Practice Areas

Probate of a Will
Probate Testate / Intestate
Flat Fee Probate of a Will
Same Sex Partners and Unmarried Couples
Estate Planning
Guardianships
Elder Law
Texas Pet Trusts

Probate of a Will

Each type starts out the same but the process begins with filing the initial application and getting a personal representative appointed. After filing the application, a number of things occur, including the following:

§ Filing the will with the court, where it is proved valid or invalid

§ Accounting for all the assets of the estate and reporting the results to the court

§ Creditors are given notice of the death and are given the opportunity to make claims against the estate

§ Debts and expenses of the estate will be paid

§ Remaining assets are distributed according to the will or according to Texas law, if there is no will

§ If there is a dispute about the validity of a will or a disagreement about how assets should be distributed, probate litigation may occur.

In Texas there are three types of probate administration. The differentiating factor in each type of administration is the level of court supervision. Each of the three has it’s advantages and disadvantages. Following are the three types of probate:

Dependent administration: This form of probate has a high level of court supervision. It means that the administrator needs the court’s permission to enter into almost any transaction, from paying the estate’s debts to selling property. The following items are considered about this probate administration:

§ Conflict: Significant conflict among heirs or beneficiaries results in court supervision and the judge can oversee the conduct of everyone involved, providing some protection for the administrator

§ Creditor issues: This type of administration requires creditors to follow strict procedures for making claims if a creditor fails to present their claim within a certain time or makes a claim incorrectly; the estate will no longer be liable for that debt.

§ Bond: The administrator must provide a bond based on the size of the estate. The bond is there to provide protection for the beneficiaries and creditors of an estate. Once a dependent administration is closed the administrator

§ Fees and Expenses: Repeated applications to the court for approval of an administrator’s actions means that legal fees and court costs are typically HIGHER than other types of administration.

Independent Administration: This is the most common type of probate administration in Texas. Independent Administration is much less expensive than dependent administration because the administrator does not need to go to court very often, nor does he or she usually have to post a bond. This type of administration can be either requested in the will or arise by consent of all heirs or beneficiaries. Things to consider:

§ Efficiency: This type of probate can usually be completed more quickly than a dependent administration.

§ Court Involvement: This proceeding involves less court involvement, which means less attorney’s fees and court costs to you. The personal representative does not need court approval for all actions, saving the estate on fees and expenses.

Muniment of Title: This method of probate is unique to Texas. There is no executor or administrator appointed to distribute property. Rather, once the court certifies that the will is truly the last will of the deceased person, the court’s order itself transfers title to the intended beneficiaries. Essentially, the court order serves as an instrument transferring title to property.

§ A muniment of title works best when real estate is the only asset in the estate. If there are bank accounts, brokerage accounts or similar assets, it is likely that a dependent or independent administration will be necessary.

Probate Testate and Intestate

Each type starts out the same but the process begins with filing the initial application and getting a personal representative appointed. After filing the application, a number of things occur, including the following:

§ Filing the will with the court, where it is proved valid or invalid

§ Accounting for all the assets of the estate and reporting the results to the court

§ Creditors are given notice of the death and are given the opportunity to make claims against the estate

§ Debts and expenses of the estate will be paid

§ Remaining assets are distributed according to the will or according to Texas law, if there is no will

§ If there is a dispute about the validity of a will or a disagreement about how assets should be distributed, probate litigation may occur.

In Texas there are numerous types of probate administration. The differentiating factor in each type of administration is the level of court supervision. All have their advantages and disadvantages. Following are the types of probate available:

Dependent administration:
This form of probate has a high level of court supervision. It means that the administrator needs the court’s permission to enter into almost any transaction, from paying the estate’s debts to selling property. The following items are considered about this probate:

§ Conflict: Significant conflict among heirs or beneficiaries results in court supervision and the judge can oversee the conduct of everyone involved, providing some protection for the administrator

§ Fees and Expenses: Repeated applications to the court for approval of an administrator’s actions means that legal fees and court costs are typically higher than other types of administration.

