ARE THERE DIFFERENT TYPES OF WILLS IN TEXAS? - Yes. Texas recognizes 3 types of Wills - Attested Wills, Holographic Wills, and Nuncupative Wills.

WHAT ARE THE REQUIREMENTS TO MAKE A VALID WILL IN TEXAS? - For an Attested Will, a Testator (the person who is making the Will), who is at least 18 years of age, married, or in the armed forces, and who has "Testimentary Capacity" (knows the extent of his estate and what he or she wants to do with it) signs the Will, expressing testamentary intent, in the presence of 2 credible witnesses who are over the age of 14 years, and each who also signs the Will in the tesatator's presence.

Holographic Will - a Testator (the person who is making the Will), who is at least 18 years of age, married, or in the armed forces, and who has "Testimentary Capacity" (knows the extent of his estate and what he or she wants to do with it) create a document, wholly in their own handwritting, expressing testamentary intent and signed by the testator.

Nuncupative Will - Oral Will created at the time of the last sickness, at the testator's home, or where he or she has resided for at least 10 days, except when the deceased is taken sick away from home and dies before he or she returns to such home; The value of the bequest must not exceed $30.00 unless the Will is proven by 3 credible witnesses that the testator called on a person to take notice or bear testimony that such is his or her Will.

WHAT HAPPENS IF A PERSON DIES WITHOUT A WILL? - If a person dies without a Will, it is referred to as dying "intestate." In such an instance, the persons etate immediately vests in the heirs at law. This causes problems at times for several reasons. First, title to property is in the name of the decedent in most instances, which may make it difficult, if not impossible for the heirs to sell. There may also exist bank accounts, common stocks and the like, which cannot be reached by heirs without opening up an administration. Lastly, since there is no Will, there may be a dispute among heirs as to the distribution of property, again necessitating a need to open an administration of the estate.

DO I NEED TO GO TO COURT TO TRANSFER TITLE TO AN AUTOMOBILE? - Not usually, unless there is a dispute over who gets the automobile. The Texas Department of Transportation has documents which can be executed to transfer title to automobiles. This of course, depends on whether a Will exists.

DO I NEED TO GO TO COURT TO TRANSFER TITLE TO REAL ESTATE? - You may. Again, it depends on whether a Will exists, and if so, who is the devisee of the property(the person getting the property). Most real estate is transferred through title companies. The title company will have certain requirements, which may include having all heirs sign off on the deed. There are too many variable that must be considered to give a complete answer.

HOW LONG DO I HAVE TO PROBATE A WILL? - The general rule is that a Will must be probatd within 4 years of the testator's death.

WHAT IS A TRUST? - A device for dividing the legal and equitable title to specific property.

WHAT IS REQUIRED TO CREATE A TRUST? - A person, known as a Settlor, either declares that he or she holds specific property, as trustee, for the benefit of another person, the beneficiary; or transfers specific property to a trustee, for the benefit of a third person, the beneficiary. This is known as a inter vivos trust. A trust can also be funded at the time of death. This is known as a testamentary trust.

WHAT IF I CREATE A TRUST AND CHANGE MY MIND? - All trusts in Texas are revokable at the will of the Settlor, unless specifically made irrevokable. There are pros and cons to this decision which should be investigated during estate planning.

HOW LONG DOES A TRUST LAST? - When a trust is created, it normally must have a definite point, at which time the Trustee liquidates the corpus of the estate and distributes the proceeds to the beneficiaries.

WHAT IS THE DIFFERENCE BETWEEN AN EXECUTOR AND AN ADMINISTRATOR? - An executor is a person named in a Will, who takes on a duty to wind up the affairs of the estate, collect the estate assets, pay the valid debts of the estate, and distribute the remainder of the estate to the devisees of the Will.

An administrator is similar to an executor, but is appointed by a judge. This occurs when a person dies intestate or has a Will and does not have an executor named, or that is willing, able, or qualified to act in that capacity.

WHAT IS THE DIFFERENCE BETWEEN A DEPENDENT AND AN INDEPENDENT ADMINISTRATION? - In a dependent administration, all actions taken by the administrator must be approved by a judge. A dependent administration, consequently, can be quite expensive.

In an independent administration, most of the day to day activities associated with winding down an estate are not monitored by the judge. The judge will only monitor the estate to the extent necessary to insure proper administration is taking place.

