The Last Will and Testament
It is important to have an attorney prepare a legal Will that will properly distribute real and personal property upon the death of the person making the Will. The Will can make the Probate process much simpler on family and can help bring peace of mind that your final wishes will be honored when the Will is in Probate. Requirements for making a Will include being at least 18 years of age, serving in the armed forces or being married. The person making the Will must also be of sound mind and have the intent to devise the property as stated in the Will.
The Law Office of Roy Neal Linnartz, PLLC can prepare your Last Will and Testament but we can help you with much more. Most people come to us with a desire to get a Will prepared but we prefer to meet with each client to discuss their wishes and desires to be incorporated into their Will. We prefer to prepare a Wills Package that not only includes the Last Will and Testament but also Durable Powers of Attorney, Medical Powers of Attorney, Medical Directives (also referred to as Do Not Resuscitate or DNR papers) Living Will and HIPPA releases. We can prepare a Trust or Guardianship as part of the Wills process or separately.
Wills other Estate Planning documents are prepared in a two-step process. We meet with the testator or testators (person or persons making the Will) to discuss their objectives and wishes. If the person making the Will has children, one of the main concerns is making sure that there is a solid legal document to appoint a guardian for the children because without a Will, the State of Texas will make the decisions on where children will be placed. Additionally, without a Will, the State of Texas will make the decisions on who will receive the property in the Estate of the deceased who died without a Will. Once the Will, Durable Power of Attorney, Medical Power of Attorney, Medical Directives, Living Will, HIPPA Release, Trust documents, Guardianship documents or other Estate Planning documents are prepared we meet with the client again to review the Will, Durable Power of Attorney, Medical Power of Attorney, Medical Directives, Living Will, HIPPA Release, Trust documents, Guardianship documents or other Estate Planning documents to make sure that we have accurately captured the client’s wishes and information. It is at this second meeting that the Will, Durable Power of Attorney, Medical Power of Attorney, Medical Directives, Living Will, HIPPA Release, Trust documents, Guardianship documents or other Estate Planning documents are signed and notarized.
While meeting with the client we also discuss non-Probate assets such as insurance policies, KEOGHs, 401(k) plans, pensions, profit sharing plans, assets in Trusts, money in transfer on death (TOD) or payable on death (POD) bank accounts, or property owned in joint tenancy with rights of survivorship. Additionally, we discuss Business Planning if the client is a business owner.
While we prefer to meet with clients in our office, we will meet with clients that cannot make it to our office where it is convenient for them. We can come to homebound or nursing home clients in Comal County, Guadalupe County, Hays County, Bexar County Kendal County, New Braunfels, San Marcos, Seguin, Bulverde, Boerne, Schertz, Cibolo, San Antonio or most areas Central Texas.
Since it is so important to have legal Will in Texas, you should have an experienced Texas attorney advise you and assist in drafting your legal documents. Call the Law Office of Roy Neal Linnartz, PLLC to schedule an appointment, 830.625.9300.
There are different reasons for creating a Trust:
• To avoid Probate
• Estate planning
• Protection and control in the transfer of wealth
• Reduce estate tax
• To care for a minor
• To care for someone with a disability
• For charitable causes
• To care for a pet
• To purchase a firearm or gun subject to Federal regulation
Trusts can be incorporated into a Will or they can be stand-alone documents. There are many different reasons to create a trust and each one should be drafted and structured to accomplish the goal of the person creating the trust.
There are many scams that will insist everybody needs a living trust. While a living trust may be appropriate for some people, it is not a necessity for everyone. The cost to prepare a living trust is often about the same as the cost to probate a will. There are details to be maintained with a trust that can be difficult for the average person to deal with. With a properly drafted and executed will, probate in Texas can be a quick and simple process. If you think a trust might benefit you, discuss it with an attorney and make sure you have an attorney prepare it for you and explain how to operate it to make sure it accomplishes what you intend it to.
It is important that your trust do what you want it to do so consult with an attorney do discuss how your trust is going to work for you. Call the Law Office of Roy Neal Linnartz, PLLC to schedule an appointment, 830.625.9300.
The Probate Process
In Texas, Probate is the process by which the Court recognizes the death of a person and authorizes an administration of their estate. Their estate is comprised of all the assets that person owned at the time of their death. Most Texas Probate Courts will require the person submitting an application to Probate an estate be represented by an attorney to advise them on their duties throughout the process.
Texas Probate cases generally fall into one of four categories:
• Testate Administration (died with a Will)
• Intestate Administration (died without a Will)
• Muniment of Title
• Small Estate Administration (estate not greater than $50,000)
Testate Administration – Probate proceedings with a Will
When a person dies with a Will, the Probate process is simplified, the executor is usually allowed to independently administer the Will. Independent administration allows the executor to carry out their duties as executor without strict oversight by the Court. Independent administration also typically allows the executor to perform their duties without posting a bond.
The application for Probate should be submitted for administration in the county where the decedent resided. A notice will be posted at the courthouse to allow for anybody that wants to contest the Will. After approximately two weeks, the Probate Judge will hold a hearing to acknowledge the decedent’s death, recognize the jurisdiction of the Probate Court over the case, verify that there was or was not a Will and appoint an executor (or administrator) to distribute the testator’s estate. The executor will inventory all the assets and notify the beneficiaries and creditors. Once creditors have been given the opportunity to file claims against the estate, the executor will pay any outstanding debts. If there are any disputes, a Probate Judge will hold a hearing to resolve the disputes and then the remaining assets are distributed to the beneficiaries.
Intestate Administration – Probate proceedings without a Will
The process for intestate administration is similar to that of testate administration. However, while testate administration usually allows for independent administration, intestate administration usually requires dependent administration. This means that the administrator must get the Probate Court’s approval to sell assets or pay debts. Also, rather than distributing the estate to beneficiaries named in a Will, the estate is distributed to heirs as directed by state statute. Administrators of typically must post a bond to serve as an administrator during intestate administration as well. The administrator must file accounting paperwork with the Probate Court detailing income, expenses, debt/creditor payments, and assets.
Muniment of Title
Muniment of Title is a vehicle for streamlining the Probate process and is the only method to Probate a Will if it has been more than four years since the death of the testator. Probating a Will by muniment of title does not require the appointment of an executor or administrator, rather the Probate Court recognizes ownership of property. Once the Probate Court determines the Will to be the testator’s, the Court will signs an order stating such or allow for a certified copy of the Will recognizing ownership in property. The order or certified copy can then be used to transfer property (usually real property).
Small Estate Administration (estate not greater than $50,000)
Small estate administration allows for expedited transfer of property to the heirs without all the formalities typical to the Probate process. To be eligible for Probate through small estate administration the estate’s value must not exceed $50,000 (excluding homestead and exempt property), there can be no Will, and there is no real property other than a homestead.
• Insurance policies
• 401(k) plans
• Profit sharing plans
• Assets in Trusts
• Money in transfer on death (TOD) or payable on death (POD) bank accounts
• Property owned in joint tenancy with rights of survivorship
Most Texas Probate Courts will require you to have an attorney representing you during the Probate process. Call the Law Office of Roy Neal Linnartz, PLLC to schedule an appointment, 830.625.9300.