Probate and Estate Matters
If you don't have a will, it is never too early to get one drafted. Even young couples with a child need a will. If nothing else you want to determine who would raise your child in the event of your death. This can be accomplished with a Will, otherwise a court may end up determining who will raise your child/children. There is a flat fee for drafting a new Will or for updating your present will. A will package can include, Power of Attorney, Durable Power of Attorney, Declaration of Guardian, and HIPPA Release (See Below).
The Law Office of Kenneth E. Newell, PLLC, offers a full range of estate planning services, beginning with the very basic will. If you are a resident of Tarrant County, Denton County, Parker County, Hood County, Ellis County, Wise County or Johnson County, Texas, contact us to arrange a consultation at our Fort Worth office. If you cannot come to our office, on special occasions we will make arrangements to come to your home or other location convenient for you and your family, including the hospital.
Power of Attorney
The Power of Attorney types are:
Declaration of Guardian
In the event that a person is rendered unable to care for themselves due either to disease, accident or birth defect they will have to be cared for by a responsible adult. A competent person may by will or written declaration appoint any eligible person to be his or her guardian of the person and of the estate. If the appointed person becomes ineligible then the duties may fall to a secondary person so named in the Declaration of Guardianship. In other words, you have an accident and cannot speak for yourself. Who would you want to take care of you and make decisions regarding your assets? If you do not take care of this beforehand you will end up with whoever the court appoints as your guardian. In cases of family arguments you could even end up a ward of the court with a stranger as your guardian.
The Health Insurance Portability and Accountability Act (HIPAA), is a Federal law that required the establishment of national standards to protect the privacy of patients’ health care information. HIPAA limits “covered entities” meaning Doctors and Hospitals, from sharing your protected health information with anyone. Covered entities also include health care providers that conduct transactions in electronic form, health care clearinghouses, and health plans.
When someone dies, they will either have a valid Will or they do not. Having a valid will at death allows your Family and those you wish to leave items/money to, called; beneficiaries and designees, to probate your will. If you do not have a will, this said to have died intestate and your heirs will be forced to have a legal proceeding called a determination of heirship. Even if a person dies with a valid will, if that will is not probated within four years of the date of death; the court considers the person to have died intestate.
Probate in Texas is relatively easy in most cases. This, of course, presumes that there are no people arguing over the will or any other subject, such as who is really related to the deceased. To handle a probate in Texas, with a properly drafted will, it is a relatively simple process to file for probate, have a very short hearing in court, and have the will admitted to probate. This can be done along with an administration (explained below) and involves minimal expense and time.
A determination of heirship, on the other hand, is more expensive and takes more time. The court will appoint an attorney ad litem to search for unknown heirs and to ensure that the documents are drafted and filed appropriately. If there are unknown or incapacitated heirs, then the attorney ad litem is required to represent them in court. This process takes considerably longer and the applicant for the determination of heirship must pay for the attorney ad litem.
An administration occurs when there is a need for the court to appoint someone to deal with the matters of the estate. This includes gathering and paying bills still owing and/or selling property and materials goods. For example, it could be required because there is a lawsuit involved or because there are items to liquidate. An administration is also helpful if the estate property needs to be managed prior to the time that it can be distributed.
An administration can be either dependent or independent. If it is independent then all that is required is to publish notice in a newspaper and file an inventory of the assets of the estate with the court. Most wills provide that the administration of the estate be independent.
A dependent administration, on the other hand, is much more complicated and expensive. It will be necessary to keep detailed records and receipts of every transaction which will later be approved by the court. Also every major transaction will have to be approved by the court. For example it takes three different court actions to sell real estate. The cost of a dependent administration can increase substantially very quickly. At the end of a dependent administration the estate needs to be closed out with the court and every transaction needs to be balanced to the last penny. The general rule is that if there is no will there will be a dependent administration. However if 100 percent of the heirs can agree to make it an independent administration assuming the court agrees with them.
There are a few ways to provide for the distribution of real estate to a person's heirs without going through the formal processes described above. Probating the will as a Muniment Of Title allows you to simply file the will to put it on record and obtain a court order to the effect that is the valid will of the decedent. Typically this is done when there is property with a clear deed; and there are no debts of the estate and no personal property. In other words, there is nothing that requires the appointment of an administrator.
"Affidavit of Heirship" is filed with the court to prove who all is entitled to a share from the estate. This may require an independent ancestry search.
The personal representative of an estate is called an executor if they were named in a will. Or they are referred to as an administrator is there is no will. The personal representative, whether executor or administrator, is referred to as a "fiduciary." A fiduciary has a heightened responsibility to the estate and must put the estate's interests above their own interests. That generally means that it is unwise for the administrator to allow the estate to deal with the administrator's own property. Full disclosure is required and exemplary bookkeeping is necessary in order to be able to provide records of what has been done. Failure to properly serve as a fiduciary can lead to being removed as the personal representative of the estate.