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Dying without a will creates additional hassle and expense for those who survive. Teenagers are best advised to prepare a will so that they begin to have a focus on having a financially successful life. Having a will helps teens think about their future as well as about what they own and how much such things might be worth.
Continue reading ‘Why should an 18-year-old prepare a will?’
More and more children are managing their parents’ finances without a trust, power of attorney, or guardianship in place. Usually, one of the parents has added one of their children to their bank account to allow them to pay their bills. Although this arrangement is convenient, it is often only a temporary solution and is usually inadequate to address all of the financial matters that arise. Moreover, many people do not understand the legal consequences of the account agreement; specifically the difference between the “power of withdrawal” and “ownership” of an account. Once the parent’s mental capacity to execute a power of attorney or trust becomes an issue, then a guardianship will mostly likely have to be created to adequately address all of the parent’s financial matters.
Continue reading ‘Managing an Elderly Parent’s Bank Accounts’
Provisions contained within trust agreements called “Exculpatory Provisions” are those that relieve the trustee from liability for certain acts that could otherwise be considered to be a breach of duty(ies) as a Trustee. Examples: 1.) the settlor (the person who is creating the trust) can specify that the Trustee is relieved from liability for certain obligations for which it would otherwise be liable under either the Texas Trust Code or by common law; or 2.) can direct or permit the Trustee to do certain things that would otherwise violate a Trustee duty.
In Texas, the testator (the person making a will) has the power to designate his or her executor to be an “independent executor”. Proper use of the term “independent” to describe the executor in the will means that the independent executor may, after the will has been admitted to probate and Letters Testamentary have been issued to the independent executor, take virtually all estate related action free of the need for any hearings or approval by a Probate Court. Unfortunately, some executors take advantage of this far reaching freedom to abuse their power(s) as an executor (an executor is also a fiduciary). The Texas Probate Code allows a court, after a hearing, to remove the person designated as the independent executor of the estate when any of the following grounds have been proved to the presiding judge:
Any kind of action in which a court is asked to change, modify or otherwise amend the terms of the trust instrument, or to prohibit or permit a trustee to take actions that are not authorized by the terms of the trust, or to terminate a trust either in its entirety or in part, is referred to as a trust modification. Trust modifications are regulated by Section 112.054 of the Texas Trust Code.
Continue reading ‘When can a court make changes to an irrevocable trust?’
What happens when a Will is admitted to probate in one state but there is real estate and/or mineral interests within the State of Texas that need to be transferred to the beneficiaries named in the Will?
Texas Probate Code Section 75 states that upon receipt of notice of the death of a testator (the person who made a will) the person having custody of the testator’s will shall deliver it to the clerk of the court which has jurisdiction of the estate. If an individual who is in possession of a will does not do so, a person may file a sworn written complaint regarding the will or papers belonging to the estate of a testator (or a person who dies intestate [without a will] ). In such circumstances a county judge shall cause that person to be cited by personal service to appear before him or her and to show cause why he or she should not deliver such will to the court for probate or why he or she shall not deliver such important papers to the executor or administrator. The court may then, if satisfied that such person had the will or papers at the time of filing of the complaint, cause him or her to be arrested and imprisoned until her or she shall so deliver them. Any person refusing to deliver such will or papers may also be liable to any person for all damages sustained as a result of such refusal.
It is noted that this Section of the Probate Code does not impose a requirement that all wills be submitted for probate. Instead, the statute’s primary concern is to remedy suppression of a will by an individual in possession of same.
What does it mean to be of “sound mind”?
The requirement of “sound mind” is not specified in the Texas Probate Code. Instead, Texas Courts have determined that the “sound mind” requirement with regard to whether a person has “testamentary capacity” is as follows: The Testator (the person making a will) has sufficient mental ability, at the time of the execution of the will if he or she:
The Texas Homestead Law has historically been designed to protect the property owner with regard to the individual or family residence. There are three primary benefits from a Texas Homestead:
The Medical Power of Attorney and Directive to Physicians and Family or Surrogates are used to plan for situations when a patient can no longer speak for him/her self.
A Medical Power of Attorney (formerly a Health Care Power of Attorney) lets you appoint someone you trust to make decisions about your medical care if you cannot make those decisions yourself. The statutory form for a Medical Power of Attorney is set out in §166.164 of the Health and Safety Code and is a mandatory, not permissive form, as is the accompanying disclosure statement. The purpose of the disclosure statement is to provide information and understanding concerning the nature of the Medical Power of Attorney. Section 166.162 of the Health and Safety code states that a Medical Power of Attorney is not effective unless the principal, before executing the Medical Power of Attorney, signs a statement that the principal has received a disclosure statement and has read and understood its contents.
