23501 Cinco Ranch Blvd., Suite H205 Katy, Texas 77494 Telephone: 888-238-8557
Voted Houston's Top Family Lawyers and Lawyers for the People

Adams Law Firm will fight for your family.

  • Have you tried everything and finally reached the conclusion that your marriage cannot be fixed?
  • Do you need an experienced and aggresive litigator to fight for you in court?
  • Do you need a knowledgeable counselor to calm you down, explain your rights, and help you make smart decisions for your family?
  • Do you need a pragmatic advocate to guide you through the process and resolve any differences without spending your children?s inheritance?
  • Is your son or daughter in trouble with the criminal justice system and in need of help?
  • Do you need specific advice on a will or probate matter?
  • Then you have come to the right place.

FAQs

Family Law FAQs

Juvenile Law FAQs

Criminal Defense FAQs

Will, Estate and Probate FAQs

    Wills

    Guardianship

    Trusts

    Directive to physicians (living will)

    Durable power of attorney for healthcare

    Durable general power of attorney

    Probate and estate administration

Family Law FAQs

When can I file for a divorce in Texas? One of the spouses must have resided in Texas for 6 months prior to filing and 90 days prior to filing in the county where the divorce is filed. In addition, there is a 60-day waiting period after filing before a divorce will be granted. [Texas Codes Annotated; Family Code, Chapter 6.301].

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What are the grounds for divorce in Texas? Texas is a no fault state. That means that your divorce will be granted upon a showing that (1) The marriage has become insupportable because of discord or conflict of personalities that has destroyed the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation or (2) living separate and apart without cohabitation for 3 years. [Texas Codes Annotated; Family Code, Chapters 6.001 and 6.006].General: (1) Adultery; (2) abandonment; (3) confinement for incurable insanity for 3 years; (4) conviction of a felony and imprisonment for over 1 year; and (5) cruel and inhuman treatment. [Texas Codes Annotated; Family Code, Chapters 6.001 to 6.007].

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Do I have to mediate? It is the official policy of the state of Texas to promote amicable and non-judicial settlements of issues regarding children and families. Upon written agreement of the spouses or the court's own decision, the court may refer the divorce proceeding to mediation. The mediated settlement of the case is binding if it is signed by the spouses, any attorneys of the spouses, and provides that the agreement is not subject to revocation. In addition, upon request, the court can order both spouses to consult a marriage counselor. If the counselor's report indicates a reasonable expectation of reconciliation, the court can order further counseling for up to 60 additional days. Upon every filing for divorce, the court clerk is required to furnish a statement to the person filing regarding the availability of marital counseling services. In addition, if there has been a history of conflict and difficulties in resolving questions of access to any children, the court may order either parent to participate in counseling. [Texas Codes Annotated; Family Code, Chapters 5-102.0085, 5-153.010, 6.505, and 6.602].

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How will our property be divided? Texas is a community property state. The spouse's separate property, consisting of: (1) any property owned prior to the marriage; (2) any property acquired during the marriage by gift or inheritance; and (3) any recovery for personal injuries that occurred during the marriage, will be retained by the spouse who owns it. The community property, consisting of any other property acquired by either spouse during the marriage, will be divided equally, unless the court finds that equal division would be unjust. In addition, the court may divide property acquired by either spouse while residing outside of Texas that would have been community property if they had acquired it while residing in Texas. The only factors for consideration specified in the statute are a due regard for the rights of each party and any children. Any property possessed by either spouse during the marriage is presumed to be community property unless it can be shown that the property is actually separate property. A court can determine the rights of the spouses in any pension or retirement plan or their rights under any insurance policy. [Texas Codes Annotated; Family Code, Chapters 7.001 to 7.006].

