Questions & Answers

• Value
• Forms
• Specific Bequests to Specific People or Entities
• Holographic Wills
• Probate
• Executors
• Guardians
• Trustees
• Why do I need to name a Trustee?
• Why do I need to have a Trust at all?
• What is a Special Needs or Supplemental Needs
• Agents
• Estates
• Community Property and Separate Property

Value:

1. Texas Attorney
   This on-line application uses forms designed by a Texas estate planning attorney.
2. Texas Residents Only
   Your secure, accurate, comprehensive, professional and detailed Will is designed specifically for Texas residents.
3. Guarantee
   Your Will comes with a guarantee it will be accepted for filing for probate in any county in the State of Texas.
4. Lower Cost
   Our cost is significantly less than you would pay an attorney for the same type of document.
5. Preview
   You can preview the first 3 pages before purchasing your Will.
6. Save Will
   Once registered you can save your form to re-print your Will.
7. Detailed Instructions
   Your Will comes with complete instructions on what to do next, ready to be signed.
8. Email Follow-up
   After you purchase your Will, you will be sent periodic legal updates via email that affect your entire estate plan to insure your estate plan is kept up to date.
9. Coupons
   Spouses and domestic partners get a 50% discount on their Last Will and Testament (we'll provide you a coupon code once you purchase your first Will). If you already have a coupon code you will enter it at checkout and will see the final price for your document before you make your purchase.

Forms:

1. What is a Last Will and Testament, i.e. a Will?
   The simplest description is a Will is a writing that states how you want your estate to be distributed upon your death, and, for those of you with children it is where you identify who you want to be the Guardian for your children. The most common form for a Will is to have a typewritten documentsigned by you, a Notary Public and two witnesses who are not interested in your estate. A Will does not have to be prepared by an attorney.
2. What is a Trust?
   Trusts come in several forms. There are testamentary trusts, which are built into a Will and do not come into effect until someone dies and the Will is probated, and living trusts, which are a separate document that is either funded during your lifetime or through your will when you pass away. In addition, there are revocable and irrevocable trusts. The purpose of a trust is to hold, manage and distribute assets according to the terms of the trust with the management of the trust being done by a Trustee. The Trustee is obligated to hold, manage and distribute your assets according to your intentions set out in the language of the trust. They are typically used when leaving money to minors, but can be used to manage an estate for any individual regardless of age or marital status.
3. What is a Statutory Durable Power of Attorney?
   This document is based on a form created by the Texas legislature years ago. The reason the legislature created the document was in part to help banks and other financial institutions have one general format that was understandable, instead of multiple different forms created by a variety of attorneys. Basically, it is a general power of attorney granting your agent the right to manage your financial affairs in the event you are incapacitated. So, if you can't manage your own finances because of a disability or other medical reasons, your agent would do it for you and protect your estate. The power of attorney only works while you are alive. When you pass away, your Will or Trust will state who is going to handle management of your estate.
4. What is a Medical Power of Attorney?
   A Medical Power of Attorney, otherwise known as a Health Care Proxy, is a document stating who you want to make medical decisions for you in the event you cannot do so yourself. The document provides guidance to family members, doctors and physicians, and insures the person you want to make your medical decisions is clearly identified.
5. What is HIPAA Release and Authorization?
   A HIPAA Release and Authorization is typically used along with a Medical Power of Attorney. It authorizes medical personnel to release your medical information to the person you name in the form. Everyone should have one in place, particularly if you have a Medical Power of Attorney that does not contain HIPAA language. Young adults over the age of 18 should seriously consider signing one as well.
6. What is a Directive to Physicians and Family or Surrogates, i.e. a Living Will?
   Most of us know this document as a Living Will, but that name isn't accurate. It is not a Will. It is a statement of your intentions as to what you want done in the event you are terminally ill or have an irreversible condition. It does not name any agents, but it does say that you do or do not want life sustaining treatment in the event you are terminally ill and/or have an irreversible condition. The document is necessary in any estate plan, but it is particularly important when you have family members that may not honor your wishes without something in writing stating your intent.

Ultimate Beneficiaries and Holographic Wills:

When you want to make a specific bequest to a specific person or entity (like "I give my watch to my brother, Bill Smith") you can use a handwritten Memorandum to list the assets and the individuals (or entities). Texas recognizes "holographic Wills", which are handwritten Wills signed by the person making the holographic Will. This law allows Texas residents to change the memo as often as they like without having to redo (and repurchase) their Last Will and Testaments. The key is it MUST be HANDWRITTEN by the Testator and SIGNED by the Testator. It is NOT recommended to use a holographic Will as your Last Will and Testament itself for a variety of reasons, including: (1) it may not correctly dispose of all of your estate; (2) it may not be recognized as a valid Will by a court; (3) it will likely not take advantage of potentially easier and less expensive probate methods; and (4) it typically will cost more to probate a holographic will than a well drafted and formalized Last Will and Testament.

