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Houston Probate & Estate Administration Law Blog

A step-by-step guide to the probate process

Upon a decedent's passing, a petition for probate must be drafted and filed with the probate court in the proper jurisdiction, which can generally be determined as the decedent's county of residence for the last six months of his or her life. Though each state possesses its own set of probate rules, the general process of estate administration remains universally the same.

An attorney can assist in the drafting of this document and is highly recommended, as it is a complex document consisting of many pages. Once filed, a judge will determine the validity of a will and set a hearing date. All beneficiaries and heirs of the decedent must be notified of such. This allows ample time for a party to object should he or she choose to do so.

A child's addiction complicates your estate plan

There are probably few in Texas who are not aware that the nation is in the midst of a substance abuse epidemic. Some studies show that 142 people suffer from a fatal overdose each day, and countless others struggle with their addiction. Of course, the sorrows and pain of addiction affect more than just the person with the addiction. Families and loved ones frequently suffer along with the addict.

Perhaps you are one of those parents who have gone through many dark times with a son or daughter's addiction. Now, as you prepare to create your estate plan, you have a difficult decision to make about how to distribute your assets appropriately and fairly.

Tips for locating missing heirs and beneficiaries

When entering into probate administration, an executor may not always know the location or even the identity of a named heir or designated beneficiary. Sometimes family members may have been missing or estranged for a number of years prior to the decedent's death. Since the location and notification of those individuals is part of the executor duties, it can become a very time consuming and frustrating process. Allow us to give you a few tips that may assist in your search.

First, understand that it is of vital importance that, as the executor of a will, you keep detailed records of your attempts to locate someone. These will also need to be filed with the court. In the event that an heir or beneficiary are unable to be located, it will be the probate judge's decision as to what should be done with their portion of a distribution. He or she must have documentation showing that every attempt possible was made to locate the person.

What constitutes a valid will in the state of Texas?

There are three types of wills recognized as valid by the state of Texas, and all have two mutual requirements. The testator must be at least 18-years-old, and he or she must be deemed to have a sound mind. This means that a general, valid will is based on the wishes of a party who is operating at full mental capacity and is fully aware of and capable of making such decisions. The age requirement does not apply if the testator is legally married or if he or she is a member of the U.S. Armed Forces. However, there are a few differing requirements among other types of wills.

In addition to the mutual requirements mentioned above, an oral will, also known as a nuncupative will, requires that the testator make such bequeaths at his or her residence or other place resided at for at least 10 days prior. An exception to this rule is when the testator has fallen ill and has been taken away from the residence, such as to a hospital where he or she dies.

Four types of Powers of Attorney

Many people do not realize that there are several different types of Power of Attorney. Each serves a specific purpose and has its own set of rules as to when it will come into effect, as well as when it will cease. Below, we discuss the four most common types.

First, a durable power of attorney deems that if a principal becomes incapacitated or determined unfit to make his or her own decisions, then the powers remain in place and decisions can continue to be made by the designated agent. This type of power of attorney is irrevocable.

Late singer with major assets died without an estate plan

Texans who downplay the importance of having an estate plan might come up with various justifications for their position. They might think they do not have significant assets to make it necessary to craft a will, a trust or other estate planning device. Those with major assets could simply put it off under the mistaken belief that it is something that can wait for a later time. Regardless of the financial standing, it is important to have an estate plan that suits a person's needs. This frequently comes to the forefront when a celebrity dies and it is later found that he or she did not have a will as is the case with the late singer Aretha Franklin.

After her death in mid-August, it was discovered that Ms. Franklin had not created a will, trust or any other document to prepare for the event of her death. This was revealed when her four sons filed that they were interested parties in relation to her estate. There was an acknowledgement from one of her lawyers that there was no estate plan and she died intestate - without a will. Because there was no will, the contents of her estate will be revealed to the public. Her niece has asked that she be the personal representative for the estate and perform the duties that would normally be part of the responsibilities of the executor. According to Ms. Franklin's entertainment attorney, she was encouraged to create a trust, but she did not choose to do so.

What should I know about Texas living will laws?

Texans who have concerns about the type of medical care they will receive should they become ill enough that artificial means are necessary to keep them alive will want to think about a living will. A living will is a key part of comprehensive estate planning and should not be ignored. The desire of the person is paramount with a living will. Many people do not want to be subject to medical intervention or be kept alive with artificial means. Therefore, it is important to remember important points about Texas law for living wills.

If there is a procedure or a machine that will be used to replace, maintain or restore a vital function and postpone death in a person whose condition is terminal and whose death would be imminent without the intervention, this counts as a life-prolonging act and the living will can prevent it should the person desire it. This does not include giving medication or performing procedures that will increase the person's comfort or end pain. The person can designate a person to make those decisions if he or she is incompetent or comatose.

As a new parent, you may want to consider estate planning tools

Having a child means that you will have another person to think about, hopefully, for the rest of your life. Before your child's birth, you may have already found your mind constantly on his or her needs. You undoubtedly have the mindset of an attentive and concerned parent, but have you considered how creating your estate plan could benefit your child?

You may have thought of an estate plan as a tool for older people who want to decide who gets their property. However, estate plans can include much more information and can benefit adults of any age, regardless of estate size. As a new parent, estate planning is especially important as it can help you plan for your child's care in the event of an unfortunate situation.

Wealthy or not, everyone can use vital estate planning documents

Texans who are without a vast portfolio and do not own significant amounts of property will often shun the basics when protecting themselves with an estate plan. There might be a perception that an estate plan is only necessary for those who own a lot. This is not the case. The reality is that people who function under the belief that they own so little that wills and other estate planning devices are unnecessary do have many items that need to be addressed by formulating at least a basic document. Still, it is important to understand what happens when there is no will or other estate planning document to serve as a guideline after death.

Dying without a will is known as dying intestate. In every state, there are contingencies in place to account for this all-too common issue. In general, intestacy laws dictate that the decedent's estate passes to the closest living relative. That could be a spouse, a child, a parent, or a sibling. The benefits of a will or other device are that it states exactly what the decedent wanted rather than relying on what the state laws say. Should a person fail to detail where he or she wants the assets and property to go, it will simply be passed along to the closest living relative whether that is what the decedent would have desired or not.

Legal help with probate issues and dependent administration

When a loved one dies in Texas, there are many things that a family will need to think about. Apart from the grief, there are legal factors that must be accounted for in the aftermath. Some of these can be complicated. Probate is an important part of the legal process after a loved one has died.

Part of ensuring a smooth completion to the legal issues is to know the different types of probate. A law firm that has experience in probate issues is crucial to these situations. There are three kinds of probate administration. The main difference between them is how much court supervision there is with each. There are benefits and drawbacks to the three and knowing which is preferable is a vital step. For those who believe significant supervision is needed, dependent administration might be the best bet.