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Does Texas allow alimony? The court may award maintenance (also called spousal support) for a spouse only if: (1) the spouse from whom maintenance is requested has been convicted of family violence within 2 years before the suit for dissolution or (2) the duration of the marriage was 10 years or longer and the spouse seeking maintenance: [a] lacks sufficient property to provide for his or her reasonable minimum needs; [b] is unable to support himself or herself through employment because of an incapacitating physical or mental disability; [c] is the custodian of a child who requires substantial care and supervision because of a physical or mental disability which makes it necessary that the spouse not be employed outside the home; or [d] clearly lacks earning ability in the labor market adequate to provide for the spouse's minimum reasonable needs. If the court determines that a spouse is eligible for maintenance, the following factors are then considered in the award: (1) the financial resources of the spouse seeking maintenance, including both separate and community property and liabilities; (2) the spouse's ability to meet his or her needs independently; (3) the education and employment skills of the spouses; (4) the time necessary for the supported spouse to acquire sufficient training or education to enable him or her to find employment; (5) the availability and feasibility of that training; (6) the duration of the marriage; (7) the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance; (8) the ability of the supporting spouse to meet their own needs and make any child support payments; (9) excessive or abnormal expenditures, concealment, or destruction of any property by either spouse; (10) the comparative financial resources of the spouses, including medical, retirement, insurance, or other benefits, and any separate property; (11) the contribution of 1 spouse to the education, training, or increased earning power of the other spouse; (12) the contribution of either spouse as homemaker; (13) any marital misconduct of the spouse seeking maintenance; (14) the efforts of the spouse seeking maintenance to seek employment counseling; and (15) any property brought to the marriage. The amount of monthly maintenance can be no more than the lower of $2,500 or 20 percent of the paying spouse's monthly gross income. [Texas Codes Annotated; Family Code, Chapters 8.001 to 8.055].

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Who will get custody of the children? Joint or sole managing conservatorship (custody) is determined according to the best interests of the child. The sex of the parents is not a factor for consideration. The wishes of the child may be considered. The factors to be considered in determining the terms and conditions for possession of a child by the possessory conservator (parent with visitation) are as follows: (1) the age, circumstances, needs, and best interests of the child; (2) the circumstances of the parents; (3) evidence of any spouse or child abuse; and (4) any other relevant factor. The factors specified in the statute for consideration in decisions regarding joint managing conservatorship are: (1) whether the physical, psychological, or emotional needs and development of the child will benefit; (2) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interests; (3) whether each parent can encourage and accept a positive relationship between the child and the other parent; (4) whether both parents participated in child rearing before the filing of the suit; (5) the geographical proximity of the homes of the parents; (6) if the child is 12 years old or older, the preference of the child; and (7) any other relevant factor. The court may not award joint managing conservatorship is there is any credible evidence of spousal or child abuse or neglect. Parents may file a written agreement with the court regarding joint managing conservatorship. The court will award joint managing conservatorship based on an agreement between the parents if the agreement: (1) establishes the county of residence of the child; (2) states the rights and duties of each parent regarding the child's present and future care, support, and education; (3) includes provisions to minimize disruption of the child's schooling, daily routine, and association with friends; (4) was entered into voluntarily and knowingly; and (5) is in the best interests of the child. In addition, there are standard terms for a court's order on a child's conservatorship set out in the statute that are presumed to be the minimum allowable time that the parent who is not awarded the primary physical residence of the child is to have the child. [Texas Codes Annotated; Family Code, Chapters 5-153.004 to 153.434].

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How much child support will be awarded? Either or both parents may be ordered to make periodic, lump sum, or both types of child support payments. There are official child support guidelines set out in the statute and these are presumed to be reasonable and in the best interests of the child. The factors for consideration are: (1) the age and needs of the child; (2) the ability of the parents to contribute to the support of the child; (3) any financial resources available for the support of the child; (4) the amount of possession and access to the child; (5) the net resources of the parent to pay support, including the earning potential of the parent to pay support if the actual income of that parent is significantly less than what that parent could earn, if intentionally unemployed or underemployed; (6) any childcare expenses necessary for the employment of either parent; (7) whether a parent has custody of another child and any child support expenses being paid or received for the care of another child; (8) the amount of alimony being currently paid or received; (9) provisions for healthcare; (10) any educational or healthcare needs of the child, including college expenses; (11) any benefits a parent receives from an employer; (12) any debts or obligations of a parent; (13) any wage or salary deductions of the parents; (14) the cost of traveling to visit the child; (15) any positive or negative cash flow from any assets, including a business or investments; (16) any provisions for healthcare or insurance; (17) any special or extraordinary educational, healthcare, or other expenses of the parents or the child; (18) whether either parent has a car or housing furnished by an employer or other person or business; and (19) any other relevant factor. The court may order health insurance coverage to be provided for the child. In addition, the court may order income withholding to secure the payment of child support. [Texas Codes Annotated; Family Code, Chapters 154.001 to 154.309].