Why do I need to name a Trustee?:

Whether you have children or not, everyone needs to name a Trustee in their Will! You never know when your assets might be inherited by a minor or other person with a legal disability. If a minor or legally disabled person inherits without a trust and Trustee in place the Judge will create a trust for the beneficiary and name a Trustee of his or her choosing, usually one that is paid a fee. This can easily be avoided by naming a Trustee in your Will today before it becomes a problem.

Why do I need to have a Trust at all?:

Virtually everyone needs a Trust in place to receive assets for a person that may not be capable of managing their own financial affairs, either because they are a minor, have a legal disability (which includes being under 18 years old) or simply because they have shown a pattern of mismanagement of their money. Let's take a extreme example - what if your estate is being inherited by your 40 year old daughter who is a financial wizard? Believe it or not, she also benefits from a trust, especially if she is married. An inheritance in Texas is separate property but if it is extensively commingled with community property it to can become community property! If your daughter then gets divorced, her inheritance can be divided and her husband could receive a large portion of it. But, if she had left the inheritance in her trust you created it would be more readily identified as her separate property (so long as she doesn't put community assets into the same trust) and separate property cannot be ordered transferred to the other spouse in a divorce. If your 40 year old, financially sound daughter can use a Trust! PLEASE NOTE - if you have a child or potential heir with special needs, such as Downs or Autism, you MUST consult with an attorney for your planning and sound legal advice. The Secure Wills documents do not address these concerns adequately.

What is a Special Needs or Supplemental Needs:

A Special Needs Trust or Supplemental Needs Trust (known as "SNTs") are used to protect assets owned by persons with special needs, such as Downs or Autism. It is a specially designed trust that enables the beneficiary to still receive government assistance to care for them. There are also pooled trusts for this purpose in the State of Texas, like the Arc of Texas Trust, that are public and managed by the ARC. If your child is a special needs child you MUST consult with an attorney experienced with this type of trust planning. The Secure Wills documents do not address these concerns adequately.

Probate:

1. What is probate?
   The primary purpose of probate is to administer your Will through a probate court or county court and distribute and retitle the assets you are leaving to your beneficiaries. An application is filed with the Court along with your Will and an original death certificate and a short court appearance is scheduled so the Executor can appear in front of the Court and swear an oath to uphold the intentions in your Will. The Court will also issue a court order, called "Letters Testamentary" or "Letters of Administration" to the Executor so he or she can administer the estate. An inventory is also required to be filed and approved by the judge, and recent Texas law requires notices be sent to all beneficiaries of the estate. Case law and local rules require the Executor or applicant hire an attorney to assist in the process.
2. How much does probate cost in the State of Texas?
   Probate in some states is very expensive and time consuming, but that is not the case in Texas for most probate matters. Of course, if there is litigation over some of the probate matters in can cause the process to be more time consuming and expensive, but that is unusual. Depending on the county in which the probate case is filed, the filing fee will usually range between $200-300, and attorney's fees can range from $150-400 per hour. There are exceptions, but these figures provide a pretty good guideline. In total, you should expect to spend between $1,500 and $3,000 to have your case handle competently and you will likely spend more to probate an estate when you die without a last will and testament.
3. What happens if I die without a Will in the State of Texas?
   The Will created by the Texas legislature will be your Will. The statutes provide for laws of "intestacy", which are laws that apply when a person dies without a Will and an estate needs to be administered. The distribution is relatively clear once you determine the nature of the property (community property or separate property), and whether the decedent died married or single, and with or without children. The actual way it is distributed is beyond the scope of these questions, but in most cases the outcome is not what you would have intended. It is much better to have a Will do what you want it to, rather than rely on the intestacy statutes.
4. Does my Executor need to hire an attorney to probate my Will in Texas?
   Under Texas law, only a licensed attorney may represent the interests of third-party individuals or entities, including guardianship wards and probate estates. Therefore, your Executor does need to hire an attorney to handle the probate of your estate in Texas with a very limited exception for a filing called a Muniment of Title application. Even then your Executor will likely be required to hire an attorney to handle the matter. Seriously reconsider buying any books that profess to help you handle probate by yourself.
5. How long does probate take in Texas?
   The typical probate in Texas takes less than a month or two to complete, but it will depend on the complexity of the case. If you have a business it will usually take longer to wind down and distribute the estate. If you have a large estate it may also take longer. And if the beneficiaries or creditors start hiring their own lawyers the expense and time will go up dramatically.
6. Are the ways to avoid probate?
   There are a variety of ways to either avoid probate or minimize it quite a bit. Even though you may not realize it you have already done some estate planning that avoids probate when you buy life insurance, start an I.R.A. or even open a bank account. For example, life insurance pays out to the person or persons you name as beneficiaries without going through probate, and if you own a bank account with someone as "Joint Tenants with Rights of Survivorship" that bank account will also pass outside of probate. Some people choose to use a Living Trust and title all of their assets into the Trust. When you die there is not probate because there are no assets to distribute through the probate process. You should seriously consider hiring an attorney to draft a Living Trust and insure it is fully funded if you want to try to avoid probate, and you should still have a Will in place in case any assets are left out of the trust accidentally.

