Common Probate Questions

We are frequently asked questions in regard to probate law, estate trusts, and other areas that we specialize in. In order for the average person that is not familiar with the ins and outs of the legal system to understand the process better, we have provided answers to the questions that are asked most frequently. If you have a question that isn’t listed here please go to our contact page and fill out the form—we will try to answer any questions that comes our way and may even  include them on this list our our blog in the future.
 

 

What is a living trust?


A trust is a legal document that has legal effect at the time it is created. It can prevent the need for a guardianship of the estate and, if the trust is fully and properly funded, can eliminate the necessity of probate.


I heard that a living trust is better than a will. Is this true?


A living trust is often used as an alternative to a will. Although Texas probate can be relatively simple compared to probate in many other states, a trust can, under certain circumstances, avoid both a guardianship and probate. Your particular circumstances need to be evaluated before deciding whether a will or trust is more appropriate for you. There are many situations in which living trusts are appropriate and are a better estate planning solution than a will.


What is a will and why should I have one?


A will is a document that controls the passage of your property upon your death. Most people, generally speaking, benefit from having a will. Having a valid will in place at your death can help make the administration and distribution of your estate easier for those you have left behind. Most of us are concerned, to some degree, at least, about what happens to our property at our death and in whose hands our property ultimately falls. It is because of this concern that a will is a good idea for most everyone.


I set up all of my assets so that they pass by beneficiary designation, or are payable on death to certain persons so I can avoid the hassle and expense of doing a will or trust. Is this a good plan?


A plan like this may work in some situations, but in most cases it fails to cover many contingencies which could occur, with disastrous results. For example, if the person you designate on a beneficiary designation or signature card dies before you do and you do not change the designation, the property could go to someone you do not want. A well drafted will or trust covers many more contingencies. Also, if the person who ends up with the property is a minor or somehow incapacitated, insurance companies, brokerage firms and banks will not pay proceeds to or transfer assets without a guardianship or trust. A well-drafted will may contain a trust for minors and incapacitated persons, but without that trust an expensive, cumbersome guardianship is the result. There are also potential negative tax consequences of using only beneficiary designations or pay-on-death designations to pass property at your death. For example, if your estate is a taxable estate for federal estate tax purposes, a well-drafted will or trust can provide for creation of a trust after your death to save taxes. If you do not have a will and/or trust, your loved ones could end up paying estate tax which could have been avoided if you had a properly drafted will.


I just married for the second time. I have children from a prior marriage. I would like to make sure that a portion of my assets go to my children. Would having a will help me in this situation?


Yes. If you are concerned about making sure that some of your property goes to your children, you can take certain steps in a will or trust to help accomplish those goals. For example, you could make a gift of a certain amount of cash or a certain percentage of your estate to your children, outright or in trust at your death (however, there may be negative tax consequences in doing this). You could also leave property in trust for the benefit of your spouse with what is left of the trust passing to your children at your spouse’s death. This type of arrangement can have potential problems as well. These are just two examples of strategies you can implement in this situation. However, the appropriate provisions to include in your will or trust depend upon your family dynamics and your estate planning objectives. However, this too is extremely personal and the appropriate provisions to include in your will depend on your family dynamics and your estate planning objectives.


How much does a will or trust cost?


This question is hard to answer because the complexity (or lack thereof) of each individual’s situation will determine the amount of time that is necessary to prepare the will or trust. Many estate planning attorneys bill hourly for their services while others may work on a flat-fee. When you hire an attorney to assist you in preparing a will, make sure that you fully understand the fee structure and that you are comfortable with the fee arrangement. If you have questions regarding the fee or the fee arrangement, don’t hesitate to ask.


I have a child who has special needs. What should I do in my estate planning to maximize the benefit to my child?


Supplemental needs trusts (SNT’s) are available for certain individuals with documented special needs. These trusts can be created by a third party such as a parent or relative or by the individual with special needs. Different rules apply to each type of trust, but the goal is to maximize any type of governmental benefit which may be available as well as to maximize the care and comfort which can be provided to the special needs individual. We are experienced in providing these services.


Will Contests & Undue Influence: What can I do if I think my relative has been unduly influenced to leave (or give) property to the person who was doing the undue influence?


The basic grounds to invalidate a will or trust on the grounds of undue influence are the susceptibility of the testator (the person making the will) to influence, and the opportunity and disposition of the person allegedly exerting undue influence, and the result indicating that undue influence was exerted. Factors such as solicitation, importunity, flattery, over-persuasion, and fraud or misrepresentation have been found to be sufficient to establish undue influence. Other factors which can come into play include, but are not limited to, complete dependency on others, such as twenty-four caregivers; deviation from a long term gift or estate plan that was in place for a significant period of time; a huge age difference in a new found romantic relationship; frail or bad health, among others.


Will Contests & Lack of Capacity: What can I do if my relative did not know what he/she was doing when he made his will (or trust)?


Proving that a person did or did not have the necessary mental capacity to make a valid will or trust (there are different standards for each) is often determined by the decedent’s medical records and physicians.


Breaches of Fiduciary Trust: If the trustee of a trust has done inappropriate things with trust assets, what are my rights as a trust beneficiary?


The Texas Trust Code and the common law impose many strict duties upon the trustee. Among them are the duty to account, to refrain from self dealing and the duty to place the beneficiary’s interest(s) above those of the trustee. There are remedies available to obtain accountings, to terminate the power of attorney, to recover property unjustly transferred, and to collect damages as a result of the failure of the attorney in fact to meet his /her fiduciary obligations.


Powers of Attorney & Abuse: What can I do if someone is abusing a power of attorney that he/she obtained from my loved one?


Many people abuse powers of attorney and fail to keep the duties owed to the person who appointed them as their “attorney in fact.” There are remedies available to obtain accountings, to terminate the power of attorney, to recover property unjustly transferred, and to collect damages as a result of the failure of the attorney in fact to meet his/her fiduciary obligations.


Probate Litigation & Emergency Guardianship: What can I do if a family member is in imminent danger of being injured physically or financially?


The Texas Guardianship code provides for the appointment of a temporary guardian under certain circumstances, when failure to take immediate action can have serious consequences.


Estate Administration & Executor Misconduct: Someone has been named in a loved one’s will to serve as the executor, but I think that person would not be appropriate considering all the circumstances. What are the chances of preventing such a person from being appointed by the probate court as executor?


It depends upon the facts and circumstances of each case. We may be able to develop facts proving an unacceptable conflict of interest or find other grounds to disqualify a person from being appointed as executor. Although executors may commit acts which can result in their removal as the executor of an estate, it is far better to file an opposition (provided there is a reasonable basis to assert such an opposition) before the probate judge appoints the person in question as the executor.