Independent Administration:
This is the most common type of probate administration in Texas. Independent Administration is much less expensive than dependent administration because the administrator does not need to go to court very often, nor does he or she usually have to post a bond. This type of administration can be either requested in the will or arise by consent of all heirs or beneficiaries. Things to consider:

§ Efficiency: This type of probate can usually be completed more quickly than a dependent administration.

§ Court Involvement: This proceeding involves less court involvement, which means less attorney’s fees and costs to you. The personal representative does not need court approval for all actions, saving the estate on fees and expenses.

RESPONSIBILITIES OF AN INDEPENDENT EXECUTOR

§ You must collect all the deceased assets of the deceased person’s estate and safeguard them. This includes car titles, jewelry, keys to homes and safes, and bank cards. Place all of this information in a safe place where no one will have access to it. Remember that as executor, you can be held liable for anything missing from the estate.

§ You must send a notice to all creditors. If available, you will use liquidated money from the estate to pay any remaining creditors. The best way to ensure all creditors are paid is to request a credit report and send the creditors a copy of the death certificate. This will provide the creditor notice of the death, at which point they will send you a final bill. Pay the bills if they are accurate, but if they do not seem valid, challenge the claim.

§ You must notify all insurance companies and public agencies of all insurance accounts, social security information, and notify these entities of the death. Most will also require a copy of the death certificate. If the deceased person has a widow, be sure and specify their information to the social security office for surviving spouse’s payment.

The probate process can become more complex if anyone challenges the validity of the will. It is the executor’s job to protect the assets and deliver them to the proper people or organizations. It is our job to make your responsibilities as an executor to run smoothly and without any unnecessary problems.

Muniment of Title:
This method of probate is unique to Texas. There is no executor or administrator appointed to distribute property. Rather, once the court certifies that the will is truly the last will of the deceased person, the court’s order itself transfers title to the intended beneficiaries. Essentially, the court order serves as an instrument transferring title to property.

Small Estate Affidavit:

A small estates affidavit may be filed when an individual dies intestate and there is no petition for the appointment of a personal representative pending, nor is the value of the entire assets of the estate over $50,000.00. Thirty days must have elapsed since the death of the decedent and an affidavit sworn to be two disinterested witnesses, by all such distributes that have legal capacity and, if the facts warrant, by the natural guardian or next of kin of any minor or the guardian of any other incapacitated person who is also a distribute, which affidavit shall be examined by the judge of the court having jurisdiction and venue. After reviewing the affidavit and whether or not it conforms to the terms of the Probate code the Judge in his discretion may approve the affidavit.

Declaration of Heirship:

When a person dies without a will or a provision of the will fails to dispose of all the probate assets, the most common estate settlement proceeding is a judicial declaration of heirship. The Texas statutes of intestate succession determine the identities of the rightful heirs and determine what portion of the community property passes to the heir as well as what portion of separate property passes to that heir. All heirs and beneficiaries must either be served with citation or enter an appearance through a written answer or a waiver. An application for heirsip may be filed by an administrator, heir, secured creditor, guardian, or other interested party. All heirs must receive certified or registered mail service of the application.

Flat Fee Probate of a Will

Most wills are probated without a contest from any source. This website attempts to point out in a straight-forward manner exactly what will be included in an uncontested probate, and what will be required of you.

BASIC SERVICES IN A FLAT FEE PROBATE:

Review of Decedent’s Will to insure validity and to determine what will be required to allow the court to admit it to probate;
Meet with proposed executor to gather information required to make application for probate;
Preparation of Application for Probate;
Filing of application and original of Will with Court;
Publication and posting of the probate application;
Creditors are given notice of the death and are given an opportunity to make claims against the estate;
Setting a hearing on application to probate the will in the probate court;
Court appearance and presentation of evidence in support of application;
Prepare and file proof of facts, oath of executor and order admitting will to probate;
Hand carry oath of office of INDEPENDENT executorand present to a clerk of court authorized to issue letters testamentary;
Order and supply to executor the letters testamentary;
Work with executor to prepare an inventory of items belonging to the estate;
Filing of inventory with the Court and accounting for all assets and debts of the estate;
Confer with survivors and /or family as requested by executor or executrix to determine if other special legal needs exist.