Executors:

1. What does an Executor do for me?
   Basically, an Executor "executes" the terms of your Will through the probate process and takes care of transactions that are required to pay your lawful debts and distribute your remaining assets as you intended. An Executor, or Personal Representative, acts as a fiduciary for the estate, the beneficiaries of the estate and the creditors of the decedent. Their job is extremely important and requires a high degree of care, which is why the State of Texas requires Executors hire an attorney. The lawyer effectively does a large part of the work, so your Executor will typically only make one court appearance and will be relying on the lawyer for much of the work.
2. How do I choose an Executor?
   Most people choose a family member to act as their Executor, but it can be any person that is not otherwise disqualified under Texas law (felon, incapacitated, etc.). You should appoint someone who is responsible and can handle the time and energy required to probate your Will. They do not have to be an accountant, but they should have some idea of how to manage finances. They do not have to be a resident of the State of Texas and you can name two or more people to act as Co-Executors, although that isn't always the best idea.
3. Does my Executor have to live in Texas to act for me?
   No, your Executor does not have to be a Texas resident to act on your behalf and probate your will.
4. Can I appoint two or more Executors to act at the same time?
   Yes, although it is not recommended. If you do, make sure you name an odd number of Co-Executors (typically 3) and insure there is language in your Will that states a majority is all that is required to make a final decision, or, if you name 2 Co-Executors make sure there is language in your Will that says one of them has the right to make a final decision if they cannot agree, or appoint a third party to be the "tie-breaker" in the event they cannot decide between themselves.

Guardians:

1. What is the role of a Guardian?
   Choosing a Guardian is often the hardest choice to make, in Texas or elsewhere. Their role is to take on the responsibilities of a parent in the day-to-day upbringing of your child or children. They have a legal responsibility and duty to care for and protect your children.
2. How do I choose a Guardian?
   Pick a Guardian that will take care of your child or children in a way that you would. If possible, choose a Guardian that is financially secure and consider giving them a direct gift of part of your estate so they can have it to pay for unexpected additional expenses. You can appoint Co-Guardians but they have to be a married couple under state law. If you do, your Will should address how the guardianship will work if the Co-Guardians divorce or one of them dies. Does the surviving Co-Guardian stay on as Sole Guardian or do your children start living with another Guardian of your choosing?
3. Does a Guardian I appoint have to live where I live to be a Guardian?
   No, but the Guardian is not required to move here and live with your children. If you want this to happen you should talk with your Guardian about your preference for your children to stay here if possible.
4. Can I appoint two or more Guardians to act at the same time?
   Yes, you can, but they need to be legally married under the laws of the State of Texas or another state.

Trustees:

1. What is a Trustee?
   A Trustee is a person or entity (like a bank) that is in a fiduciary relationship with the beneficiary of the trust being administered. A Trustee has a high degree of responsibility and may even be sued for mismanagement of trust assets. In most estate planning situations a Trustee is a person named to manage the estate of children if their parents die, and the Trustee usually acts as a trustee many years after the children reach 18 years old.
2. What is the best way to choose a Trustee?
   This is a long term responsibility and will require some knowledge of finances and investing. The Trustee may be a family member and usually is, but you can choose a friend or a bank or trust company to act as Trustee. Remember, the banks and trust companies are going to charge the trust fees and may also receive fees based on investments into their own portfolios. However, there are some situations, typically with large estates, that may benefit from the expertise a corporate trustee or trust company can offer.
3. Does my Trustee have to live in Texas to manage my trust?
   No, the Trustee does not have to be a Texas resident to be a trustee of your Texas trust.
4. Can I name two or more Trustees to act at the same time?
   Yes, although it is not always recommended. If you do, make sure you name an odd number of Co-Trustees (typically 3) and insure there is language in your Trust that states a majority is all that is required to make a final decision, or, if you name 2 Co-Trustees make sure there is language in your Trust that says one of them has the right to make a final decision if they cannot agree, or appoint a third party to be the "tie-breaker" in the event they cannot decide between themselves. There are cases where an individual trustee may be named as Co-Trustee with a corporate trustee where the corporate trustee provides expertise but the individual trustee has a final decision making right.

