Frequently asked questions about Wills and Probate

Q: What is a "Living Will"?

A: A "Living Will" is a document in which you express your desire not to have your life prolongedby artificial means once two physicians have determined that your death is imminent and no recoveryis expected.

You also need to consider having a "Durable Power of Attorney for Health Care" prepared. This isa document that permits you to choose someone to make health care decisions for you in the eventyou are temporarily incapacitated and unable to make those decisions for yourself.

Many attorneys recommend that you have these documents done at the same time you do your Will,and I do them for a minimal charge if you do so

Q: Do I really need a Will?

A: The law does not require that you have a Will, and the Probate Code provides a means of dividing your property among your natural heirs, such as your spouse and children. However, the cost of probating an "Intestate" estate (where there was no Will) is substantially higher. The cost of a Will is usually substantially less than the difference in cost.

If you have minor children, it is especially important to make provision for their care in the event youand your spouse die while they are still minors. If you do not, your children may be the subject ofa court battle between family members as to who will take care of them. In your Wills, you and yourspouse can make that choice. Also, any funds will have to be managed by someone. If you set upa Trust for them in your Wills, the Trustee can manage those funds without Court approval. This canresult in a substantial savings to your Estate, and if you choose, you can keep those funds in trustthrough your children's college years rather than having it distributed to them at age 18.

Additionally, if you have a Will, you can control the distribution of your property in the manner youdesire. For example, you may wish to leave part of your estate to charity, or may desire to leavemore property to a child with special needs.

Q: How can I avoid Probate?

A: Many companies advertise devices which they say will avoid the Probate process. For residents of Texas, these devices are usually a waste of money. Texas Probate is simple and relatively inexpensive, and unless you are willing to keep up a lot of paperwork, your estate will often wind up in Probate court anyway.

The most common of these devices is a "Living Trust" to which you transfer all of your property while you are still living. You can not avoid Estate Taxation by this method, and unless you continue to hold ALL of your property in this Trust, there may still be a need for Probate.

A Living Trust can be useful in certain circumstances, however. If you and your spouse feel the needfor someone else to manage things for you, you can set up a Trust to permit that. If you are aboutto remarry, and you have substantial property and children by a prior marriage, you can set up a Trustto provide for your spouse during her lifetime, with your property going to your children after herdeath.

Q: What about Estate Taxes?

A: Few estates are required to pay Estate Taxes, and that number will be even fewer as the increasein the "Unified Credit" is phased in during the next few years. If you are married, your spouse willnot be required to pay any Estate Taxes on your death. If you are not married, your estate may betaxed if it is over $625,000 now (that threshhold will increase to $1,000,000 over time). Those taxesare at a high rate, however, and you may wish to give some property away during your lifetime toavoid them. You need to consult an attorney about such gifts, however, as there are limitations asto how much you may give each year without tax consequences.