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FAQ's

  • What does funding a trust mean?
    A trust is an entity that holds assets. Think of it like a bucket that holds assets like tangible personal property, real estate, bank accounts, etc. The only assets that we will put in the trust are tangible personal property (furniture, furnishings, jewelry, collectibles, etc.) and real estate. It will be up to you to make sure that other assets like bank accounts and retirement accounts are either owned by the trust, payable to the trust, or have other beneficiary designations if you wish your beneficiaries to avoid probate. This process of making sure the assets are covered by the trust is called “funding the trust.” We will provide a Funding Memorandum that lists many different types of assets and instructions on how to deal with those in regards to the trust.
  • Is Estate Planning for me?
    If you own any assets, are interested in setting up planned distributions for your loved ones, want to leave a legacy for a beloved charity, have heirs who may need responsible financial assistance after you are gone, want to avoid probate, then yes.
  • How does Estate Planning work?
    - Prepare the legal documents which facilitate distributing your assets after you (& or your spouse or partner) are gone - Prepare other legal documents making choices for who will have authority in both financial and medical decisions in the event of your incapacity
  • Why do I need a will?
    A will declares your intentions regarding the distribution of your property after your death. Another type of will (pour-over) is a will prepared when you have a revocable trust.
  • Why would I need a trust?
    Some of the reasons are: owning cash, bank accounts, business interests, personal property, real estate, etc. Do you want to have a planned distribution of assets to your beneficiaries? Do you want to make a plan for the time-saving benefits of choosing now who you want to manage your assets? Do you want the privacy that a trust provides? Do you want to avoid probate? Do you have beloved pets you want to provide for? These are just a few of the benefits. Then, yes a trust might be for you.
  • What is the difference between a revocable and irrevocable trust?
    A revocable trust is a trust that can be changed or even revoked by the creators of the trust as long as one of them survives. An irrevocable trust is a trust that cannot be changed.
  • What other documents complement a comprehensive estate plan?
    Pour-Over Will – This is a type of will that is prepared which transfers your assets to your trust. This document serves as a back-up document when you have a revocable trust in the circumstance that an asset is left out of the trust after one has passed. Medical Power of Attorney – This document allows you to designate a person(s) to make health care decisions for you in the event that you are not able. Directive To Physicians (Living Will) - This document states your wishes in regard to life support and other extraordinary medical measures in the event of a terminal or irreversible condition and explains your desires regarding life support systems and treatments. Durable Power of Attorney (Financial Power Of Attorney) – This document allows you to designate a person(s) to deal with banks, property, etc. in the event that you have become disabled or incapacitated. HIPAA Release and Authorization – This document allows you to specify the individuals who have access to your health information so they can assist in decisions regarding your care. HIPAA (Health Insurance Portability and Accountability Act of 1996) took effect in 2003. This act contains medical privacy rules that restrict disclosure of certain health information by health care providers and plans. Declaration of Guardian In The Event of Later Incapacity – In the event that your durable power of attorney or medical power of attorney is not effective, and a guardianship is necessary to protect your interests, this document indicates who you choose to be appointed as your guardian (as well as individuals who should not be appointed).
  • What should I do when a loved one dies?
    The death of a loved one can be a challenging and emotional experience. While it is important to grieve, it is also important to ensure that a loved one’s affairs are in order. A doctor or another medical professional should legally pronounce the decedent dead soon after death. If the death occurred at home or under hospice care, a hospice nurse may pronounce the death and make arrangements to transport the body to a hospital. Medical professionals may also be engaged by calling 911 or transporting the decedent to an emergency room for a legal pronouncement of death. If the decedent did not have a do-not-resuscitate document, medical professionals may attempt life-saving measures before pronouncing the decedent dead. After the decedent has been legally pronounced dead, the decedent’s primary care physician and the county coroner should be contacted to begin next steps. These may include organ or body donation and funeral preparation. An executor or another responsible person should then arrange for the care of the decedent’s minor children and pets, if any, and begin the probate process by finding and organizing estate documents.
  • What is the probate process?
