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Law Firm, 
pllc
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www.TheFrankLawFirm.com

 

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ANSWERS TO COMMONLY ASKED QUESTIONS
REGARDING WILLS AND PROBATE

WHAT IS A WILL?

A will is a legal document that allows you to direct the distribution of your property upon death in an economical and efficient manner. Bequests under a Will may pass either directly or in trust to a beneficiary.

WHAT IS A TRUST?

A Trust is a legal entity in which legal title and management of property are vested in a Trustee who administers the property for a designated beneficiary.

WHY SHOULD YOU HAVE A WILL OR A TRUST?

If you die without a Will, the rules of intestate distribution dictate how your property will be passed. In Texas, your estate will be encumbered with significant additional legal expenses and delays in probate court if you do not have a Will.

There are many tax and non-tax advantages for creating a Trust in your will (Testamentary Trust). For example, a person with a substantial estate may wish to leave a large portion of the estate in trust for his or her beneficiaries to prevent the taxation of such property upon death of the beneficiary. Additionally, if a minor child is a beneficiary of the estate, it may be advisable to create a Trust for the benefit of the child at 18 years of age or any other appropriate age.

WHAT IS PROBATE?

Probate is the process of submitting your Will to the Probate Court, administering your estate, and distributing your property.

WHAT IS AN INDEPENDENT EXECUTOR?

An Independent Executor is free to administer your estate with a minimum of court supervision and legal expense. It is a streamlined and simplified probate proceeding. Essentially, an Independent Executor has the duty to settle your estate and distribute your property as designated in your Will. If the maker of the Will (testator) is married, the testator often designates his or her spouse as an Independent Executor. However, if the estate is expected to be substantial, or burdensome for the spouse to manage (for example, when a business or a farm will be an asset of the estate), the testator may wish to designate someone other than the spouse as Coindependent Executor to assist, or as an Independent Executor, instead of the spouse.

If you decide to provide for a Trust in your Will, you will designate a Trustee who will manage the Trust for your beneficiaries. If you are married, you may wish to designate your spouse as the Sole Trustee or a Cotrustee. You will also designate a Trustee who will manage any Trusts created for the benefit of your children.

An Independent Executor or Trustee (who is not a parent of your children) is not authorized to personally take custody of your minor children; you may, therefore, wish to consider naming a Guardian of your minor children who will be in a position to assume responsibility for the care of your children upon the death of the last surviving parent of the child.

A Guardian may be designated either in your Will or in a separate written instrument. Sometimes a separate instrument is advisable if you have difficulty deciding upon a Guardian.

You should also designate one or more alternative Independent Executors, Trustees and Guardians who will act in the event your first choice predeceases you or is otherwise unable or unwilling to serve.

WHAT IS ESTATE PLANNING?

Estate Planning is the process of ascertaining the appropriate legal vehicle, i.e., Will or Trust for your estate, and what pertinent provisions to insert in such vehicle that will provide the most tax and other benefits to enable you to efficiently manage and pass your property to whom you wish upon your death. In the course of assembling the various requested information, you should decide how you desire your estate to be distributed. Naturally, there are many factors that should be considered when arriving at a comprehensive estate plan, such as Federal Estate and Income Tax consequences; these will differ with each situation.

EXPLANATION OF TERMS:

Some of the terms which are particularly relevant to Estate Planning are listed below:

1.
WILL: A legal instrument, executed in accordance with state laws pertaining to testamentary transfers which pass title of your property pursuant to the terms of the Will to your beneficiaries upon your death.
2.
TESTATOR: A male person who executes a Will.
3.
TESTATRIX: A female person who executes a Will.
4.
LAWS OF DESCENT AND DISTRIBUTION: Statutory provisions which set out the manner in which an estate is distributed when a person dies without leaving a Will.
5.
EXECUTOR: The person named in your Will to administer your estate. The Executor is responsible for paying all of the debts, collecting the debts owed by and owed to the deceased, paying any estate taxes which are owed, representing the estate before the probate court, and seeing that all property is distributed to the proper beneficiary as dictated by the Will, including the transfer of title so that ownership will finally vest.  The process which serves to give your Executor the greatest freedom is the insertion in your Will providing that he or she will be an "Independent Executor without bond."
6.
ADMINISTRATOR: A party chosen by the court to administer the estate whenever a person dies without a valid Will, or when for some reason the Executor appointed cannot serve. The Administrator customarily receives a fee for his services, is bonded, and must make application to the court and receive the court's ratification at each step in the process of disbursal of your assets. Naturally, all fees are deducted from the estate.
7.
GUARDIAN: A person appointed to stand in your stead with regard to the raising of your children to their legal majority (presently 18 years) in the event of the death of both spouses. Although a designation of a Guardian in a Will is largely advisory only, the court will examine such party before all others, and if found suitable, is most likely to appoint such person.
8.
TRUSTEE: The Trustee is the person who will manage the trust fund, customarily for the benefit of your children. The Trustee will take your place regarding expenditures for your children. He or she should, therefore, be a person whose financial theories most closely approximate your own.

OTHER CONSIDERATIONS:

In the event that you move to a different state or country, have your Will reviewed by an attorney licensed in that jurisdiction to determine if the Will is valid in such state or country and whether or not probate of the Will may be complicated by the use of an out-of-state Will.

The Will should be reviewed periodically so that it may be kept current. You should revise your Will whenever your personal circumstances change significantly, such as with a birth, death, remarriage or divorce, or if your assets change substantially.

Since the Will is a legal document, it cannot be changed unless formal procedures are complied with. Accordingly, please do not attempt to alter, write on your Will or change your Will yourself. You should call your attorney.


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