Category Archives: Will Execution

The importance of a last will and testament

We believe nobody should die without a will. There are many reasons why executing a will is important to both the individual and the family. One of the primary motivations is that a will allows a person to make the right decisions for his or her particular assets, family dynamics and desired legacy.

Some Texans likely believe that one must have wealth in order to need a will. That isn’t the case. It’s important that even with minimal assets, cash or personal property, a will allows you to be the decision-maker. Otherwise, a court will decide. One of the focuses in our law practice is to help clients understand the advantages of preparing a will – the protections it can offer to families under the law. It also can help families avoid any bickering, emotional upset and estrangement that might result if they disagree about who inherits what.

When there is high value to an estate, challenges can be made by family members who don’t agree with a will’s provisions. It’s for this reason we take the time to carefully craft the proper wording of our client’s directions. Words that clearly communicate the writer’s intentions, properly in accord with Texas law, are critical to minimizing any misconceptions family members may have that could lead to disputes.

Reading our practice page can provide more insight into the value of having a will. It is one of the cornerstones of a solid estate plan. It may be that it only makes sure the family heirlooms are given to the correct children or, in the alternative, someone is deliberately excluded from any distributions. We can provide a personalized analysis regarding legal protections under estate and probate laws.

Protecting your family after you are gone is an admirable goal. There will be many things you can’t control about the future. A properly executed last will and testament is one aspect that you can.

Why do I need to have a will prepared?

Most Texas residents are aware that they should have a will drawn up to protect their family and their assets after they are gone. However, it is surprising how many people do not heed this advice. Most people think that it is no big deal because their assets will just go to their spouse or children if something happens to them.

However, that is an uncertainty. This is exactly why a will is important. It can remove the uncertainty. Without a will, a probate court — which you can liken to a stranger — gets to decide who gets your property and assets. They could end up in the hands of your spouse and children just the way you would want them to, but you don’t know that for sure.

You may be thinking that you don’t have a lot in the way of assets, so why bother? There are many more good reasons for having a will drawn up even if you don’t have a lot. For instance, there may be personal items that mean a lot to certain family members, and may just be thrown away by others. If you have multiple children, do you want to take the chance of your children getting into a feud over your belongings?

If you have had more than one marriage, and have children from a previous marriage, you may need a will to make sure that those children get a portion of your assets. Even if the family appears to all get along well, it is surprising to know how many family relationships where more than one marriage is involved crumble when the patriarch or matriarch passes away.

By having a will drawn up and specifying who gets what, you have narrowed the chance of your property or assets being held up by probate court, which can go on for months sometimes. If the validity of a will is contested by one of your heirs, it is possible that it could still go into probate, but the likelihood is much slimmer than with no will at all.

Not only are you protecting the ones you love with a will. You will get peace of mind in this area of your life.

Dying without a will may result in troubled funeral arrangements

In past blogs, we’ve covered a number of consequences of dying without a will. A recent news story from another state involving a transgendered individual illustrates another reason individuals may want to invest in a will: to protect wishes regarding funeral or burial arrangements.

The story involves an individual who was born as a man but was living as a woman at the time of death. The individual had legally changed her name from a male first name to a female first name. She died suddenly in October of a brain aneurysm.

Friends and coworkers who identified with the individual as a female after years of seeing her with long hair, makeup and female clothing report being surprised when arriving at the funeral home. The individual’s hair had been cut, and the body was presented in men’s clothing. A published obituary reportedly made no mention of the individual’s life as a women but did detail a failed marriage and thing such as a love of jazz and baseball.

Coworkers and friends are reportedly upset at the presentation of the individual and the tributes, which were arranged by the individual’s parents. Friends writing on the memorial page are referring to the individual as a female, and some have been outspoken in news media about the issue. The family has not chosen to comment publicly on the issue, stating that it is a family situation.

Not every funeral will involve a gender issue, but many people have specific wishes for how their remains should be treated. One example is the choice between traditional burial and cremation. A will can lay out some of these particulars, reducing burdens on loved ones and ensuring arrangements are in keeping with your personality and wishes.

Source: NY Daily News, “Transgender woman buried by family as a man at Idaho funeral” Nicole Hensley, Nov. 24, 2014

Who has access to a person’s last will and testament?

Wealthy estates in Texas are often passed down from generation to generation. So how does it happen? With all family members gathered into the family lawyer’s conference room after the head of the family dies — where the attorney then reads the will aloud to the hopeful attendees like we see on television? Not really, or not as a general rule anyway. Wills do not have to be read aloud or with all parties present.

In normal circumstances, the attorney mails a copy of the will to the relevant parties, which is usually the executor of the will and the beneficiaries listed in the will. The executor of the will is the party that has been named by the deceased to be responsible for ensuring that his or her last will and testament is carried out.

What about disinherited heirs who may have been in a previous will? Do they get a copy? By law, a copy is not required to be sent to them; however, an attorney can send them a copy if they believe they will be challenging the will. This could speed up the probate process if the disinherited heirs make a decision to fight the new will. When a will goes into probate, it is made a public record anyway.