    Probate is the process by which a decedent’s estate is settled and its assets are distributed. The probate process officially begins when a probate case is opened in probate court. Thereafter, the court will appoint an executor, who will assume the responsibility of managing the estate’s assets and shepherding the estate through probate court. During the probate process, the executor will pay the estate’s debts and taxes, resolve any litigation brought by beneficiaries, heirs, or creditors, and transfer estate assets to their new owners.
  • Do all estates need to be probated?
    No. If all estate property is transferable outside probate, opening a probate case is unnecessary.
  • Must a will be filed with the court if the estate will not be probated?
    Yes. The original Will must be filed with the court within 3 days of the application being filed.
  • Where is a probate petition filed?
    A probate petition is usually filed in the county where the decedent lived at the time of death. If the decedent had a will, the will may indicate where the decedent was living when it was drafted, although a decedent may have subsequently moved. If it is unclear where the decedent lived at the time of death, a petitioner may consider evidence such as where the decedent owned property, where they kept bank accounts, where they were registered to vote, where they held a driver’s license, or the address on their last tax return. If a decedent owned property in more than one state, ancillary probate may be necessary.
  • What if an executor does not start probate?
    If an executor does not start the probate process in a reasonable amount of time, another interested party, such as a close relative of the decedent, may be entitled to begin probate proceedings. What constitutes a “reasonable” amount of time may depend on state law. The longer that an estate goes without being probated, the more likely it is that the estate will experience an avoidable loss in value. An interested party, rather than just an executor, may petition for probate administration. An interested party should consult with a probate attorney to determine whether any state laws prevent them from initiating probate themselves.
  • Am I required to serve as an executor?
    No. An individual named as an executor in a will or considered for the role by a probate court may decline the job. However, they should consider who may be eligible to serve instead and whether the estate will be in good hands with that individual. If an executor wishes to resign after probate proceedings have begun, they must ask the court’s permission.
  • What if the decedent died without a will?
    If the decedent died without a will, their assets will be distributed according to the state’s rules of intestate succession. Rules of intestate succession vary, but generally a decedent’s surviving spouse and children will inherit their property in proportions dictated by state law. If the decedent did not have a spouse or child, usually the decedent’s parents and siblings will inherit, followed by other relatives. If the decedent did not have any living, identifiable heirs, the state may eventually take ownership of the property.
  • What is an executor (probate) bond?
    An executor bond, which is a type of probate bond, is essentially insurance on the estate to protect it from an executor who steals or squanders funds. The size of the bond is generally related to the size of the estate. Bond (surety) or insurance companies supply bonds for a premium that may be paid from estate funds. If an executor breaches their duties, beneficiaries may make a claim against the bond and seek compensation. The bond company may then seek reimbursement from the executor. Sometimes a will states whether an executor must post bond, but often the probate court decides. In most cases, beneficiaries may all agree in writing that a bond is not necessary, although beneficiaries under age 18 cannot legally waive a bond requirement. It is more likely that a court will require a bond if the executor lives out of state or if the person serving as the executor is not the person nominated in the will.
  • Is an executor entitled to compensation?
    Yes. An executor is entitled to charge the estate reasonable fees for their work. Sometimes the will or state law will offer guidance regarding the kind of fee that is “reasonable,” but often it is up to the executor to decide. If interested parties, such as an estate’s beneficiaries, believe that the executor’s fees are unreasonable, they may object to the fees in probate court.
  • Are executor fees taxable?
    Yes. Executor fees are taxable as income to the executor. Executors who are also beneficiaries often waive executor fees to avoid this tax.
  • Do beneficiaries pay tax on inherited property?
    Beneficiaries pay tax on some inherited property. For example, money from 401(k)s, 403(b)s, or IRAs is taxable if that money was tax deductible when it was contributed. Interest on life insurance proceeds may be taxed, as well as tax-deferred savings bonds. A beneficiary must pay income tax on income that would have otherwise gone to the decedent. The federal government does not collect inheritance tax, but some states do. A beneficiary may also owe capital gains tax if they sell valuable inherited property. If you have questions as to the assets inherited will be taxable, speak with a tax professional for further guidance.
  • What is an insolvent estate and how is one administered?
