Probate & Wills: 214.484.6500
3102 Maple Ave., Suite 625
Dallas, Texas 75201
Chapter 201 of the Texas Estates Code provide default rules for persons who die without a Will (“intestate”). The default rules are based upon marital and family relationships and are graphically summarized as follows:
As you may have already determined, there is a significant potential for problems with the intestate distribution scheme. A few of the more typical problems are explained below.
Separate Real Property and the Surviving Spouse — In cases where the Decedent leaves behind a surviving spouse and an estate that includes separate real property, the surviving spouse is often shocked to learn that he or she does not inherit the whole of the separate property. In fact, in cases where the Decedent leaves descendants, the surviving spouse inherits only a “life estate in one-third” in the separate real property. This means that the surviving spouse can live on the property for the remainder of his or her own life, but he or she cannot sell or mortgage the property without the cooperation of the descendants. If those descendants are minors, they may not be able to give legal consent.
Minors or incapacitated persons as heirs of the Estate — Many courts will require that a guardianship be established in order to receive that portion of the estate that is passed to heirs who are incapacitated or minors. Furthermore, many Courts will not allow an independent administration in cases where incapacitated persons are heirs of the estate. Thus, in cases where the Decedent leaves behind descendants who are incapacitated, significant court involvement in the estate may be required. Significant court involvement usually means significantly more expense.
Community Property and Children from a Previous Relationship — In cases where the Decedent leaves behind descendants from a previous relationship and an estate that includes community property, the Decedent’s share of the community property estate passes to the Decedent’s children. Thus, the surviving spouse will now share the community property estate with the Decedent’s children. Again, this means that the surviving spouse cannot sell or mortgage the community property without the cooperation of the other heirs to the property.
A Will is a legal document that is written to ensure that upon your death, your assets are given to the heirs that you specify. Without a will, your estate will be distributed according to state law.
The marketers of living trusts have done a good job of informing seniors about the alleged evils of probate. Stories are legendary of will contests arising because the witnesses to the will cannot be located or of attorneys charging tens of thousands of dollars in legal fees to settle the simplest of estates. Probate in Texas, however, can be easy and inexpensive by providing for an independent administration within a “self-proved” will.
Probate is the process by which your financial affairs are wound up and your assets are distributed to your heirs. This administration will be required whether you die with or without a will, and your executor will be the person that oversees the process. As part of the probate administration, your executor will gather your assets, pay any of your creditors, determine your rightful beneficiaries or heirs, and distribute any remaining assets to the proper persons.
Clearly, the primary function of a will is to leave instructions on how to distribute your property after your death. A lesser known function of a will is to appoint the executor who will carry out your wishes. It is while appointing this executor that you have an opportunity to save your heirs significant amounts of money in legal fees.
Also, a will must also be executed with certain formalities in order to be considered valid under the Texas Estates Code.
In contrast, the executor in an independent administration is given wide latitude to administer the estate without obtaining court approval of each step of the process. In fact, in an independent administration, Texas law provides that no action shall be had in the courts in relation to the settlement of the estate other than 1) the probating and recording of the will, and 2) the filing of an inventory, appraisement, and list of claims of the estate. Think about it: after the offering up of the will and the filing of an inventory, it is possible that your executor (and his or her lawyer) will not have to make any more trips to the courthouse!
Because the powers granted to an independent executor are very broad, it is imperative that you have the highest level of confidence in the diligence and integrity of the executor you appoint. There have been cases where a poor choice for executor has led to disastrous results. Thus, an independent executor should be chosen carefully and should be someone in whom you have complete trust.
A second procedure that can significantly reduce the legal fees incurred by your estate is the use of a “self-proved” will. In a self-proved will, the testator and the witnesses sign the will. The testator and witnesses then sign a separate “self-proving affidavit” which is attached to the will. The affidavit is later used when the will is offered for probate, providing proof of the necessary execution requirements. This eliminates the need to locate the witnesses and will work even if the witnesses are deceased.
Before rushing out to buy a will kit that features a “personal representative” and an attached notarized affidavit, please realize that the language in many will kits does not substantially comply with the Texas requirements for independent administration or for a self-proved will.
Also, a will must also be executed with certain formalities in order to be considered valid under the Texas Estates Code. The instructions in the kits are not always clear, resulting in the use of the wrong form or incorrect completion of the document. This could lead to the execution of a defective Will, forcing both your estate and your beneficiaries to pay money to attorneys to litigate the correct meaning and validity of your will. This amount will easily surpass any amount you would have paid to have a will correctly drafted in the first place.
In conclusion, probate in Texas is not difficult if you have an up-to-date, self-proved will with an independent executor. By having a skilled attorney draft such a will today, you may save your family great expense and hours of worry at a time when they can least afford it.
When used — A simple will provides for a general gift of all of your property to your spouse, if living, and if not, to your children in equal shares.
Requirements — In order for a simple will to serve as a solution:
Advanced Estate Planning
When used — When a simple will cannot effectively address your estate planning goals.
Requirements — You must be a Texas Resident.
Simple Wills for a Fixed-Fee
The Duran Firm prepares “Simple Wills” for a $350.00 fee. The Duran Firm cannot quote you a final price until the facts and circumstances of your estate are determined. In most circumstances, however, a Simple Will is appropriate.
Estate Planning Packages
The Duran Firm prepares estate planning packages that contain Simple Wills and ancillary estate planning documents such as powers of attorney and living wills.
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Estate Planning Package, includes:
Advanced Estate Planning for an Hourly-Fee
If a more sophisticated estate plan is required to address your estate, there is no way to know in advance how complex your estate plan will be. There is also no way to estimate costs. The only fair way to bill attorney’s fees for these types of cases is to bill fees on an hourly basis. No flat fees are available. Effective June 8, 2009, The Duran Firm’s hourly rate for attorney’s fees is $225.00 per hour. The Duran Firm’s hourly rate for paralegal work is $75.00 per hour.
To get started on an Estate Planning Package, please download the Prospective Client Information Worksheet for Estate Planning by clicking on the link below and then return the completed Worksheet to our office:
The Worksheets are downloadable Adobe® PDF files. If you are having trouble downloading the file, you may have to install the Adobe® Reader®.
Once the Client has fully completed the Prospective Client Information Worksheet, he or she can submit the form online or can send the completed Worksheet to:
The Duran Firm
3102 Maple Ave., Suite 625
Dallas, Texas 75201
You may also fax or e-mail the documents to the firm. To avoid junk faxes and spam, we have not listed our fax or email address anywhere on this website. Please call us for the fax number or email address. If you do not hear from the Firm within 1 week of mailing, please call to follow up.
A representative from the Firm will contact you upon receiving the Worksheet to discuss payment and to coordinate the signing of the Attorney-Client Fee Agreement. Most times, the we can send you drafts of your estate planning documents via mail or email. Once you are satisfied with your documents, we will schedule an appointment to conduct a will execution ceremony.
Payment Terms — The Firm accepts cash, checks, money orders, MasterCard and Visa for the payment of attorney’s fees and expenses. Due to the reasonableness of our rates, payment of all expected fees and expenses is due prior to the Firm accepting you as a Client.