“UNCONTESTED” (basic services) for purposes of this presentation assumes there are no questionable circumstances or conditions (i.e. mental capacity, undue influence, copies of wills, etc). Further it assumes that the estate has sufficient and liquid funds to pay all debts and claims against the estate and to pay all expenses of administration. Flat fees are not available in taxable estates, estates with property outside the United States of America. Flat fee assumes the client will handle all claims against the estate. Because the proceeding involves less court involvement, this means less attorney’s fees and costs to you. The personal representative does not need court approval for all actions, saving the estate on fees and expenses.

RESPONSIBILITIES OF AN INDEPENDENT EXECUTOR

Collect all the assets of the deceased person’s estate, and safeguard them. This includes car titles, jewelry, keys to homes and safes, and bank cards. Place all of this information in a safe place where no one will have access to it. Remember, as an executor, you can be held liable for anything missing from the estate.
You must send a notice to all creditors. If available, you will use liquidated money from the estate to pay any remaining creditors. The best way to ensure all creditors are paid is to request a credit report and the creditors a copy of the death certificate. This will provide the creditor notice of the death, at which point they will send you a final bill. Pay the bills if they are accurate, but if they do not seem valid, challenge the claim.
You must notify all insurance companies and public agencies of all insurance accounts, social security information, and notify these entities of the death. Most will also require a copy of the death certificate. If the deceased person has a widow, be sure and specify their information to the social security office for surviving spouses’ payment.

In a flat fee probate of a will you will be able to proceed without any surprises or unintended costs, while you are suffering the loss of a loved one.

Same Sex Partners and Unmarried Couples

Unmarried couples and same sex partners face unique estate planning challenges. If proper planning is not done in advance and certain safeguards are not in place, your loved one may be open to a host of problems. These problems could include, but are not limited to trouble dealing with your loved one’s medical issues, trouble dealing with unfriendly relatives who may step in and destroy property interests, as well as medical, financial and end of life decisions. Without proper planning, the Texas Probate Code, under current law, may create situations where the partners of physically or mentally incapacitated persons are denied access to each other even for farewell visits. Thoughtful planning is just an additional way of saying, “I Love you.”

Needless to say gay, lesbian and unmarried couples are not afforded the same rights as are married, heterosexual couples. Some of the most familiar rights afforded to married couples, but not to same sex partners or to unmarried couples, include:

Protections under probate inheritance laws;
Preferences under rules for healthcare and disability
Ability to transfer large sums of money to one another without a gift tax or estate tax liability
Survivor’s benefits under pension, retirement and social security, alimony and other property rights upon termination of marriage.

While gay, lesbian and unmarried couples do not receive these rights automatically, with proper planning, many similar protections and benefits can be created.

Your legacy and your family is safe with us when you utilize the power of planning so we can help protect you and your loved one by creating a comprehensive and thoughtful Estate Plan, which encompasses incapacity planning, wealth transfer planning and beneficiary protection planning. Additionally , we can also assist you in establishing a Cohabitation Agreement or a Life Alliance Agreement, which outlines asset ownership as well as liability issues for you and your partner, applicable both during your lives together and in the event of the end of your relationship.

Estate Planning

Estate Planning Documents

Following is a list of the basic five estate planning documents every adult in Texas should have:

Texas Last Will and Testament

A will is a legal document that directs how your property will be distributed when you die, and can create trusts for the benefit of your spouse or children. A will allows you to name a person you trust to oversee the management and distribution of your assets. It also allows you to appoint a guardian to care for to care for your minor children.

