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FAQ

Frequently Asked Questions

Q:

Who inherits my property if I die without a Will in Texas?

A:

Dying without a Will is called dying “intestate.” If you die intestate, the State of Texas decides who will inherit your property, per Section 201 of the Texas Estates Code. Here is a link to a chart showing intestate inheritance rules in visual form: Texas Descent and Distribution. This chart shows the legal effect of not having a Will in Texas, and the rules are often not what a person might expect or want. The good news is that with a properly drafted and executed Will, you get to decide who inherits your property, rather than having the State of Texas do so for you.

Q:

Do I need to have a lawyer prepare my Will?

A:

Leaving your estate in order is one of greatest ways to demonstrate to your family and heirs that you care about their future. When you die, your estate is likely the single largest transfer of assets that you will ever make. Protecting your loved ones and your financial legacy is important, and the amount you spend for quality estate planning with an experienced, local wills, trusts and probate attorney is dwarfed by the cost of potential problems if you decide to “do it yourself.” Your heirs will thank you for taking care of your business for them in advance.

Q:

How often should I update my Will?

A:

Here are a few reasons that it may be time to update your Will:

  • One or more of your executors or trustees have life changes that could affect their service as your executor or trustee, such as a move out of state, mental or physical incapacity, aging, change of relationship or conflict of interest

  • Your children become old enough to be able to serve as your executors or trustees

  • Your financial situation has significant changes (such as receiving an inheritance, retirement, an increase in the value of or sale of your business)

  • You move to Texas from another state

  • You buy or own out of state real property

  • You experience significant life changes such as death of a spouse, divorce, marriage, remarriage or the upcoming potential incapacity of yourself or one of your heirs

Q:

Do all assets pass through a person’s Will?

A:

No, certain assets pass outside of a person’s Will. For example, assets with beneficiary designations, such as life insurance, 401ks, and IRAs will pass according to a proper beneficiary designation. Bank accounts may pass outside of probate if designated as “Joint with Right of Survivorship” (“JWROS”). Accounts with “Pay on Death” or “POD” generally pass according to the POD instructions. Sometimes real estate can pass outside of a person’s Will, depending on the language in the deed(s). Property already owned in trust typically does not pass through a person’s Will. It is important to review your beneficiary designations regularly to make sure they are current and work with your Will and other estate planning documents to accomplish your estate plan.

Q:

How much does it cost to have an attorney draft my estate planning documents?

A:

One familiar answer from lawyers and those familiar with the process is that it will cost “a lot less than it’s going to cost your loved ones if you do not have an attorney draft them.”

The complexity of your personal financial and family situation determines how much time and effort the attorney has to use to prepare these documents. Typically, the cost of estate planning documents is based on the number of hours your attorney will need to prepare them. Attorneys may charge an hourly rate or prepare your documents for a flat fee. Please call us to discuss what is involved and how much it might cost.

Q:

What is a Statutory Durable Power of Attorney?

A:

In Texas, the Texas Estates Code provides for a form of durable power of attorney (a “SDPOA”) that allows you to appoint another person as your agent to handle your financial matters. You can choose to have it take effect immediately or only upon your incapacity. Under the Texas Estates Code, Section 751.00, a person is considered to be "incapacitated" for the purposes of the SDPOA “if a physician certifies in writing at a date later than the date the durable power of attorney is executed that, based on the physician's medical examination of the person, the person is determined to be mentally incapable of managing the person's financial affairs.” A Statutory Durable Power of Attorney does not permit your agent to make decisions about your health care.

Q:

Who should I name as my agent under my SDPOA?

A:

A Statutory Durable Power of Attorney allows your agent to act in your name, and in most cases, you are responsible for the acts that your agent performs in your name. You should choose your agent with this in mind. Your agent should be someone you can trust to act in your best interest. Often, that person is a trusted spouse, adult child or sibling. The powers granted under Statutory Durable Powers of Attorney can give your agent broad powers over your affairs. You can name contingent agents as well, in case your first choice for agent dies, becomes incapacitated, resigns, refuses to act, or is removed by court order, or if your marriage to your agent is dissolved by a court decree of divorce or annulment or is declared void by a court (unless you provided in the Statutory Durable Power of Attorney that the dissolution or declaration does not terminate the agent's authority to act under this power of attorney).

Q:

How long is a statutory durable power of attorney effective?

A:

It depends on the language in the power of attorney. A statutory durable power of attorney ends with the death of the principal, unless earlier revoked. You can revoke your statutory durable power of attorney at any time as long as you still have sufficient mental capacity to understand that you are revoking it. Revocation of a durable power of attorney is not effective as to a third party until the third party has actual knowledge of the termination.

Q:

Why do I need a Statutory Durable Power of Attorney?

A:

You need a Statutory Durable Power of Attorney so that if you are unable to act for yourself, whether due to your incapacity or by the fact that you cannot be present to act, someone can act on your behalf. For instance, if you were to become mentally or physically disabled or incapacitated, if you have a Statutory Durable Power of Attorney, your agent can act on your behalf. Another situation in which a Statutory Durable Power of Attorney is useful is when you are travelling and need your agent to sign documents, such as a real estate deed, on your behalf.

Q:

How often should I update my Statutory Durable Power of Attorney?

A:

You should consider updating your Statutory Durable Power of Attorney if you want to change your listed agents, or when you update your Will or other estate planning documents. For instance, if your named agent or contingent agents move out of state, become incapacitated, or die, you would want to update your power of attorney. Often, parents will update their powers of attorney when their children become of age and are responsible enough to act as agent for their parents if necessary.