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What happens if one of the parents’ financial situation changes? The court can modify the amount of child support at any time if one parent experiences a substantial change in circumstances. The court will determine if a change of circumstances has occurred and, if it has, the appropriate new amount of support.

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How much does it cost to get a divorce? The cost of a divorce is determined by the complexity of the individual case. The more issues in dispute and the more complex the case, the higher the cost. At the Adams Law Firm, we strive to resolve your divorce in the most efficient and cost-effective manner possible.

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What is Legal Separation? Legal separation is a circumstance where the parties have decided for a variety of reasons, to live separately. A legal separation offers many of the same benefits and protections as divorce, such as child custody agreements and support, spousal maintenance and debt division. A legal separation may be advisable if the parties are not certain they want a divorce or there are extensive financial or property issues that need to be resolved.

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What is a pre-nuptial agreement? A pre-nuptial agreement is a contract between prospective spouses settling alimony and/or property rights of parties upon divorce. A pre-nuptial agreement may also include provisions concerning distribution of a decedent spouse's property.

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Juvenile Law FAQs

Who is under the jurisdiction of the juvenile courts? A juvenile offender who is between 10 and 17 years old or someone who is under the age of 18 and is alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before reaching the age of 17.

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What is delinquent conduct by a juvenile? Delinquent conduct is conduct that violates Texas or the United States law and is punishable by a prison or jail term, or conduct that violates a municipal or justice court order under that would constitute contempt of court.

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What is the Texas Youth Commission (TYC)? The Texas Youth Commission is a state agency that is in charge of providing for the care, custody, rehabilitation and re-establishment in society of juveniles who are committed by the courts for having engaged in "delinquent conduct.” The TYC operates institutional and community-based residential programs and provides supervision for juveniles when they are released back into the community.

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How is a juvenile committed to the Texas Youth Commission (TYC)? A juvenile can be committed to the Texas Youth Commission if: (1) the child is adjudicated for a felony offense or violates probation for a felony offense; (2) the child is adjudicated for a third misdemeanor offense or violates probation on the second misdemeanor adjudication; and (3) the child has been adjudicated for a misdemeanor offense and has previously been adjudicated for any felony offense. All commitments to the TYC, except under the "Determinate Sentence Act" are for an intermediate term not to extend beyond the child's 21st birthday.

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What is the "Automatic Restriction Access to Juvenile Records System"? The Juvenile Restricted Access Record System limits access to a juvenile's records after the juvenile reaches the age of 21, if he or she does not commit any criminal offenses after reaching 17 years of age. A person whose juvenile records are placed on restricted access is not required to disclose the arrest, prosecution or results as an adult. The only people who can get access to restricted juvenile records are criminal justice representatives with a purpose related to criminal justice. Employers, schools and others are denied access to restricted records.

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Criminal Defense FAQS

What is the Miranda warning? In 1966, the United States Supreme Court ruled in the case of Miranda v. Arizona that warning must be given to suspects to avoid violations of Fifth Amendment rights of self-incrimination. While no exact wording must be used, the Supreme Court ruling stated:

“...The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says may be used against that person in court; the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent him or her.”

Law enforcement officials must give a Miranda warning to criminal suspects in police custody or under detainment before being questioned about the commission of a crime.

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Are the police obligated to read me my rights if they want to speak with me? Not necessarily. The police officer must read a suspect his or her rights when trying to get a statement or confession. Asking your name, address, and information to determine your identity does not require that an officer inform you of your rights, according to a Supreme Court ruling in 2004. When questions go beyond identification, and address you as a suspect, the officer must provide a Miranda warning.

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What is unlawful search and seizure? Unlawful search and seizure is a violation of the Fourth Amendment, which protects rights against search and seizure without a valid search warrant based on probable cause. If a law enforcement officer appears at your door and asks to search your home, you have the right to see the warrant authorizing the search. In most circumstances, if there is no warrant, the search may only occur if the person consents to it. Numerous court rulings define and determine what constitutes an illegal search and seizure.