WHY WOULD SOMEONE WANT TO CONTEST A WILL? - A person can give their property to anyone they want. Consequently, sometimes, when a person is left out of a Will, they feel they have nothing to loose, presuming the estate is large enough to risk paying an attorney to contest the Will. An attorney, however, being bound by the Rules of Professional Conduct, should not undertake a contest unless there is a valid argument for contesting the validity of the Will.

IS THERE ANYTHING THAT CAN BE DONE TO DISCOURAGE THE CONTESTING OF A WILL? - Yes. When the Will is written, an In Terrorem clause can be placed in the Will. This clause essentially states that if any person contests this Will, they will inherit some nominal amount. This clause can, however, be one of the clauses forming the basis for the contest. How an attorney approaches such a clause depends on whose position he or she is arguing for.

WHAT IS A "LIVING WILL?" - A "Living Will," or a "Directive to Physician" is a document which instructs an attending physician not to sustain life support if the patient is in a persistive, vegetative state, and is not going to recover, even though, through technology, the doctor has the ability to maintain the heart beating and the lungs breathing. These instruments are used by many to prevent the hospital from devouring the patient's estate. Conversely, a patient could direct a doctor to keep his heart beating and lungs breathing, no matter what happens. The document was created to allow a person, to the extent possible, his or her last wish regarding how they are cared for during their last illness. This document is only good if your physician, or the hospital, is willing to recognize it. These documents are revokable at any time, by the person who executed them.

WHAT IS A DURABLE POWER OF ATTORNEY? - Most powers of attorney would end upon a person's becoming incapacitated. Durable powers of attorney survive incapacity. There are durable powers of attorney for healthcare, and durable powers of attorney for other than healthcare. The durable power of attorney for healthcare grants the power to make healthcare decisions to another person in the event of your incapacity. This document is only good if your physician, or the hospital, is willing to recognize it. It is revokable at any time. The durable power of attorney for other than healthcare, normally provides for a person to be given authority to do some act regarding your estate, e.g., pay bills, access bank accounts, sell property, etc. This document is only good if the bank, title company, etc. is willing to recognize it. It is also revokable at any time.

WHAT IS A GUARDIAN? - Guardianship is a Court-Ordered relationship whereby a person is granted power to make decision regarding either healthcare, and living arrangements, or decisions regarding a persons estate, or both.

WHEN WOULD A COURT CONSIDER APPOINTING A GUARDIAN? - Whenever a court learns that a person may need a guardian, they assign a person to investigate. If that person believes there may be a need for a guardian, the court can direct someone to apply for guardianship. If an emergency exists, the court can appoint a temporary guardian pending appointment of a permanent guardian.

WHY SHOULD A PERSON EXECUTE A DESIGNATION OF GUARDIAN? - The reason someone would want to execute such a document is to prevent a court from appointing someone guardian over you, who you do not wish to be your guardian. Some people, for example, would never want there mother, or father, or a particular sibling to be their guardian. If such a document does not exist to inform the court of your desire, the court may appoint someone you don't want as your guardian.

IF MY MENTALLY INCAPACITATED CHILD IS SOON TURNING 18 YEARS OF AGE, WHAT SHOULD I DO? - Fortunately, the legislature recently fixed a problem that had existed for many years. A family member, or anyone else, no longer has to wait until the child reaches the age of 18 years to file for guardianship of the soon to be adult. Now, application for guardianship can be filed 60 days before the child reaches the age of 18. This allows for the appointment of a guardian without having a "gap" in authority to make decisions for the child.

The Macey Law Firm, P.L.L.C.

Beaumont mailing address: (meeting with lawyer is by appointment only)

465 Blanchette
Beaumont, Texas 77701
Telephone (409) 835-7899 • Fax (409) 833-7623
Houston: (832) 647-4411
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Beaumont and Houston area divorce, child custody, criminal defense, guardianship, probate, heirship and estate administration attorney John E. Macey represents individuals and families in the Southeast Texas area in communities such as Beaumont, Port Arthur, Nederland, Port Neches, Groves, Orange, Vidor, Lumberton, Kountze, Silsbee, Evadale, Sour Lake, China, Hamshire, Fannett, Winnie, Sabine Pass and Houston.

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