Without a will, your assets will be distributed according to a statutory formula, which may conflict with how you have liked for assets to be distributed. Also, if you do not appoint a guardian for your minor children, a judge who doesn’t know you or your family may have to make that decision for you.

Texas Durable Power of Attorney

A durable power of attorney gives you the power to appoint a trusted family member or friend as an agent to manage your finances if you are no longer capable of managing them yourself, such as if you become temporarily or permanently incapacitated.

If you become incapacitated and do not have a statutory durable power of attorney in place, a court-ordered guardianship may be necessary. Guardianship is time-consuming and expensive, and be avoided by creating a power of attorney.

Texas Medical Power of Attorney

A medical power of attorney is a document that allows you to designate a trusted family member or friend to make medical decisions for you in the event you become unconscious or mentally incapable of making those decisions for yourself.

Medical powers of attorney are not just for the elderly. Unexpected injuries or illness can occur at any age, so all adults should have one in place.

HIPAA Authorization

HIPAA, the Health Insurance Portability and Accountability Act, is a Federal law that sets rules and limits on who can look at you r medical records or receive your health information. Covered entities that violate HIPAA face stiff penalties, which make them reluctant to share medical information with anyone by the patient, even close family members.

Texas Directive to Physicians

A living will, or directive to physicians, is a document that allows you to instruct your physicians not to use artificial methods to extend your life in the event you are diagnosed with a terminal or irreversible conditions.

Guardianships

Guardianships are considered when elderly parents or a loved one with special needs are unable to make decisions, handle money appropriately or otherwise care for themselves. At this point in their lives, although the process is complex, it will ultimately give you and your family the ability to make the best possible decisions for an elderly or incapacitated loved one.

Essentially, a guardianship designates another as the guardian of the estate or the guardian of the person. Usually a guardian will be appointed by a court after a hearing is held to learn the specific facts of your particular situation. Establishing a guardianship can be a sensitive subject, and it is often challenging for clients and family members alike, and those challenges can escalate into court actions to contest the guardiahip.

Guardianship: Although there is no statutory definition of a “guardianship,” the Texas Estates Code provides that the policy and purpose of a guardianship is to grant another person or entity limited authority over an incapacitated person to the extent required by such person’s mental and/or physical limitations. Authority is limited to that necessary to promote and protect the incapacitated person.

Guardian: A guardian is the person or entity appointed to serve as the legal representative of an incapacitated person. IT includes a person or entity who is appointed as permanent or temporary or as successor guardian. except when the Texas Probate Code expressly provided otherwise, the term guardian includes the guardian of the estate and the guardian of the person of an incapacitated person. Tex. Prob. Code Ann. sec. 601 (11)

When does a person need a guardianship?

A person is in need of a guardianship when the court determines that the person is “incapacitated”. A person is determined to be incapacitated by a court when that person lacks the capacity to do some, but not necessarily all, of the tasks necessary to care for himself or herself or to manage his or her property. A person is totally incapacitated if he or she lacks the capacity to perform any task necessary to care for himself or herself or his or her property. A person is partially incapacitated if he or she lacks the capacity to perform some task but has sufficient capacity to perform other tasks necessary to care for himself or herself or his or her property. Determination of incapacity of an adult proposed ward must be evidenced by recurring acts or occurrences within the proceeding six (6) month period, and not by isolated instances of negligence or bad judgment.

ALTERNATIVES TO GUARDIANSHIP

Durable Power of Attorney: A durable power of attorney is a document by which an individual, known as the principal, designates another to act as his or her agent in financial matters. If properly drafted, a durable power of attorney will survive the principals’ incapacity and, thus the agent may continue to act on behalf of an incapacitated principal. This is a much class costly way for a person to provide for the management of his or her financial affairs in the event of incapacity.

