Posted on | January 25, 2013 | No Comments
The definition of a will is easy. Most people know that a will is a legal document which deals with the disposition of a person’s property at death.
A Texas will has a few basic requirements:
First, the will must identify the testator;
Second, the will must be written with “testamentary intent”;
Third, the person who makes the will (“testator”) must have “testamentary capacity” to sign the will ( i.e., must be over the age of eighteen, and of sound mind);
Fourth, the will must be executed with the requisite testamentary formalities.
If you have questions regarding the above requirements, please contact us at (214) 780-9696.
Posted on | January 24, 2013 | No Comments
The Texas Statutory Durable Power of Attorney is a very powerful document. However, many myths surround its use. The following provide a few examples.
The most common myth that we encounter is that this document survives death. It does not. The document essentially creates an agency relationship. If you think about it – when the principal dies the relationship dies.
Another common myth is that the document does not survive the incapacity of the principal. In fact, the document can be effective immediately, or upon the principal’s incapacity. Its chief use is during the incapacity of the principal.
Another myth is that if I sign one, a financial institution has to accept it. The truth is that they may not. A great example of why you should not use a document service to prepare one. A Texas probate and estate planning lawyer can be a great asset if a financial institution refuses to accept a statutory durable power of attorney.
Another myth is that I can make gifts under a power of attorney. The truth is that if gifting authority is desired then the statutory durable power of attorney should include specific provisions regarding gifting.
Yet another myth is that once appointed, an agent can act independently. The truth is that an agent has a duty to inform and account to a principal.
A final myth is that you can just use a form. The form that you have may not include elder law planning provisions that deal with medicaid, trust transfers, trust creation, or even agent compensation.
If we can answer any specific questions regarding the creation or use of a Texas Statutory Durable Power of Attorney or Business Power of Attorney, please contact us at (214) 780-9696.
Posted on | October 7, 2012 | No Comments
The Division of Property: Inheritances and Property in Probate
I have had a few clients come to me recently who have asked whether property that is still in probate needs to be disclosed in their divorce. The question often arises because they are worried that disclosing this property may result in the Court awarding them less property in a final disposition, or because they don’t want their spouse going after the property. In Texas, the Texas Family Code characterizes “property acquired by gift, devise, or descent”, as separate property. This means that the property is not part of the community property subject to a division upon divorce. Therefore, a spouse does not have any community property rights to property that is acquired by those methods and the community property is subject to a just and right division.
This brings the next question, what if someone has died leaving me property that is currently in probate, does that property need to be confirmed as separate property? My answer is yes, the reason being that under the Texas Probate Code legal title to property vests in the beneficiaries upon the death of the decedent. This rule applies to the beneficiaries of a decedent who dies intestate and testate (with or without a will). There is a lot of legal jargon in this blog post, but the fact is, when a person dies, you better start protecting your property immediately by having petitioning the Court to recognize it as separate property and not community property. I hope this article has been helpful. If you have more questions, contact The Wright Firm, L.L.P. at www.thewrightlawyers.com or call us at 972-353-4600 to set up a consult with one of our attorneys.
Posted on | November 11, 2011 | No Comments
To have a complete estate plan, it is necessary to execute a HIPPA Authorization form in conjunction with a physician’s directive and other estate planning documents. In 2003, the Federal Government passed the Health Insurance Portability and Accountability Act (HIPPA), which protects the privacy of patients’ health care records. Under the Act, hospitals, doctors, insurance companies and any other healthcare provider may not disclose or share private information with anyone but the patient, unless given authorization.
The importance of the HIPPA Authorization becomes apparent in a situation where an individual becomes incapacitated and cannot make their own medical decisions. Because the consequences of violating the HIPPA laws can be severe, many healthcare providers will not release any information to a family member or friend even if they are named as an agent in the physician’s directive. If the medical provider refuses to release the patient’s information, the agent with decision-making authority may not be able to make the best decision regarding the patient’s healthcare. Therefore, it is advisable to appoint an agent via the HIPPA Authorization to avoid any hesitation on the part of the medical provider or insurance company to provide the necessary information when time is of the essence.
For information on Texas probate lawyer to find a Dallas Probate Attorney, contact The Wright Firm at 972-353-4600 or visit our website at www.thewrightlawyers.com
Posted on | November 8, 2011 | No Comments
Nonprobate assets are interests that pass at death other than by will or by intestacy. Nonprobate assets typically fall into one of four categories: 1) property passing by contract; 2) property passing by right of survivorship; 3) property held in trust; and 4) pay on death arrangements.
Property passing by contract generally include life insurance proceeds and death benefits under an employee retirement plan. In these contracts, the insured /employee will designate with the carrier a beneficiary who will automatically take upon the insured/employees passing.
Property held in the name of the decedent and another person as joint tenants with right of survivorship is another form of nonprobate assets that are not transferred through a will. Automobiles, motor homes, boats and real property can all be registered with a right of survivorship form between two or more persons.
