Question: My mother died with a Will. What should I do with the Will? Does it have to be probated and if so, how long can I wait?
Answer: Anyone in possession of a Will for a person who has died has the lawful duty to surrender the Will to the County Clerk of the county in which the Decedent resided at the date of death. A Will does not have to be probated, however, in many instances this is the only way to effectuate the Decedent’s intent as set out in the Will. Ordinarily, a Will must be filed for probate within four years of the date of Decedent’s death, however, a Will may be filed after four years if the applicant establishes that the late filing was not due to any negligence or fault on behalf of the applicant.
Question: Is the probate of a Will expensive?
Answer: The probate of a Will is usually not expensive, however, probates of Wills vary considerably from one estate to another as do their probate costs. The filing fee payable to the county clerk is now $300.
Question: Should my mother quit claim deed her house to my sister and I while she is living and avoid the costs of probate?
Answer: The conveyance of the homestead during the lifetime of the parent to the children could raise issues of a gift tax which could be costly to the children.
A quitclaim deed placing title in the children may subject the property to the creditors of the children and be seized for their liabilities and force the parent out of the home during the time she is still living there.
If the parent gifts the house to her children, the tax basis is $ -0- as the children paid nothing for the house and when they later turn to sell the house, they may find that 100% of the sales price is treated as income for the children, either a long term capital gain or ordinary income taxed just as though it was earned through personal services.
Question: Can a “lost will” be probated?
Answer: If the will was last noticed in the possession of the Decedent, it may be presumed destroyed, however, if the will was last noticed not in the possession of the Decedent, it may be presumed lost and subject to probate. Presumptions only enable the presenting party with a satisfaction of what is called the burden of proof, however, presumptions may be overcome with credible and admissible evidence to the contrary.
Question: Does a Will have to be signed before a Notary Public?
Answer: The signature of a Notary Public to a Will may serve only as a witness but cannot serve both as a witness and as the official signature on a certificate attached to the Will. A Will needs no notary public to make it effective, only two signatures of qualified witnesses if typed or printed and none if entirely in the handwriting of the Decedent. An attachment to a Will called a “Self Proving Affidavit” is a statement made under oath and signed by the Decedent and two witnesses which proves part of the Will in advance and raises many presumptions in favor of the Will, and it is usually this affidavit and not the Will that is signed by the Notary Public.
Question: Can I just hand write my Will and avoid the expense of having an attorney prepare my Will?
Answer: There is no substitute for having a qualified experienced attorney prepare your Will, however, until you retain these services you might consider writing out your own will in your own handwriting, but please be informed that hand written wills, even if they express a testamentary intent and are signed by the Decedent, are much more difficult to establish in probate, may require hand writing experts, may require considerably more time and efforts to probate, and may cause the family to have to incur the expense for a performance bond for the personal representative. Handwritten Wills often have other problems not associated with those prepared by a qualified experienced attorney, which may cause delays, problems, increased expenses, and in some cases, the failure of the Will entirely.
Question: My work is the only income in my family. Why should my spouse need a Will?
Answer: If your spouse dies before you without a Will, your spouse is said to have died intestate, and the spouse’s property passes to heirs set out in the statutory laws of the State of Texas which are not always to the surviving spouse. In some cases, the heirs at law are children of a former marriage, which may divide your community property estate into two parts, one for the surviving spouse and one for the children of a former marriage.
Question: Will a Will provide for all my testamentary needs?
Answer: A Will may provide for all your testamentary needs, but many other valuable properties are handled outside a Will and are not always part of the Decedent’s estate at all. Examples of matters outside the probate of a Will are joint accounts with rights of survivorship, joint accounts with pay on death provisions, and life insurance proceeds. These beneficiaries take pursuant to the document and not under the Will and as such ordinarily have no obligation to use these funds to pay for the probate of a Will and have no legal duty to share these funds with other family members.
Question: Should I place how I want my remains to be treated in my Will?
Answer: While such provisions carry the weight of an advance directive in some cases, they may not arise until after the Will has been probated which may be long after the Decedent’s funeral. It is best to take care of cemetery and funeral matters with an advance directive.
Question: If I have a statutory durable power of attorney or a medical power of attorney from my parent, will this be enough to handle all matters for my parent after they become very ill?
Answer: A statutory durable power of attorney will help you assist your parent in most all financial matters. A medical power of attorney will help you to make treatment decisions for your parent that your parent would have made had they been able to voice their intent. If your parent needs help otherwise with where they reside or their treatment, as in the case of long term care, you may find that neither of these powers of attorney will authorize you to make critical care decisions which would then require a legal proceeding to establish you as the guardian of their person. Without an advance directive to declare who would be their guardian, this could become a time consuming and costly experience with testifying medical experts required.
Question: If I sign a Living Will, will I then kept alive against my intentions?
Answer: Avoiding treatment against the patient’s will may be the primary purpose of this advance directive. The advance directive for this is called Directive to Physicians or Surrogates and has in its provisions a sentence which authorizes the physician to disconnect all life supports if the physician is of the opinion that death is imminent in a matter of hours even with the availability of life sustaining medical equipment. There is no equivalent law if you have not signed one of these advance directives.
Question: I have been told that when I die, my estate may owe large estate taxes. Is this true?
Answer: Each estate has its own individual issues that would or would not qualify it for credits and/or deductions. As to the size of the estate and the amount of Federal Estate Taxes that may be due by your estate, the federal government laws on this appear to be changing over the last decade and you may begin your search by going on-line to see what these figures are for the current year and the upcoming years. Federal Estate Taxes are often a part of the political scene and change from term to term and sometimes from one congress to the next.
Question: Should I consider placing all of my properties in a trust rather than having a Last Will and Testament prepared and signed so that I will thereby save the money of a probate after I pass away?
Answer: While a trust is the type of document that meets the needs of the client in many instances, it is not always the best way to proceed and is not always the least expensive. Many estates can be probate with a minimum cost and in a relatively short time period. Rather than dictating to your attorney what you expect, ask your attorney for advice in this area. Trusts may restrict your ability to manage your own property and may require a probate of what is called a “pour over Will” and a minimum probate in any case. Trusts may be required where you wish to control the use of property over more than one generation. Trusts do not always save money.