Wills, Probate, and Powers of Attorney Flashcards
What is a will?
A legal document that tells the world who should receive which of your assets after your death
What does a will do?
A will lets your assets be distributed the way you request and allows you to name guardians for any dependent children.
When is a will effective?
When the testator dies.
Do you have to have an attorney for a will?
No
Can you leave money to whoever you want in a will?
Yes
What goes into a will?
-Identity of the testator
-Sound Mind
-Voids prior wills
-Bequests to beneficiaries (who gets what)
–specific bequests by letter to
executer
-Identity of the family
-Spouse
-Children
-Afterborn children
-Parents
If I am a part owner of community property, can I still leave it to somebody?
Yes, you can give away your own interest in the property.
Is inheritance community or separate property?
Separate property and can be left to anyone the testator chooses.
What is Life Estate?
In Texas you can leave separate property to anyone you want, but if your spouse is living in the home s/he cannot be kicked out.
What are the types of marriages in Texas?
Informal and Ceremonial
What is required for an informal marriage?
- Cohabitate
- Hold yourselves out
- Agree that you are married
What is required in a ceremonial marriage?
- license
- ceremony
Independent Executor- what does the executor do and what is the significance of the word “independent”?
A person named in the will to carry out the will (execute the will) who is “free from oversight of the court.”-which is the significance of the word Independent.
Does the executor get paid?
The executor can get paid a %of the assets they create, but most don’t take payment.
Who should I select as the executor?
Someone you trust
What if someone named me as their executor, but I don’t want to do it?
Decline
Can you have a co-executor?
Yes, but judges hate it.
Compared to other states, is probate easy or difficult in Texas?
Easy- Texas is #1 in ease of probate.
Can minor children inheret?
No
Contingent Trust
Because a minor child cannot inheret, the trust is created and can either lump sum distribute when the minor becomes of age (18)or make a 3 point distribution with the ages (18+)picked by the testator .
Who can be the guardian of minor children?
Testator can pick anyone
Can the father or mother of the children be prevented from getting the kids?
No
Should funeral arrangements be put in the will?
No. It is a bad idea because the will is often not read until after funeral arrangements have been carried out and something could have already happened to your body that you didn’t want. You should just let people know what you want to happen when you die while you are alive.
What is an In Terrorem Clause? Is it optional?
A no contest clause. Says if you contest the will, even of you win, you can’t get anything from the will. Jac automatically puts this in her client’s wills, but yes, it is optional.
What is a Spendthrift Provision? Is it optional?
It’s says you cannot assign your benefit to the will to a 3rd party. It prevents motive to murder the testator. It is NOT optional.
What is a Pet Trust and why would you have one?
If you want to leave money to your pet, it must be put into a Pet Trust with a trustee who will take care of things because pets cannot handle financial matters.
What is a Self-Proving Affidavit? Where is it and why do we have it?
It is the signature page with 2 witnesses, the testator, and a notary all signing. It is at the end of the will and keeps from having to take witnesses to probate.
What is a will execution?
It is the signing of the will. The testator, 2 witnesses each at least 14 years old, and a notary must sign.
What is capacity and what are the two most used capacity questions?
Capacity is being aware what the testator is doing- s/he is aware a contract is being made to distribute estate after death. Questions- What year is it? Who is the President.?
What do you do with your will?
Make copies of your will. Testator keeps copy and perhaps gives one to each kid. Keep the will somewhere safe, but bank deposit is bad idea because no one can get to it. You can file with county, but is bad idea because it is public record. Lawyer will keep a copy.
What if you change your mind about the will?
You can add a codicil (a document executed in same way as a will, making additions or changes to an existing will), but most lawyers recommend redoing the will completely.
What is a Holographic Will?
A will completely in the testator a handwriting. It cannot be done on any part on the computer or be on a fill in the blank form.
What does Intestate mean?
To die without a will
What happens intestate?
Estate follows Texas Probate Code
Can the lawyer be a beneficiary in a non-family will that s/he drafts?
No
Is a contractual will allowed?
No. There is a provision that they are not contractual- that the wills are not obligated to be designed/fulfilled in such a way that they are contingent upon each other.
Can a husband and wife do their wills at the same time with the same lawyer?
Yes
If a husband and wife draft their wills at the same time with the same lawyer and then the wife calls the lawyer and says that she wants to change something because she has a lover and wants to add him- what does the lawyer do?
The lawyer cannot do either will- husband or wife- it becomes a conflict of interest.
What does probate mean?
To prove up (to prove what will says it is)
Who has to go to court for probate?
Executor and lawyer
What if the will’s executor lives out of state?
S/he can still be executor, but must have “registered agent for service of process” - someone is Texas who registers and agrees to receive notices
What is the statute of limitations on a will?
4 years- but it is a soft statute meaning that the court will usually let you probate even if it has been more than 4 years.
What are non-probate assets?
Assets that do not have to probate after death- insurance with beneficiary, checking accounts with someone else’s name on them
What is a living trust? Good idea?
A living trust is completely different from a living will. It is sold to people to keep from having to probate. Used as a scare tactic on old people. In Texas, probate doesn’t cost a lot and setting up a trust will cost more than probate ever would and usually end up having to probate anyway. For a living rust to work, all real property, accounts, car must be changed into trust’s name. The only time in Texas this might be beneficial is if you own property in other states.
Name the different Powers of Attorney
Durable Power of Attorney Medical Power of Attorney Directive to Physician Designation of Guardian Appointment of Agent to Control Disposition of Remains
What is a Durable Power of Attorney?
Gives another person- the Agent-the power to make financial decisions. It is only effective while alive and can be effective immediately or upon incapacity.
Medical Power of Attorney
Gives another person the power to make medical decisions. It must be a separate document-not part of any other document. It can be effective immediately or upon incapacity.
Directive to Physicians
Directs your physician and other medical professionals about your wishes in a variety of end-of-life situations. It is often called a “living will”.
What is the difference between an “advanced directive” and a “directive to physicians”?
An advanced directive usually refers to mental health.
Designation of Guardian
Designates who you want to be your guardian should the need for a guardian arrive. Designates who you do NOT want to be your guardian should the need for a guardian arise.
Appointment of Agent to Control Disposition of Remains
Appoints a person to control funeral planning and disposition of remains after your death. The agent must also sign the document, unlike all of the other documents discussed because the agent must agree to accept financial responsibility.
When did Appointment of Agent to Control Disposition of Remains begin?
During the AIDS crisis, mainly in gay community- a partner would die and then partner wouldn’t even be allowed to go to funeral. Jac sent this form to Pro Doc and it is still there.
How did common law marriage in Texas come about?
Texas was so big and there weren’t enough judges and they didn’t want illegitimate children, so they made common law marriages and eventually put it into statute-informal marriage.
