FAQ

There are approximately 89,900 lawyers in Texas. Of them, only around 8,000 are board certified in the many different areas of law practice. Of these, only around 683 are board certified in estate planning and probate law. That is less than 1% of all the lawyers in Texas. Board certification is a voluntary designation program for attorneys and paralegals. Initial certification is valid for a period of five years. To remain certified, an attorney and paralegal must apply for recertification every five years and meet substantial involvement, peer review and continuing legal education requirements for the specialty area. With respect to estate planning and probate law, it involves conserving and protecting property through wills and trusts, transferring property through gifts and wills, providing financial resources for minor children, probate proceedings, elder law issues and minimizing taxes on estates. To become board certified in a specialty area, an attorney must have been licensed to practice law for at least five years; devoted a required percentage of practice to a specialty area for at least three years; handled a wide variety of matters in the area to demonstrate experience and involvement; attended continuing education seminars regularly to keep legal training up to date; been evaluated by fellow lawyers and judges; and passed a 6-hour written examination. The following is the official logo offered only for use by those qualified by the Texas Board of Legal Specialization.

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Dying without a will involves a potential for a number of unintended consequences. Your heirs will be only too aware that something was not done that should have been done. You need a will so that you can leave your property to whomever you choose and to protect this desire. Having a will can avoid the additional expense of having two lawyers go to court just to determine who your heirs are after your death. Not having a will can increase the risk that more taxes may be owed by your estate as the benefits of tax planning would be lost. If your estate passes to minor children, there will be a need for a guardianship to manage the property until your children come of age. The will can designate the guardian of your children and these are just a few of the important advantages of having a will.

Until a court admits the will to probate, it has no effect. It is just a piece of paper. When the court signs an order "admitting the will to probate," the will is activated and conveys the property of the deceased person to the persons named in the will. The transfer of property occurs at the moment of death. The first duty of the person named as executor is to offer the will for probate and the court may compel the possessor of the will to deposit the will with the county clerk. After four years, the will cannot be admitted to probate unless the heirs are notified and consent.

If the will cannot be found, then a copy of the will may be offered for probate. The witnesses to the will must testify in court as to the contents. The presumption is that if the will may not be located, it was destroyed by the testator. Thus, there must be testimony about why the original of the will may not be probated and the diligent search that was made for the will. For example, the decedent preserved a copy of the will and accidentally threw away the original. Someone other than the decedent destroyed the will. The witnesses must testify even if there was a self-proving affidavit in the copy of the will. If neither the original nor a copy of the will may be found, then the property passes by intestacy.

If the deceased person dies without a will, then the property passes by intestacy (the will that Texas wrote for deceased persons based upon the next of kin to the deceased person). Under Texas law, an application for an heirship determination must be filed. The court appoints an attorney to investigate the unknown heirs, if any, and the whereabouts of unknown heirs and the existence of any minor heirs. The attorney for the heirs files an answer and prepares a report which is offered to the court at the hearing. A family member typically testifies at the hearing, and the testimony is corroborated by two witnesses who are not beneficiaries of the estate. The court then signs a judgment of heirship determining the heirs. If administration is found to be necessary then the court appoints an administrator. Upon application and consent of the heirs, the administrator may be appointed as the independent administrator. The independent administrator serves without bond and free of court supervision. If there is no independent administration, then a dependent administration is opened. A dependent administration is expensive because no money may be expended without court approval, but it may be preferable where there are significant debts.

What is appropriate for each client depends upon the clients circumstances. A trust may be created in the will to provide for children until the youngest attains age 21 or 25. This way, all of the property will be available to educate the youngest child. The older children may not receive anything until the youngest child is educated. The trustee, a family member, friend or bank or trust company, manages and invests the property and distributes the property to or for the benefit of my children for their health, support, maintenance and education. Guardians may be named in the will or by a separate document to be appointed by the court to care for minor children. The trustee may be appointed to receive insurance and retirement benefits for minor children to avoid a court guardianship of the estate of the minor children.

Each client's situation is different so the ways of avoiding conflict are individual. In general, conflicts may be avoided if the beneficiary does not receive a lesser share under the will than that beneficiary would receive if there were no will. A "no contest" clause, where the contesting beneficiary is "cut out" is not required to be enforced by a court if a contest is brought and maintained in good faith. The court's discretion applies to both will and trust contests. If the beneficiary is not cut out but receives a lesser amount, the potential for conflict may be reduced if the amount provided is sufficient (not $1). If the beneficiary receives assets that are not controlled by the will, such as insurance, then the beneficiary will benefit but in such a way that the beneficiary is not able to interfere with the administration of the estate.

A trust may be created a number of ways but it is usually created at death under the will ("testamentary") or during lifetime by a transfer of property from the owner of the property (the "grantor" or "settlor") to someone (the "trustee") who holds the legal title for the benefit of another, the "beneficiary." The beneficiary has an "equitable" interest in the property but not legal title. The beneficiary receives the use and enjoyment of the property. The trustee has a number of duties that are owed to the beneficiary like, loyalty, impartiality, to safeguard the property, to make it productive and to disclose material facts. The trustee must follow the terms of the trust instrument. For example the trustee may be required to distribute property or income to the beneficiary. The trustee may not use the property for themself, unless the trustee is also a beneficiary. Trusts are used to protect persons who are unable to manage the property, such as minor children or incapacitated persons), to protect the property from the beneficiary's creditors and to preserve the property from immediate disposal by the beneficiary. It is advantageous to manage family jointly owned assets, such as oil and gas, farming or timber rights and other assets that may be more efficiently managed as a whole rather than among a number of owners. A trust may avoid additional probate proceedings in other states, for example, oil and gas interests are owned in Oklahoma and Mississippi by a Texas resident or a vacation home owned in Florida or New Mexico. A trust may be a standby trust to hold assets passing through the will at death or it may be created by the will for minor or adult children.

The least restrictive alternatives must be explored. This would include a durable power of attorney permitting someone to act on behalf of the incapacitated person and a medical power of attorney. A living revocable trust may also help. If none of these documents are sufficient, then a guardianship of the person and/or estate may be appropriate. An alternative to the guardianship of the estate is a section 867 trust where a corporate trustee typically is appointed. If the incapacitated person is married, then a declaration of incapacity by the court is sufficient to place the other spouse in control of all of the community property, if there is only community property owned by the incapacitated person. What if the person named in the will as the executor is unable to serve or is disqualified? An incapacitated person may decline to serve as executor. If the beneficiaries believe that the designated executor is not qualified because of conflict of interest, then the beneficiaries may object to the appointment. This is technically a will contest.

The will should be kept in a safety deposit box in a bank. To obtain the will, it is necessary to obtain the key and be authorized to enter the box. If no person other than the decedent may access the box, then with or without a court order, the bank may allow the designated executor (who has a copy of the will) to enter the box to obtain the will and insurance policies. If not, the court has the forms available for a court order. The executor or beneficiaries should be able to locate the safety deposit box. The location of the will and digital assets, such as passwords and usernames, security codes, should be provided. The name of the lawyer who prepared the will is also helpful.