Wills, Probate, and Powers of Attorney

Question 1

What is a will?

Answer 1

A legal document that tells the world who should receive which of your assets after your death

Question 2

What does a will do?

Answer 2

A will lets your assets be distributed the way you request and allows you to name guardians for any dependent children.

Question 3

When is a will effective?

Answer 3

When the testator dies.

Question 4

Do you have to have an attorney for a will?

Answer 4

No

Question 5

Can you leave money to whoever you want in a will?

Answer 5

Yes

Question 6

What goes into a will?

Answer 6

-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

Question 7

If I am a part owner of community property, can I still leave it to somebody?

Answer 7

Yes, you can give away your own interest in the property.

Question 8

Is inheritance community or separate property?

Answer 8

Separate property and can be left to anyone the testator chooses.

Question 9

What is Life Estate?

Answer 9

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.

Question 10

What are the types of marriages in Texas?

Answer 10

Informal and Ceremonial

Question 11

What is required for an informal marriage?

Answer 11

• Cohabitate
• Hold yourselves out
• Agree that you are married

Question 12

What is required in a ceremonial marriage?

Answer 12

• license

- ceremony

Question 14

Independent Executor- what does the executor do and what is the significance of the word “independent”?

Answer 14

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.

Question 15

Does the executor get paid?

Answer 15

The executor can get paid a %of the assets they create, but most don’t take payment.

Question 16

Who should I select as the executor?

Answer 16

Someone you trust

Question 17

What if someone named me as their executor, but I don’t want to do it?

Answer 17

Decline

Question 18

Can you have a co-executor?

Answer 18

Yes, but judges hate it.

Question 19

Compared to other states, is probate easy or difficult in Texas?

Answer 19

Easy- Texas is #1 in ease of probate.

Question 20

Can minor children inheret?

Answer 20

No

Question 21

Contingent Trust

Answer 21

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 .

Question 22

Who can be the guardian of minor children?

Answer 22

Testator can pick anyone

Question 23

Can the father or mother of the children be prevented from getting the kids?

Answer 23

No

Question 24

Should funeral arrangements be put in the will?

Answer 24

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.

Question 25

What is an In Terrorem Clause? Is it optional?

Answer 25

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.

Question 26

What is a Spendthrift Provision? Is it optional?

Answer 26

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.

Question 27

What is a Pet Trust and why would you have one?

Answer 27

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.

Question 28

What is a Self-Proving Affidavit? Where is it and why do we have it?

Answer 28

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.

Question 29

What is a will execution?

Answer 29

It is the signing of the will. The testator, 2 witnesses each at least 14 years old, and a notary must sign.

Question 30

What is capacity and what are the two most used capacity questions?

Answer 30

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.?

Question 31

What do you do with your will?

Answer 31

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.

Question 32

What if you change your mind about the will?

Answer 32

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.

Question 33

What is a Holographic Will?

Answer 33

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.

Question 34

What does Intestate mean?

Answer 34

To die without a will

Question 35

What happens intestate?

Answer 35

Estate follows Texas Probate Code

Question 36

Can the lawyer be a beneficiary in a non-family will that s/he drafts?

Answer 36

No

Question 37

Is a contractual will allowed?

Answer 37

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.

Question 38

Can a husband and wife do their wills at the same time with the same lawyer?

Answer 38

Yes

Question 39

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?

Answer 39

The lawyer cannot do either will- husband or wife- it becomes a conflict of interest.

Question 40

What does probate mean?

Answer 40

To prove up (to prove what will says it is)

Question 41

Who has to go to court for probate?

Answer 41

Executor and lawyer

Question 42

What if the will’s executor lives out of state?

Answer 42

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

Question 43

What is the statute of limitations on a will?

Answer 43

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.

Question 44

What are non-probate assets?

Answer 44

Assets that do not have to probate after death- insurance with beneficiary, checking accounts with someone else’s name on them

Question 45

What is a living trust? Good idea?

Answer 45

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.

Question 46

Name the different Powers of Attorney

Answer 46

Durable Power of Attorney
Medical Power of Attorney
Directive to Physician
Designation of Guardian
Appointment of Agent to Control Disposition of Remains

Question 47

What is a Durable Power of Attorney?

Answer 47

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.

Question 48

Medical Power of Attorney

Answer 48

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.

Question 49

Directive to Physicians

Answer 49

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”.

Question 50

What is the difference between an “advanced directive” and a “directive to physicians”?

Answer 50

An advanced directive usually refers to mental health.

Question 51

Designation of Guardian

Answer 51

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.

Question 51

Appointment of Agent to Control Disposition of Remains

Answer 51

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.

Question 52

When did Appointment of Agent to Control Disposition of Remains begin?

Answer 52

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.

Question 53

How did common law marriage in Texas come about?

Answer 53

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.