Authorities may search without a warrant in the following types of situations:

  • When someone consents to a search
  • In hot pursuit of a criminal
  • If someone is in danger and there is reasonable cause to enter a house, building, or vehicle to protect the person
  • When a police officer is at risk
  • During lawful arrest
  • When illegal evidence is in plain view in a location where law enforcement is authorized to be
  • During temporary questioning

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How do I know if I have been detained or arrested? When a law enforcement officer temporarily stops you to inquire about your activity or presence in a particular location or to request identification, you are being detained. Patting you down to determine whether you are carrying weapons can be part of detainment.

If you have been arrested, you are not free to leave, and may be further questioned, at which time the officer would read you the Miranda warning. However, you could be arrested without being given a Miranda warning, which is only necessary under circumstances of interrogation.

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What is the difference between procedural and substantive law? Procedural law refers to the process and rules under which courts hear and determine cases based on the application of due process. Due process refers to Constitutional rights, such as the right to information, the right to a trial by peers, the right to cross-examine witnesses, and so on.

Substantive law deals with the substance of the case, such as how the crime will be charged, the definition of crimes and penalties, along with civil rights and responsibilities.

Procedural law provides the method or process by which substantive laws are administered.

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Will, Estate, and Probate FAQs

Wills

How often do I need to update my Will? Your Will should be reviewed by a licensed attorney and updated any time that there has been a significant change in your personal life or financial situation. A significant change may be the death of a beneficiary, marriage, divorce, or if you move to a different state. In any event, you should have your attorney review your Will at least every five years to ensure that it is consistent with current laws.

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Can I write my own Will? Yes, but you are strongly urged not to do so. There are so many legal formalities involved in drafting your Will that you should contact an attorney to ensure that your Will is properly drafted and executed.

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What is an executor? An executor is a person appointed in your Will who is responsible for carrying out the terms of your Will. Alternate executors should also be named in your Will in the event that the primary executor named is unwilling or unable to serve.

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What property can I dispose of in my Will? Your Will disposes of all of your separate property and one-half of the community property that was acquired by you and your spouse during marriage. Your Will does not dispose of your spouse's separate property or your spouse's one-half interest in the community property.

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How is my property distributed if there is no Will? Texas law will determine how your property is distributed without a Will.

Distribution may depend on marital status, whether there are children from a former marriage, the type(s) of property that you own at the time of death, and other factors that may be particular to your case. If a person dies without a Will, then the heirs and their respective share of the estate are determined in an heirship determination proceeding. In this proceeding, the probate court will appoint an attorney ad litem to represent the interests of any known heirs that cannot be located, any unknown heirs, and those heirs that may be suffering from legal disability. For a simple proceeding, the ad litem fees alone may be $300 to $500.

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Is all of my property controlled by my Will? No. There are certain assets, called non-probate assets, that fall outside of your Will. These may include life insurance proceeds, retirement benefits and certain bank accounts. These non-probate assets are payable to the beneficiary listed on the account. The terms of the Will cannot override the designated beneficiary.

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Why will my stepchildren get half if my spouse dies without a Will? Because Texas laws of intestate succession (defining what happens when you die without a Will) state that one-half of certain of the dying spouse's assets pass immediately to the natural children of a spouse who dies without a Will, while married to someone who is not those children's biological parent.

Once Your Will and/or Trust is Signed:

Q.    Where is the best place to keep my signed original estate planning documents?

A.    The best place is probably in a safe deposit box because it will protect the documents from theft, fire, accidental loss, and most other types of damage or harm.  A potential problem, though, is getting it opened after your death.

If you decide to keep your estate planning documents in a safe deposit box, consider naming a family member or your Executor or trustee as a joint holder on the box.  That should simplify matters following your death because someone will be able to get into the box without delay. Also, if you live in a flood zone, be sure to put the document in a water-tight plastic bag.  As many shocked clients have learned, water damage caused by flooding can ruin the contents of a safe deposit box.

Another place to keep your original estate planning documents is with the attorney who drafted them.  However, I have decided not to retain original documents because of concern over theft, fire, flood, storms, or other loss of the document.  It would also be prohibitively expensive to store hundreds or thousands of original documents.  Also, what would happen if I were to die or my lawfirm were to cease operations?