Agents:

1. What is an Agent in my Statutory Durable Power of Attorney?
   An Agent in a Statutory Durable Power of Attorney is a person you appoint to act on your behalf, typically for all forms of financial and property matters, in the event you are incapacitated and cannot make those decisions. The person is responsible for the protection and administration of your estate while you are incapacitated. The Agent does not act on your behalf when you die.
2. What is an Agent in my Medical Power of Attorney?
   An Agent in a Medical Power of Attorney is a person you appoint to make medical decisions for you in the event you are incapacitated and unable to make those decisions yourself. The obvious possibility is being unconscious and you need a medical procedure. In addition, when you are pre-admitted for most surgeries they will ask if you have this document so they know who to talk with in the event there are complications during the surgery.
3. What is an Agent in my HIPAA Release and Authorization?
   The Agent you name in your HIPAA Release and Authorization is permitted access to your medical records. The document effectively authorizes any medical personnel with your medical information to release that information to the person you named. You should have this document in place with your Medical Power of Attorney.

Estates:

1. What is an estate?
   For purposes of probate, it is basically everything you own, including your home, cars, bank accounts, retirement accounts, life insurance and personal property. What passes through probate may only be part of your "estate". For example, life insurance and retirement accounts typically pay out to an individual and are not part of the probate process. However, for determining federal estate tax liability those items are included in the value of the gross estate.
2. When is my estate considered to be a taxable estate?
   The federal law in this area will change in the next few years, but the current taxable estate for an individual is one that is greater than $3,500,000.00. A married couple has a taxable estate of $3,500,000.00 unless you do some basic estate tax planning that will increase the value of your taxable estate to twice that much, or $7,000,000.00. If you want to estimate your taxable estate use one of the worksheets provided on this website.
3. Is my life insurance considered part of my estate?
   The death benefit of life insurance is included in your gross estate for determining your federal estate tax liability. However, it is not included in your probate estate, meaning it does not go through probate to be distributed.
4. Is my retirement account part of my estate?
   Your retirement account is considered part of your gross estate for determining your federal estate tax liability. However, like your life insurance, it is not included in your probate estate unless you name your estate as the beneficiary of your retirement account (which is not a good idea to do).

Community Property and Separate Property:

1. What is Community Property defined as in Texas?
   Generally speaking, any assets you acquire during your marriage are presumed to be your community property. This presumption means the person trying to argue it is separate property (and not community property) has the burden of proving to the Court why it is separate. There are some clear examples of exceptions to the community property rule. For example, assets that are inherited are considered to be the separate property of the person who inherited them regardless of whether or not they are married. Certain personal injury recoveries are also considered to be the separate property of the person who was injured even though they are married. On the other hand, income that comes from separate property is community property! It can get very confusing so if you have concerns about it talk with an attorney.
2. What is Separate Property defined as in Texas?
   As simple as this sounds, anything that is not community property is separate property. Remember, the presumption is that any asset acquired during marriage is presumed to be community property. All of the assets you bring into a marriage are separate property when you get married, but be careful. If you commingle your separate property with community property, and it becomes difficult to determine which is which, all of the property takes on the character of community property. This is one reason trusts are used in the State of Texas, because you can keep your separate property in the trust and help trace it so it does not become community property. In addition to assets you bring into the marriage, inheritances and certain personal injury recoveries are also the separate property of the recipient.
3. Why does it matter to me if I identify my estate as community or separate property?
   If you are single or in a domestic partnership it does not matter, because everything you own is your separate property (be careful though because you might be in a general partnership without even knowing it!). If you are married, your will only controls your 1/2 of the community property you own and your separate property. You cannot control your spouse's separate property or "will away" your spouse's interest in your spouse's community property without his or her agreement.
4. Why does my Will say my spouse is entitled to all of my interest in my spouse's retirement accounts?
   Technically, if your spouse worked while you are married all or a portion of his or her retirement account is community property, and you are entitled to 1/2 of it. Most people do not want this to occur because it can cause the liquidation of the account and can seriously affect retirement planning. We simply state that your are giving up your interest so your spouse will retain the entire account.
5. What about property I own that is not in the State of Texas?
   Property you own anywhere is included in your gross estate for estate tax purposes. However, unless the property is held in a Texas trust the property outside of the state is not going to fall under the jurisdiction of Texas. Your Executor will actually file a separate probate action in the state where the property is located, and the property laws of that state will apply. There are ways to avoid this extra probate and you should consult an attorney to discuss them if you own property outside of the State of Texas.