Medical Power of Attorney: Similar to a durable power of attorney, a Medical Power of Attorney for health care is a document by which an individual may delegate to an agent the authority to make health care decisions. The agent under a durable power of attorney for health care may make any health care decision on the principal’s behalf that the principal could have made but for the principal’s lack of capacity to make such decision.

Directives to Physicians: This is more commonly known as a “living will.” A “competent” individual may execute a written directive regarding the use of “life-sustaining procedures” in the event the individual has a terminable or irreversible condition certified by two (2) physicians.

Elder Law

Medicare vs. Medicaid

Many Americans mistake Medicare and Medicaid as the same programs that offer similar benefits. Although both are government run programs, there are many important differences. Medicare provides citizens, the disabled and blind with medical benefits. Medicaid on the other hand provides healthcare benefits for those with little income.

Medicare is a public health insurance program for Americans who are over 65 years of age. This program does not cover long-term acre, but can cover for certain rehabilitation treatments. For example, if a Medicare patient is admitted to a hospital for at least three days and is subsequently admitted to a skilled nursing facility, Medicare may cover some of those charges. However, Medicare payments for such care and treatment will no cover charges if the patient is there 100 days or if the patient stops improving.

Nursing home patients often find their Medicare payments are cut much sooner than the 100 days. If a patient’s condition stops improving, Medicare coverage will be discontinued. For example, many older Americans are suffering from diseases with no known cure, such as Parkinson’s or Alzheimer’s disease. Consequently, it is simply implying that these patients be rehabilitated. These patients are typically denied skilled facility coverage in these types of situations.

In summary:

Medicare provides health insurance for those aged 65 and over;
Medicare is regulated under federal law, and is applied throughout the United States;
Medicare pays for up to 100 days of care in a skilled nursing facility;
Medicare pays for hospital care and medically necessary services that will see improvement;
Medicare does not pay for long term care
To be eligible for Medicare, you generally must have paid into the Medicare system.

Overview of Medicaid

Medicaid is a state-run program, funded by both the federal and state governments. Because Medicaid is administered by the state, the requirements and procedures vary across state lines, and you must research the law in your specific state. The federal government’s issues Medicaid guidelines, but each state gets to determine how guidelines will be implemented.

In Summary:

Medicaid is a health care program based on financial need
Medicaid is regulated under state law, which varies from state to state;
Medicaid will cover long-term care.

Texas Pet Trusts

Over half a million pets are euthanized every year and thousands are euthanized here in El Paso, Texas. Don’t let this happen to your beloved companion.

Have you considered what will become of your faithful companion and beloved pet when you are gone? You can have a plan that will easily provide for your pet’s food, shelter, and care. Truly, there is always a plan for God’s creatures that have become man’s companions.

One of the main goals of estate planning is to provide for your loved ones, and for many of us loved ones are our pets. There are numerous ways that you can leave your beloved pet cared for, and loved long after you are gone.

Unlike a will a trust becomes effective immediately upon the terms outlined in your trust which is usually death or disability. Your trust can also give specific directions about the daily care, medical attention, physical control, and even burial of your pet.

A trust is a legal entity set up to accomplish a particular purpose. you and your attorney will outline the specifics that detail when and under what circumstances the trust will take effect. This includes how the trust will be funded, who will be the trustee, successor trustee, beneficiary, and caretaker, and how the trustee or caretaker will manage your pet and the funds for your pet.

You will want your pet to be fed, cared for and to receive medical attention. You may designate funds for pet insurance, or even to enforce the trust. In your trust, you can also leave real property for housing your beloved companion.

Probate Terms

Each of the above referenced “faces of probate” is a tool to be utilized to meet the goal of settling an estate with the least possible time, effort or expense, but the right tool must be selected and properly used.

The bottom line ends up as usual, being that probate utilizing independent administration is a relatively simple and relatively inexpensive procedure but you will need the services of an attorney experienced in probate law and procedures to guide you through the proces