Many people keep their original estate planning documents at home in a secure place.  If you have a safe at home, that can be a good place to keep them.  Be aware though, when thieves enter your home and discover a locked safe, they often take the whole safe thinking they'll find cash and jewelry.  The last thing they want is a file containing your estate planning documents, but that's one of the things they'll get if you keep them in your safe.  Therefore, unless your safe is bolted to the foundation of your house, it may not be the best place to keep your originals.

Another option with regard to a Will is to deposit it with the county clerk's office.  Taking this approach can be a great idea, except that you need to be sure your records at home clearly indicate where the original can be found.  Moving to a different county or changing your Will can cause problems as well.

More people than you would expect keep original Wills and other estate planning documents in an air-tight plastic bag at the bottom of their freezers.  Freezers are well insulated and heavy, and have a way of withstanding fires, hurricanes, and tornadoes. Also, they don't die or move away, and they are stolen far less frequently than in-home safes.

Q.    If someone's Will is in a safe deposit box at a bank when he or she dies, how do you get access to it?

A.    There are three ways to get the Will out of the box.

The easiest way is if another person is named as a joint holder of the box.  That person can retrieve the Will with no problems or delays.

If no other person has access to the box, Texas law allows a spouse, child, grandchild or the Executor named in the Will to examine the contents of the box while in the presence of a bank employee.  If a Will is found, the bank will be required to send it to the court.  Note, though, some banks will give it to your lawyer and allow that lawyer to file it with the court.

Another option is to go to court to request that a judge order an examination of the box.  If a Will is found, it will be sent to the court.  This should be the option of last resort because it takes longer, requires the filing of papers with the court, and usually involves a lawyer and the associated legal fees.

Q.    Should I give copies of my Will and other estate planning documents to my children and to the Executors of my estate?

A.    For some people, their estate planning documents are as private as their income tax returns, and nobody is ever given copies.  For other people, estate planning documents are no different than a spare key to the house, and every family member and Executor and/or trustee named in the documents is given a copy.

If you are the type of person who values your privacy, who does not especially trust your children, Executor, or trustee, or if you have written a Will or trust which does not treat all the children equally, then it may not be a good idea to hand out copies.  Also, you may have more money than your children expect, and depending on how your Will or trust is written, giving them a copy may be letting them know too much about your personal business.

On the other hand, if you have a fairly open relationship with all your children, you regularly discuss finances with them, and you are leaving your estate to them in equal shares, then go ahead and give everyone a copy.  Of course, if you decide to change your Will or revocable trust, you should be sure to give all the same people copies of the new documents.  If you don't, then there may be some arguments following your death over which document controls the disposition of your estate.

Q.    I have a Will and I want to make a minor change. Is there a way for me to make the change myself without hiring a lawyer?

A.    Yes, there are a few ways.  One way is to make the change yourself by writing an amendment to your Will (called a "codicil") entirely in your own handwriting.  You should be sure to date and sign the new document and clearly state which section of your Will you are modifying.  When you write a codicil by hand, no witnesses or notary are required.  You could also type the codicil, but if you do, you will need two witnesses to the signing.

Of course, if the change is important and you want to be sure it's done right, you should not try to make the change yourself, but instead you should hire a lawyer to prepare a codicil for you.

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Guardianship Questions:

Q.    If my husband and I die together, where would our children live for the first day or week or month until a judge can determine who will be their guardian? What if there are relatives we absolutely don't want them to live with, even temporarily?

A.    There is no simple answer to your question because where your children would live depends on when you die and where your children are when you die.

For instance, you and your husband may be with your children when you both die, thereby leaving them without immediate supervision.  Or your children may be at day care, at school, or with a babysitter, and that means the supervision they are receiving would soon be coming to an end.  In these types of situations, it is likely that the police will show up and take charge.

The police would allow your children to be placed in the care of a relative or friend as long as they are convinced that person is not unfit to care for the children.  The police can use the computer in their car to obtain this type of information.  For instance, a relative who has a criminal record would probably not be allowed to take the children.

If your children are old enough to tell the police who to call, the police would likely do so and attempt to leave the children with the proper party.  But if your children are too young to know phone numbers, addresses, or even complete names, or if no temporary guardian is available, then the police would take your children to Child Protective Services (CPS).