What about pour-over wills? A pour-over will is a will that declares that the estate goes to the living will at the time of death — where it will be disbursed by the trustee of the living will. In this case, if the executor of the estate and the trustee are the same person, a copy of the will is sent to the trustee and to the beneficiaries. If the executor of the estate and the trustee are different, a copy only needs to be sent to each of them.

Pour-over wills have pros and cons. A pour-over will, along with a living will, can keep the estate owner from having to put all of his or her assets into the living will while he or she is alive. On the other hand, the assets in the will may end up in probate, while the assets in the living will do not have to go to probate court. Also, wills become public records when they go to probate, and living trusts are private and are not made public.

Source: about money, “What Happens at the Reading of a Will?” Julie Garber, Sep. 17, 2014

What are some basic will requirements in Texas?

The basic requirements that make a will valid in Texas are similar to what makes a will valid across the country. In fact, in most cases, a will is still valid even when a person moves states as long as the will execution is legal.

According to the Texas Estates Code, not everyone can execute — or legally sign — a will. A person must first be deemed of sound mind. Unless the person is married or serving in the armed forces, he or she must be 18 years old or older to execute a will.

The will must be signed by the person making the will or by a legal representative of that person. At the time the will is signed, at least two witnesses who are 14 years old or older and are considered credible must sign to indicate they witnessed the will’s execution. The witness requirement is waived if a person writes and signs an entire will in their own hand; this is known as a holographic will.

The Estates Code says that a will can include directions about how property will be distributed among heirs. It may also include a list of people to be disinherited; those people would not receive property under the will.

In some cases, individuals may create a self-proved will. Such a document is accompanied by an affidavit that attests to the validity of the will. Numerous options exist for completing a legal will, and drafting a will may not be the only thing a person can do to protect heirs and the estate. Understand all estate planning options and how those tools work together is the best way to ensure your wishes are carried out.

Source: Texas Estates Code, “Fundamental Requirements and Provisions Relating To Wills” Aug. 15, 2014

Texans would be wise to plan for family’s future with a will

They say the only two certainties in life are death and taxes. Texas is one state replete with complications that can occur involving the tax implications of a death.

Consider the case of an elderly mother who wanted to provide for her children after death. Her estate was to be distributed in equal amounts to all her children, but questions arose among the siblings regarding the high costs of legal fees to advisers, as well as a potentially large part of her estate to be taxed.

The woman’s children had estimated her liquid assets to be about $300,000 and her home at around $90,000. Taxation guidelines can be tricky, so determining what will be taxed and how her property will be distributed are best resolved sooner than later. The proposed heirs would be wise to consult with a financial planner specializing in wills, guardianships and beneficiary issues. Frequently, estate advisors are able to provide valuable input.

Unless a person already used up a lifetime cap of exorbitant gift giving, in the state of Texas, an estate valued under $5,340,000 would fall under a gift tax exclusion for each individual in question. This mother’s asset value would not be taxed under federal law. Anyone inheriting assets under that amount would not be subject to assessment on gifts or an estate.

Another piece of good news is that Texas probate is not as expensive a process as it is in other states. The issues would be slightly more complicated if the principal held properties in various states and resided in another.

It is always a good idea to confer with a professional who is dedicated to keeping up with ever-changing estate planning laws so that a love one’s final wishes regarding guardianship, heirs, beneficiaries, distribution of assets and power of attorney can be clearly spelled out in a last will and testament. This is especially crucial if the person becomes incapacitated. Medical directives to physicians and family members may be unpleasant topics, but discussing issues now will deters family squabbles later. For this reason, the mother and children in this case should turn to a reliable source to provide unbiased information to secure the future of her beneficiaries.

Source: The Dallas Morning News, “Minimize Taxes Upon Death” Trudy Turner, Jul. 10, 2014

Texas elderly now providing end-of-life directives, wills

Recent events in the medical community indicate that people are beginning to view passing into the afterlife with considerably less distaste than in previous years. Such trends are evident in Texas as well as across the nation.

The number of elderly individuals who have drawn up a will in the last few years has almost doubled. These trends have not had an effect on hospitalization in the past.

Documentation regarding end-of-life care may be considered a way to allow that a person’s final wishes are respected. It also indicates an increasing desire for an individual to discuss his or her passing with family and loved ones.

One case that made headlines in Texas was the widely-discussed case of a pregnant woman who was brain-dead, but had to be kept on life support due to conflicting opinions over how to interpret state law. The court finally ruled to respect the family’s wishes to disconnect her from the ventilator.

While medical personnel is encouraged to discuss end-of-life directives with their patients, there continues to be little effect on the hospitalization of the patient or possibility they will die at their homes. On the other hand, many physicians are of the opinion that it is critical to consider family dynamics and cultural factors before having this type of discussion.

An advanced directive, as well as a living will, allows you to communicate your wishes as to how you envision your future medical care. In the event you cannot effectively manage your estate planning or your final wishes in the state of Texas, you may issue a physician directive, power of attorney, or other provisions that enable you to involve professional assistance in making your wishes known. It is to your advantage to consult with an entity that can walk you through the process of clearly communicating your final wishes, so as to make sure you pass to your final resting place with peace of mind.