A will can only dispose of property that a decedent owns at the time of death. Therefore, if the decedent established an inter vivos trust and transferred property into that trust, he or she is no longer the owner of that property, the property becomes that of the trust. Therefore, legal title will remain in the trustee after the decedent dies and the trust will continue.
Pay on death or transfer on death provisions can be used in a number of different scenarios to help avoid probate. Pay on death arrangements can be used for bonds, mortgages, promissory notes, securities accounts, contracts and bank accounts.
Converting as many assets as possible to nonprobate assets is an effective tool in estate planning. Having nonprobate assets saves time, money and headache by simplifying the passage of title through probate court proceedings.
For information on Texas Probate contact The Wright Firm at 972-353-4600 or visit our website at www.thewrightlawyers.com.
Posted on | November 1, 2011 | No Comments
The 82nd Texas Legislature passed new legislation that became effective on September 1, 2011, which included several changes to the Texas Probate Code. One of the most notable changes is to Section 59 of the Probate Code. Specifically, SB 1198 amends Section 59 to allow for an additional process for a will to be qualified as self-proved.
Pursuant to the old way, the testator of the will and his or her witnesses had to sign the will in multiple locations for the will to be considered self-proved; once under the attestation clause and once under the self-proving affidavit. The new legislation allows the attestation clause and self-proving affidavit to be combined, therefore bringing ease and simplicity to the execution of wills.
The change is not mandatory, but is optional depending on the preference of either the drafting attorney or testator. The new self-proving procedure is available for wills signed on or after September 1, 2011.
If you or a family member needs Estate Planning advice, please contact The Wright Firm, LLP for a consultation at 972-353-4600 or visit us on the web at www.thewrightlawyers.com.
Posted on | October 14, 2011 | No Comments
Put simply, yes. A will cannot be admitted to probate more than four years after the testator’s death. However, if the time has lapsed and the offering party can show that he or she was not in default in failing to present the will within the four-year period, the will may be admitted to probate. Tex. Prob. Code Ann. § 73. If a will is offered for probate more than four years after the decedent’s death, notice must be given to the decedent’s heirs. Tex. Prob. Code Ann § 128B.
If you need help probating a will, please contact The Wright Firm, LLP for an consultation at 972-353-4600 or visit our website at www.thewrightlawyers.com.
Posted on | September 30, 2011 | No Comments
Texas is among 20 or so other states that recognize handwritten wills, known as a holographic wills. A holographic will must be completely in the Testator’s handwriting and signed by the Testator. A holographic will can be written on anything, even a paper that contains printing, as long as the printed words are not incorporated into and made part of the will. Holographic wills also do not have to be dated or made in the presence of witnesses.
If holographic wills are valid in Texas, then why is it necessary to have a formal attested will you might ask? Litigation is prevalent when a holographic will is admitted to probate; the most commonly litigated question concerning holographic wills is whether a letter or other written document is intended to be a will. In order for holographic wills to be entitled to be probated, it is essential that testamentary intent be shown.
In order to avoid litigation, it is highly recommended that you have an attested will (contains the necessary testamentary intent and is signed in the presence of two uninterested witnesses over the age of 14) drafted by an experienced estate planning attorney. Please call The Wright Firm, LLP today for all your estate planning needs at 972-353-4600 or visit our website at www.thewrightlawyers.com
Posted on | September 3, 2011 | No Comments
No. Texas law provides that any and all provisions in a will with regards to a former spouse are null and void. Specifically, Texas courts have held that the provisions in favor of a former spouse “must be read as if the former spouse failed to survive the testator.”
It is still important to update your will after going through a divorce. Most importantly because your current plan for disposition may not mirror the plan you originally had when you drafted the will prior to divorce. For example, you may choose to leave more to your children or your siblings now. Additionally, under the old will, you may have had your former spouse be the trustee of your children’s trust. After a divorce, you may want to change who controls the funds for your children in the case something happens to you.
If you have questions about how your divorce will affect your estate plan, please contact the Wright Firm, LLP and we will be happy to advise you about your rights at 972-353-4600 or visit our website at www.thewrightlawyers.com.
Posted on | August 23, 2011 | No Comments
Texas courts allow self-proving affidavits to validate a will without requiring family members or friends to offer testimony or evidence at a hearing to determine if the Will is really that of the decedent.
The self-proving affidavit is made and signed at the same time as the Will. It requires a declaration from two witnesses that the author of the Will signed it voluntarily, was of sound mind and that the document was in fact the author’s Will.
The author of the Will, as well as the two above-described witnesses are required to sign the self-proving affidavit in the presence of a notary public. The witness must not be beneficiaries or related to the testator or the family. The notary also must sign the document, swearing that the witnesses signed the document in his or her presence.
Adding a self-proving affidavit to your Will will save any heirs the time and trouble of proving to the courts that the Will you created is really yours. If you need help drafting your Will to include a self-proving affidavit, please contact the Wright Firm, LLP today at 972-353-4600 or visit our website at www.thewrightlawyers.com .keep looking »