CPS would care for your children until a suitable family member or friend is located.  CPS may place your children in foster care, if necessary, until a judge determines who the permanent guardian will be.

It may be the case that your children are already in the care of a relative or close friend when you both die.  In such a situation, the police and CPS may never get involved with the care of the children.  Instead, the children would most likely remain with that family until a judge makes a determination as to permanent guardianship.

You mentioned that there may be relatives you don't want your children to live with, even for a brief period.  The problem is that if the police don't know how you feel, and if the relative otherwise checks out, the children may be placed in that person's temporary care.  Unfortunately, it is too often the case that relatives want to control the children's inheritance, and they know funds will be available if they are acting as guardians.

You could prepare a witnessed and notarized document stating your intention regarding who you do and do not want to serve as guardian.  In fact, that information is often contained in a person's Will.  But the problem is that this document will probably not be available when it's needed.  Most people don't think to send their kids to school, daycare, or a friend's house with a copy of their Will or other legal documents, and even if they did, the police may not be inclined to rely on the document's validity.

If the police show up and several relatives or friends demand to take care of the children, the police will most likely not make a choice between them, but will instead deliver the children to CPS.  An investigation will then be conducted by CPS to determine who is most suitable to take care of the children until a guardian is formally named by the court.

You should be sure to state in your Will who you want to serve as the guardian of your children in the event you and your husband pass away before your children are legal adults--age 18 in Texas.  You can name any person you want, and you can also provide a list of persons in order of preference.  You can even name two persons to serve, but they must be married to each other.

Please note the answer to your question may be different if you don't live in a large Texas city.

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Gifts:

Q.    What gifts can I make without having to pay gift taxes?

A.    Every year, you can give any person you want as much as $13,000 without any gift tax consequences.  This dollar amount is known as the annual exclusion, and it is now indexed for inflation.  It will be increasing from time to time in $1,000 increments.

If you are married, the amount you can give to each person doubles to $26,000 since the person receiving the gift can receive $13,000 from each spouse.  Gifts can be in the form of cash, stocks, bonds, real estate, or anything else of value.  Buying real estate or bonds in the names of one or more other persons is the same as making a gift of that property to them.  The value of the gift would be the amount of money you spent to buy the property or the bond.

You can also make tuition payments for any person you choose, and these payments do not count toward the $13,000 annual limit.  Payments you make for medical expenses don't count against the $13,000 limit either.  However, if you make a tuition or medical payment, be sure to pay the school, hospital or doctor directly, as a check made payable to a person which is used for tuition or medical care counts towards the $13,000 annual limit.

If you want to give more than $13,000 to any one person, to the extent your gifts exceed $13,000, you will use up a portion of your $1,000,000 lifetime exemption.  This is the amount each person can give away without having to pay gift or estate taxes.  By way of example, if you give one of your children $45,000 this year, you can exclude the first $13,000 under the annual exclusion, and the other $32,000 will leave you with a remaining lifetime exemption of $967,000.

Keep in mind that if the gifts to any person exceed $13,000 during a single calendar year, you will be required to file a gift tax return by April 15th of the following year to report the gift.  That is how the IRS keeps track of how much of your $1,000,000 lifetime exemption is still available.  Once you have given away more than the $1,000,000 lifetime limit, you must start paying gift taxes.  The estate and gift tax rate is presently 45%.

Before making large gifts, it is often a good idea to talk to an estate planning attorney.  Once gifts are made, you can't go back and do things a better way.  For instance, if you are planning to make really large gifts, then it may be wise to create trusts for the benefit of your children.  There are a number of important advantages to creating trusts, with few downsides.

Q.    What exactly are 529 accounts, and are they really as good as everyone seems to think?

A.    Yes, 529 accounts are that good.  In fact, they are one of the best ways--and many people think they are the best way--to save for a child's education.

You have a number of options when it comes to saving for college.  There are Uniform Transfers to Minors Accounts, education IRAs, and prepaid tuition plans, to name a few.  All the options have their advantages, yet 529 accounts seem to combine the best features of all of them to make a fairly good investment vehicle.

