Questons
& Answers
What
is a Power of Attorney?
A power
of attorney is an instrument by which one person (the principal) grants
to another (the agent) the power to perform certain acts on his or her
behalf. Two types of powers of attorney are common in the estate planning
field, namely the power of attorney for health care and the durable
power of attorney.
The Texas
Probate Code provides a means for an individual to designate another
person to handle his/her affairs. The Durable Power of Attorney may
take effect immediately or only upon disability. It can be drafted to
provide narrow or extensive powers in the agent. It can provide for
a definite termination or be perpetual until specifically revoked by
the maker. A properly drafted and executed Durable Power of Attorney
is inexpensive and should avoid the necessity for a costly court managed
guardianship.
What
is a Will?
A "Will",
or Last Will & Testament, is the vehicle by which you control the
disposition of your property and the orderly settlement of your worldly
affairs upon death. It is the device used to pass your legacy to the
person(s) you choose. The vehicle best suited for those purposes is
a written document meeting the requirements of Texas law. That document,
called a Last Will & Testament, is a unique kind of document because
it is expressly designed and intended to become effective only upon
the death of its maker. Moreover, under Texas law, it can have no legal
effect unless and until it is admitted to probate.
Why
have a Will?
A Last
Will & Testament lets you control to whom and how your property
will be distributed instead of the State of Texas. It provides an inexpensive
option for the orderly settlement of your estate. It can provide, through
a trust or custodianship, the structure and leadership for the care,
education and support of special people in your life. A Will often prevents
conflicts and preserves peace within your family and circle of friends.
And, it allows a person of your choice to oversee that your affairs
are settled and that your final wishes are carried out. Knowing that
you have taken care of those matters and simplified your "passing"
will give you peace of mind and it will minimize the headaches and heartaches
for those you love.
Who
should have a Will?
Anyone
who cares hos his/her property is distributed upon his/her death, or
who would handle matters for those she or he leaves behind, or be guardian
for minor children. After all, "you can't take it with you".
When
should a Will be prepared and signed?
A Will
needs to be prepared and property executed (signed by the principal
and witnesses) whild you still have legal capacity.
Thus, anyone
who wants a Last Will and Testament should have one prepared, and sign
it in accordance with the applicable state law while he/she is healthy
and has full control over his/her mental functions. If you wait until
an accident or an illness strikes, it could be too late.
Should
I write my own Will?
No.
A
Will is a critically important legal document. IF YOU DIE YOU WILL NOT
BE AROUND TO EXPLAIN WHAT YOU INTENDED. A Court will have to interpret
your Will.
Anyone
who thinks she or he would be better off without the self-prepared Will
can contest it. If it does not meet some very stringent tests it can
and will be disregarded. The costs of litigation can -- and too often
do -- wipe out an estate.
What
about form books and computer programs?
Most forms
in books are terrible. If they are not adjusted for the laws of your
state - and most do not even purport to be - they may be totally off
base for you. Even if they are supposedly tailored to residents of your
state, very often they are not. Most computer programs are not much
better when used by a non-lawyer. Just look at the huge disclaimers
they put on the box or in the instructions. If something goes wrong,
your heirs are out of luck.
Where
do I keep my Last Will and Testament?
You need
to keep it in a safe place such as a fire proof lock box or safe, or
you my file it for safekeeping with the Probate Clerk at the courthouse.
Be sure to tell your executor and alternate where to find it. The original
will be needed after you die. The important thing is that some "knows"
where to find your Original Last Will and Testament. If your executor
cannot find the original, it will cause difficulty after you die.
You should
also keep track of copies. If you change your Last Will and Testament,
you should attempt to destroy all copies and any will that you have
changed.
What
reasons are there to change or update a Will?
Typical
reasons for changing or updating a Will are:
- You
marry or divorce
- Birth
or adoption of a child
- Death
of a family member or beneficiary
- Changes
in the Federal Estate Tax laws or State Tax laws
- Substantial
change in the value of your estate
- Change
in the nature of your property holdings - for example, if your Will
leaves the farm to a son, and the ranch to your daughter, and half
the balance to your son and daughter, and then you sell the farm,
your daughter would wind up with more (the whole ranch plus one half
of everything esle) than your son (who would get only one half of
the balance).
- A Guardian,
Executor or Trustee moves away, dies, or is no longer willing or able
to serve
- Your
children are no longer minors, or are old enough to handle financial
matters on their own
- You
move to another state
- You
wish to eliminate gifts to certain beneficiaries
MAJOR WARNING.
NEVER TRY TO MAKE CHANGES IN A WILL ON YOUR OWN! Writing in the margins,
crossing out words, lines, or sections of the original Will invites
confusion, potential ambuiguity, and likely nasty and protracted Will
contests.
What
if there is no Will?
If a person
dies without a Will (know as dying "intestate"), the probate
court appoints a Personal Representative frequently called an "Administrator"
to receive all claims against the estate, pay creditors, and then distribute
all remaining property in accordance with the laws of the state.
What
is Probate?
Probate
is a term used to describe the process that must be followed to authenticate
a Last Will & Testament and implement its directives. That process
is commenced by filing an application to have the Will reviewed by a
probate court judge for the purpose of determining whether it meets
the requirement of Texas law and constitutes a valid and enforceable
testamentary instrument.
Is
Probate Necessary?
Every Last
Will & Testament must be admitted to probate before it can have
any legal effect. No executor, trustee, guardian or custodian named
in the Last Will & Testament has any power or authority to act in
any of those capacities until and unless the Will is admitted to probate.
While probate
is necessary to activate and enforce the provisions of a person's Last
Will & Testament, it is not always necessry to probate a person'
Will. In other words, the existence of a Last Will & Testament does
not impose a legal requirement that it be probated. Under certain circumstances,
there is no need for the appointment of a representative to wind up
a decedent's affairs or to distribute his or her property. The problem
is, how can you know for sure now that your
loved ones will not need that option at the time of your
death? If you have a Will, it can greatly simplify and
reduce the expenses associated with death. If you don't, that option
is not available.
Please
feel free to contact us if you would like more information on any of
these subjects.
1205
Airline Rd., Corpus Christi, Tx. 78468
Phone: 361.993.1313
Not
Certified by the Texas Board of Legal Specialization
Copyright
© 2002-2005 Flakhani.com. All rights reserved.
Disclaimer
and Terms of Use
Website
Design by Professional Business Solutions | Prosition.com
