Estate Planning in Texas: Frequently Asked Questions

Leslie Barrows
 | Published: 
April 22, 2021
 | Category: 
Estate Planning

Frequently Asked Questions (FAQs) About Texas Estate Planning and Probate

The time for wills and estate planning is now, not later when it might be too late to account for unknown events and conditions in the future and these frequently asked questions and answers help people understand why wills and estate planning in Texas is important. Someday we will die, but we could also become temporarily incapacitated due to a medical or physical condition. Being unavailable to make life decisions creates a burden on family and friends who may not be legally authorized to act. Estate planning documents are for everyone and plans for unknown situations should be made when all are well and healthy. An experienced will and estate planning lawyer helps advise clients on being prepared for whatever may happen during and after their lives. Estate planning in Texas is important to protect the individual, their friends, and family.

Estate Planning Attorney Leslie Barrows uses proper estate planning with Barrows Firm clients in divorce and family law cases, juvenile matters, and whenever guardians are involved. Knowing how important it is to have estate planning and power of attorney documents ready when people are alive and well, attorney Barrows frequently offers will and estate planning deals to first responders and members in the community upon whom we all rely, and who need to prepare to care for their loved ones if they cannot.  

Why Do I Need Estate Planning?

Estate planning allows for the control and direction of what happens to property and provides for loved ones during life, and after. An individual estate includes the person’s ownership interests in real estate, bank accounts, investment accounts, insurance policies, retirement accounts, and all personal property such as homes, vehicles, boats, and similar personal property and items. If someone dies without a will, their community estate is distributed by state law. The Texas Estates Code contains intestate succession laws that apply when someone dies without an enforceable will. The laws of intestate succession identify a person’s descendants and distribute the community estate of the deceased, to descendants in certain portions.  

Who Needs Estate Planning?

Estate planning not only covers death but also applies to decisions during life. For example, estate planning involves determining who can make healthcare, business, and financial decisions for another in the event of temporary or permanent incapacity. Estate planning also allows for the appointment of a guardian for minor children in the event of incapacity or death. Wills are an important part of an estate plan, to determine what happens to assets when an individual dies, including the proceeds of life insurance policies and other death benefits that may apply. So even though an individual might not think they have significant assets, it is still important to make sure that funeral arrangements are properly handled and paid, just for one example. Again, in life, and death, proper estate planning is important to all involved family and loved ones.

What is a Will?

A will is a formal legal document controlling what happens to the estate assets of an individual when they die. A written will names the beneficiaries who are the persons who shall receive property and assets through the will, and as well the will names the executor named to carry out the process and wishes of the decedent’s will. In Texas, a will must follow certain formalities to be valid and enforceable. An experienced Texas estate planning attorney assists their client in preparing wills and estate planning documents from simple estates to those with complex assets and beneficiary wishes. It is common for Texas family lawyers to also advise and assist clients with wills and estate planning.  

What is Probate?

Probate is the legal process of satisfying the terms of the will of the deceased, in public proceedings, also called Estate Administration. If someone dies without a will, the probate court will distribute the estate by state laws of intestate succession. And when someone dies with a will, the probate court will admit the will, appoint the estate administration responsibilities, and ensure that the community estate is properly distributed, overseeing the process. In probate court, any legal challenges to the validity of a will, its contents, or acts of administrators can be litigated.

Who Can I Designate as the Executor of My Estate?

Professional fiduciaries make great estate executors because they are not usually named as beneficiaries with any interest in the community estate of the deceased. A fiduciary is an individual or organization authorized to act on behalf of another, putting the other’s interests ahead of their own. A fiduciary is legally and ethically bound to act in the other’s best interests.

Family members can also be executors of estates, but there can be conflict among family members when one person does not agree with the actions or accountings as executors. Many disputes in probate courts involve family members making objections to other family members who were named as estate executors. An estate planning attorney may advise that a client disclose who they are naming as their executor during their life so that no surprises are leading to conflict after passing.

Common Estate Planning Documents: What are About Durable Power of Attorney, and Medical Power of Attorney Documents?

When Texans get a new or updated will, it is common to also update power of attorney and healthcare documents and directives, as well as trust documents. A durable power of attorney document for financial matters names an individual who will be entrusted to handle financial decisions in the event of temporary or permanent incapacity, such as during surgery, if one is in a coma, or one simply cannot make those decisions for certain reasons. A medical power of attorney document similarly names an individual to make sure healthcare wishes and decisions are carried out during a period of incapacity.

What Are Living Wills, Also Called Advance Healthcare Directives to Physicians and Family Surrogates?

Living wills are also used to ensure end-of-life concerns and decisions are carried out as the individual planned, and in Texas, these living wills are known as advance healthcare directives, or also a Directive to Physicians and Family or Surrogates. When an individual is unable to make their wishes known because of illness or injury, these directive documents are important so that critical decisions like life support measures do not need to fall on family and friends. The living will is made by a principal and appoints an agent to carry out directives. Living wills must be made following legally required formalities and they can be revoked by the principal.

What Types of Trust Documents Are Used in Estate Planning?

Trusts are used to hold money, assets, and property interests for the beneficiary of another, where a trustee has the legal power and authority to make decisions in the best interests of the beneficiary. For example, a grandparent might leave money in their will or in a trust, to be used to pay for college and certain life expenses for a grandchild. That money or property in the trust is overseen by the trustee who is authorized to make distributions that benefit the beneficiary, as outlined in the trust. These distributions could pay for anything named in the trust, from education to housing, and whatever life expenses may be identified. Estate planning attorneys advise and represent clients about trusts and the different options to protect assets for the benefit of others.

When Should Wills, Trusts, and Estate Planning Documents Be Updated?

While most wills, trusts, and estate planning documents are written to apply to the circumstances at the time the documents are needed, certain life events require updating all estate planning documents. Examples of major life events include marriage, divorce, birth, death, and anything else that can affect the outcome of an individual’s estate planning wishes. For example, when divorcing, the former spouse might not be a preferred agent for power of attorney over medical or business affairs. Likewise, one might not want to protect the interests of children who shall someday be recipients of a divorce property settlement, in another example. Estate planning documents to be updated upon major life events also include insurance beneficiary designations, and payable on death sections of documents tied to any other life benefit, retirement policy, and similar documents.

For Wills, Trusts, and Estate Planning in Texas, the Barrows Firm in Southlake Helps Texan Families Prepare for the Future Now When All Are Hopefully Well and in Good Spirits