Source:News Medical, “Study: A record number of elderly people are completing living wills to guide end-of-life medical treatments” No author given, Apr. 03, 2014

Protecting your family farm for the next generation

Texas farmers and ranchers often pass down their land and occupation to their children. This is their legacy. However, protecting the family legacy to ensure that you are making the most of it takes planning.

An economic development consultant says, “When it comes to planning versus no plan, it’s an easy decision.” He also points out that you have two choices: either you decide what happens to your children’s legacy or the court decides.

Divvying up farm or ranch property for your children is usually more complicated than just drafting a will. Sometimes there is one child who is more interested in working a farm and continuing the legacy than another child. You may want to gift some of the farm or assets to them while you are still alive. At some point, one generation may want to retire from maintaining the farm and start the next generation on another path.

One way of dividing up a farm or ranch business to pass it along to heirs while you are still living is to set up the family business as a legal entity like an LLC. This way, you can divide it up by shares. Whoever owns over 50 percent (51 percent or more) of the shares is in control of the entity, so if you want to remain the controller, limit the shares you portion out. Your shares can then be willed to whomever you want to take over after your death.

The economic development consultant also recommends good communication between family members and getting advice from outside trusted parties. You want to be as fair as possible to your heirs if you intend to keep harmony in the family. Discuss your estate planning and wills regularly with your legal and financial advisors to see if changes are in order. In addition, don’t neglect to determine the tax implications before embarking on any legacy estate planning decisions.

Source:Agri-View, “Legacy planning addresses family issues, even health care” No author given, Mar. 31, 2014

Plan for your future with an advanced directive or living will

As we make our way down our chosen path of life, we sometimes get wrapped up in the now, and not think that someday we might be unable to function on our own. In this case, we need to consider planning drawing up a will and an advanced directive.

If an illness or a debilitating disease occurs, we might lament not having planning for a will or for an advance directive. This applies to civilians in Texas as well as to those in service to our country.

If and when the time comes you are unable to make decisions regarding your medical care, you must choose someone you know and trust who can act on your behalf.

The person you choose to have durable power of attorney will be a designee to act as the decision-maker in your health care. It should be a trusted individual, such as a friend, guardian or family member. In the absence of this choice, your physician will choose a person for you based on your preferences.

The individual should be aware of your plan for medical treatment and how those decisions should be carried out. You need to make your wishes clear in a written format while you still have the lucidity to do so.

An advance directive can be provided for any Veterans Affairs or civilian hospital. Your directions should include a living will as well as a durable power of attorney for health care. A living will includes an advanced directive because you specify what your choices consist of regarding future treatment options, such as a provision for sustaining life or any preferential medical care.

An advanced directive is your decision and is your right to make sure your wishes are respected.

It is advisable to provide a copy of your advanced directive to your doctor to be filed in your medical records, as well as for you to keep one in a safe place. It can be updated at any time.

Whether you are a veteran or a civilian, an unexpected state of incapacitation or serious illness may be too late to draw up a will or advanced directive. There is help out there to take care of this in advance whenever you decide you are ready to take this important step.

Source:ROTOVUE, “Make a living will or advance directive” Luis J. Alers-Dejesus, Feb. 12, 2014

Make sure your estate is prepared for the new year

It’s a brand new year, and you may be thinking about making some changes – maybe losing a few pounds, exercising a little more, or saving some money. Those are all good things, but it may also be a good time to get your affairs in order for your family in case something happens to you. Yes, it might be a morbid subject to think or talk about, but it’s unfortunately a fact of life that we are not immortal. A lot of people put this off until tomorrow, but unfortunately, no one knows what tomorrow might bring. Protecting your family could be the best thing you do this year.

Will execution can be a bit like doing your taxes – complicated and perplexing. It helps to have an El Paso estate-planning attorney to make sure you remember all of the things that need to be included and taken care of. There are a lot of little things that most people never think of.

Your pet, for example, is one. If you have pets, you want to ensure that you list a guardian for them. You may even want to plan for their medical needs in advance.

Another thing to know is that you need to ensure that beneficiaries are updated and correct on your life insurance policies and pension funds. Even if you have a will, the beneficiary listed on these items will override the will. So, it is very important to ensure these are kept up-to-date if you divorce and remarry.

Who will get your car or your house if something happens to you? You may want to do a “Transfer on Death.” This means that when you complete a T.O.D. document, the property is immediately transferred over to the beneficiary you have named. This too, will overwrite a person named in your will.

There are multiple things to consider, which is why it is helpful to have the assistance of an attorney who is thorough. He or she can help you think of things that need to be included or updated in your will. Finally, you need to ensure that your documents are where they can be found, or designate your attorney or another trusted individual to handle matters if something happens to you. When you are finished, you will have peace of mind!

Source:, “Are you ready for death? Resolve to get your affairs in order” Tim Engle, Jan. 19, 2014