this is
typically done through a will, it can be done through a stand-alone
document as well.
Guardianships - Guardianship is the process
by which an applicant will demonstrate to a probate court that an adult
is not capable of managing his or her own care and matters. If the
probate court finds that the person is not capable, then it will
appoint a guardian (typically the applicant) to manage the affairs of
the person (called the "ward.") Back to top.
I am an adult. How
can I legally change my
name?
If
you are more than eighteen years old, and you have no convictions of a
class C misdemeanor or above, then we can petition the district court
in your county to enter an order changing your name. Although you
cannot use a name change to hide from creditors, many people simply
prefer to use a different name. Back to top.
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Cases may be worked on jointly or referred. Even if you do not see your
specific issue listed here, please feel free to call our law firm. One
of our attorneys may still be able to help, or send you to a lawyer
referral service. For more information call us at (214)
696-0021 (click to call)or email . (Be sure to read
our disclaimer
first.) You can also visit our web log for
more information.
Copyright
(c) 2008, David L. Leon, P.C., Dallas Business Attorneys.
The Texas lawyer responsible for this site is David L. Leon.
Primary office in Dallas, Texas.
Matters may be worked on jointly or
referred. Please our disclaimer
before
contacting our firm.
Contact with our firm alone does not create an attorney client
relationship.
Not specialized by the Texas Board of Legal Specialization.
