Probate and Estate Planning

This is a complex question. However, a well drafted will can make the probate process much simpler for your loved ones and greatly reduce the need for a trust-based estate planning for many people.

The availability of simpler, “independent” probate administrations reduces the need for revocable trusts in Texas.

A well drafted Texas will can name an independent executor who can settle the estate more easily in terms of time and money, without many of the rules and procedures that must be followed in “dependent” probate proceedings.

There are, of course, still situations where revocable trusts are useful in Texas, especially in more complex estate situations or where more privacy is desired.

In Texas, if a person dies without a will, their property will be distributed according to the law of intestacy found in the Texas Estate Code, which may not reflect that person’s wishes.

Remarried people with children from prior relationships are a key group who need wills. 

For example, in Texas, if a married person dies with children outside of his or her current marriage, the surviving spouse only gets half of his or her spouse's shared community property, while the children from outside the relationship receive the other half of the shared community property and all of the deceased spouse's separate property (although the surviving spouse keeps a life estate in one third of separate property such as the marital residence if it was the deceased spouse's separate property). 

If you are not OK with this arrangement, you need a will, and you need a will anyway to spare your loved one’s a more expensive and time-consuming probate process.

If you are hospitalized and your condition deteriorates to the point you become incompetent to make your own health care decisions, your loved one may not be able to communicate your wishes for treatment unless you designate them as having a medical power of attorney for you.

Similarly, a hospital or other health-care provider may not allow you to access your loved one’s medical records without a HIPAA release. A good example of when a medical power of attorney and HIPAA release can be useful if when a young adult child becomes incapacitated. Without these documents, a health care provider may not allow a parent of the child to receive any information or have a voice in the adult child’s treatment. Unmarried persons who are in a relationship also need these documents.

If your condition is terminal or irreversible, and you are unable to communicate your wishes, a Directive to Physicians lets your doctor and loved ones know whether you choose to remain on artificial life support.

Many types of property can pass to beneficiaries outside of probate, such as life insurance proceeds, proceeds from retirement plans, and different types of financial accounts. Make sure you name beneficiaries for each type of eligible financial instrument. Contact each financial institution to determine their procedures.

We assist with heirship proceedings, probating of wills, independent administration of estates, and other uncontested probate matters such as small estate affidavits and heirship affidavits.