    An insolvent estate is an estate in which debts exceed assets. In this situation, most executors will benefit from hiring a lawyer who is experienced in insolvent estates. State law may establish priority for creditor claims, administration and funeral expenses, medical expenses, taxes, and other debts. State law may also prioritize awards due to surviving spouses and children over certain debts. Some assets, such as property protected by a homestead allowance or family allowance, or property held in joint tenancy, may be protected from an estate’s debts.
  • Is an executor or spouse liable for an estate’s debts?
    An executor generally will not be liable for an estate’s debts unless they incurred the debt with the decedent, or their careless handling of the estate’s assets caused the estate’s inability to pay its debts. Similarly, spouses generally will be personally liable only for debts that they acquired with the decedent. However, some shared assets may be accessible to an estate’s creditors, depending on state law.
  • May a beneficiary still inherit if they have already collected their gift?
    A lifetime gift, which is a gift made during a testator’s life rather than after their death, will typically not interfere with a beneficiary’s gift under a will. However, if there is clear evidence that a testator intended the lifetime gift to replace the will provision, such as a written statement to that effect, a court may rule that the beneficiary cannot “double-dip.”
  • I do not like the executor of the estate. What can I do?
    The best way to resolve a conflict with an executor is to communicate with them directly. For example, if a beneficiary disagrees with the executor’s interpretation of the will, the executor and the beneficiary may be able to negotiate or mediate a fair interpretation outside court. However, if a party still disagrees with the executor, or the executor’s actions are harming the estate, they may be able to initiate litigation against the executor and have the executor replaced.
  • I do not like the probate attorney working on the estate. What can I do?
    Often, an executor will hire a probate attorney to perform work on the estate and help the executor handle the probate process. A probate attorney hired by the executor represents the executor, rather than the beneficiaries or any other interested party. The executor who hired the probate attorney is free to terminate the attorney’s contract. However, no other party may terminate the executor’s probate attorney. If another party does not like the probate attorney hired by the executor, that party may hire their own attorney, who can help resolve the issue or initiate probate litigation.
  • What happens to a decedent’s frequent flyer points?
    If a decedent has remaining frequent flyer points after their death, the rewarding airline or credit card company may allow the transfer of these benefits to another individual. An executor should contact the company to determine whether the transfer is possible. If so, the points may become part of the decedent’s estate.
  • What happens to a decedent’s firearms?
    Firearms, including their possession, transfer, and ownership, are governed by both state and federal laws. If an executor cannot confirm that a firearm subject to the National Firearms Act (NFA) was properly registered, they should contact the NFA branch of the Bureau of Alcohol, Tobacco and Firearms (ATF). The executor should follow ATF rules regarding the transfer or abandonment of firearms. Firearms not subject to the NFA may still need to be registered under state or local law. Transferring a firearm may be handled by a Federal Firearm Licensed (FFL) dealer. States may have their own rules regulating and prohibiting certain types of firearms. A violation of state or federal firearm law may result in steep penalties.
  • How long do we have to probate a will?
    Typically, an application to probate a will must be filed within four (4) years of the date of death of the decedent.
  • What is the difference between real property and personal property?
    Real property is land, including mineral interests. Personal property is anything else.
  • What is a letter of testamentary?
    A letter of testamentary (also known as letters testamentary) is a legal document issued by a court having probate jurisdiction after a will has been presented for probate. The letters name an individual as executor and provide the authority to administer the estate. For example, banks and other financial institutions usually require letters of testamentary and a death certificate before funds can be disbursed from a deceased person’s accounts. To receive a letter of testamentary an application must be filed by an attorney. Letters of testamentary become part of a legal public record.
  • Can I probate a matter without an attorney (pro se)?
    Only a licensed attorney may represent a third person or entity in a judicial proceeding in the State of Texas. In most probate or guardianship cases, an individual applicant is not truly representing only himself, rather he or she is attempting to represent another person or persons such as beneficiaries, heirs, or the estate itself. Unless the applicant is a licensed attorney, filing an application to probate a will without an attorney constitutes the unauthorized practice of law and will not be allowed by the Court. In certain limited circumstances a person may act without an attorney.
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