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Frequently Asked Questions


What do I do with the will, power of attorney and/or medical directives once I have completed them?
Store your papers somewhere safe and make sure your executor or someone (family, etc.) knows where you put them. You can put them in a lock box or a safe deposit box at the bank or any place you feel they would be safe but don’t forget to let someone know where they are. You may even want to make copies and give them to those people you trust. If you do use a safe deposit box, you need to make sure that you provide for your executor to be able to access your box upon your death.

I am not sure exactly how my estate should be distributed. Should I wait?
No. Not if you have a good idea of what you want to accomplish with your will. Too many people procrastinate or use not being sure of who to leave what to put off doing a will until it is too late. The perfect time to make a will is now while you are thinking about it. It would generally be best to go ahead and make your best decisions on what to put in your will. If you need to make changes later, it is usually a matter of preparing and signing a simple ‘codicil’. A codicil is simply an amendment to your will.

Will the assets in my estate be subject to being taxed?
As of 4/15/02 the United States Treasury Department levies inheritance tax on estates having a value in excess of $800,000.00. This asset value threshold is scheduled to increase as follows:
4/15/05 - $900,000.00
4/15/06 - $1,000,000.00
4/15/07 - $1,200,000.00
Early and proper estate planning may significantly minimize the amount of inheritance tax. Consult your attorney as soon as possible.

I have seen forms available where I can do my own will. Is this advisable?
For many people, simple will forms, power of attorney forms and medical directives should be sufficient to address your needs and in most cases be better than no will..etc, at all. However, please be advised that the use of forms, including the ones available from this website, for estate planning purposes, does not and cannot substitute for the advise of a professional, trained and licensed attorney. If you are unsure of anything about the use of forms, go see your attorney. In particular, if you have complicated business affairs, potential liabilities, estate tax concerns, or complicated familial relationships take the time to get advise from your attorney.

What is an executor/executrix?
An executor (male)/executrix (female) is the person designated by the court to be in charge of handling your estate. You can specify this person in your will and the court will ordinarily approve. Your executor identifies and values your assets and liabilities. He, along with the court, sees to it that your debts are taken care of and that your remaining assets are distributed according to your wishes. Executors are either Dependant or Independent depending on whether or not there is a will (no will = dependant) or how designated in your will. Obviously, the executor should be somebody you trust completely and is ordinarily a spouse, parent, child or trusted friend/business associate. Depending on the size and nature of your estate, a corporate/professional trustee may be the proper person to act as executor. For most people, the designation of an independent executor is the proper course to take and is generally much less time consuming and less costly than a dependant administration. Without a will, any probate procedures will require a dependant administration.

How does Texas State Law divide my estate if I do not have a will?
1) Real Property – (real estate)
2) Personal Property – (everything else)

My father was hospitalized for a serious injury for a long period and suffered greatly. How can I avoid this happening to me?
A Medical Directive will help your family, your doctor and the hospital reach a determination of what extent medical processes should be used to keep your body physically functioning. Generally, a Medical Directive authorizes a family member(s) to express to the attending doctor and hospital your wishes to not be artificially maintained in instances where you have no chance of recovery. As a practical matter, it allows your family, the doctor and the hospital to agree when life support should be removed.

My wife and I have done our wills, but what if something happens where one of us becomes incapacitated due to injury or illness?
Generally, it is a good idea to consider executing mutual powers of attorney at the same time you do your wills. Since you did not, you should consider doing so now. Basically, a power of attorney is a document whereby you authorize someone (your spouse) to sign your name and to act for you to conduct your affairs, business or personal, in any manner they deem appropriate. This power can include the right to access bank accounts, sell real estate or cash your social security check. These powers can be limited to prohibit any specific matters that you choose. The purpose of a power of attorney in this setting is to allow the non-incapacitated spouse to continue operating your business and personal lives as smoothly as possible. Without such a power of attorney, the non-incapacitated spouse may have no choice but to go to court to take out a guardianship on you while you are incapacitated. This process is much more expensive and time consuming than the simple use of a power of attorney. The size or nature of your estate or the nature of your familial relationships may make a power of attorney not your best choice. In some cases, a trust arrangement may need to be established to properly protect your estate and to insure that your wishes are carried out.

I have a necklace that has been handed down from my great-grandmother. Can I specifically identify it in my will?
Yes. In your will, you can identify specific items of personal property (cars, jewelry, furniture, paintings, even certificates of deposit and shares of stock) as going to a specific identified individual, charity or group. This is called a bequest.

How about life insurance and bank accounts. Do those need to be identified in my will?
Yes, but that may be unnecessary and not the best method of distribution. As a general rule, life insurance proceeds and most bank accounts can be set up in such a manner as to avoid going through distribution by your will or through probate. This is possible because generally the rights to these proceeds are considered to be contractual in nature. These type proceeds can generally be set up so that upon your death the right to these proceeds goes immediately and directly to your named beneficiary, joint tenant or survivor as the case may be. Sometimes these accounts are not set up properly or you may designate your estate as the beneficiary (of a life insurance policy for example), in which case the proceeds will be distributed in accordance with your will if you have one.

Aside for cars and furnishings about all my wife and I have is our home. Do I need a will?
Yes. In fact, a will is particularly important when real estate is involved. If you have no children and die without a will (intestate) then your spouse may well inherit your interest in the home. But you may still be required to open up a full probate for your estate in order to have the fact that he/she is now the sole owner of the home properly recorded in the deed records. With a proper will, rather than filing the will for full probate your spouse will probably be able to file the will as a ‘Muniment of Title’. This procedure is considerably less expensive and time consuming than regular probate. In the event you have children, with your current spouse or otherwise, then the picture becomes much more complicated and it is very important for both spouses to prepare and sign wills.

What happens if I do not have a will. Doesn’t the state laws divide my estate?
Yes, in Texas, state law provides the manner in which your estate will be distributed upon your death if you do not have a will. The distribution mandated by state law may be fine in some instances but in most it will only cause problems that may be expensive to remedy and usually does not really reflect how you would want your estate distributed.
Duke Walker
103 S Travis St., Suite 100
Sherman, TX 75090
(903) 813-3200