The main advantage is that the earnings and most withdrawals are income tax free.  Even though you must use after-tax money to create the accounts, all capital gains, dividends, and interest are generally tax free.  Withdrawals are subject to income taxes only when they are not used for tuition, room, board, and other authorized expenses.

Another advantage is that gifts to a 529 account not only qualify for the $13,000 annual gift tax exclusion, but you can even make five years worth of gifts today and elect to treat them as being made equally over a five year period.  In other words, if a married couple with four grandchildren can give as much as $130,000 to each grandchild right now, for a total of $520,000 to the four grandchildren.  Each grandchild will be treated as receiving $26,000 per year for five years.

As far as estate taxes are concerned, all amounts you contribute to the account will be excluded from your estate even though you are the person controlling the account.  However, you should note that if you elect to spread your contributions over five years for gift tax purposes, and you die within that five year period, a portion of the gift will be included in your gross estate.

You can also designate a successor to yourself to control the account should you die before a grandchild goes to college.

There are a few downsides worth noting.  Unlike some of the other alternatives available for saving for college, 529 accounts don't let you choose the investments yourself.  All you can pick is the type of investment portfolio the account will maintain.  Also, if you use funds in the account for non-qualified purposes, a 10% penalty will apply to the portion of the withdrawal which constitutes investment gains.  Importantly, as well, some of the tax laws which make 529 accounts so great may expire in 2011 if Congress fails to extend the new tax laws, and other key benefits can always be changed during a future session of Congress.

Overall, 529 accounts present you with an unbeatable combination of features.  The accounts offer income tax free growth and withdrawals with no gift taxes, no estate taxes, retained control of the funds, and flexibility in the future should circumstances change.  The only real problem with 529 accounts is coming up with the cash needed to maximize your gifts to the accounts.

I recommend calling your broker or financial planner for details on how to set up the 529 accounts.

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Revocable and Irrevocable Trust Questions:

Q.     For whom are living trusts most appropriate?  What are the pros and cons?

A.    For starters, while it is true that probate can be expensive and time-consuming in some other states, in Texas, we have a streamlined system of probate.  As long as you hire a lawyer with experience in probate court, you have a well-written Will, and nobody files a lawsuit after your death, then probate is typically not so bad.

Stories you read in the paper may lead you to believe otherwise.  The heirs of multi-million dollar estates frequently fight it out in court for a larger inheritance.  Also, bookstores carry dozens of books which talk at length about the delays and high costs associated with probate.

Even so, living trusts are useful estate planning tools, and they do have their place in many people's estate plans.  If you find any one of the following benefits appealing, then a living trust may be appropriate for you.

Benefit #1:  No Court Involvement.  When a person dies, most properties pass either under a person's Will or under a living trust.  Some properties--such as life insurance, IRAs, and certain types of bank and brokerage accounts--pass directly to named beneficiaries.  If property passes under a Will, then the Will must be probated at the courthouse.  Probate typically entails hiring a lawyer, filing a number of papers with the court, attending one or more hearings, and providing a written inventory to the court valuing the properties which passed under the Will.

Some people don't want this type of involvement with the court, so they opt for a living trust.  By transferring all properties which would otherwise pass under your Will to a living trust, you can avoid the court entirely.  For estates which don't owe estate taxes, there is usually less work for the lawyers, and that translates into reduced estate administration costs.

Benefit #2:  Privacy.  As mentioned above, when a person dies with a Will, an inventory must be filed with the court.  You may not want your friends, neighbors, or the media to be able to read a listing of what you own and what it is worth.  After all, an inventory is a public record.  With a living trust, your properties and their values are all kept private.

Benefit #3: Plan For Future Incapacity.  You may be worried that one day you won't be able to manage your own finances, and you may want to name someone to handle these types of matters for you.  You can address this potential problem with a power of attorney or with a living trust.  A power of attorney will usually be accepted by banks, title companies and the like, but there is always the risk that an institution's legal department will reject it.  The same person who may be denied the ability to use a power of attorney will likely be allowed to do anything he or she wants when acting as trustee of a living trust.

Benefit #4: Harder to Challenge.  If you are planning to disinherit one of your children or grandchildren, you may be better off with a living trust because there is nothing filed at the courthouse.  Also, it is a little harder to contest a living trust than a Will.  Many people are interested in doing as much as possible to prevent a successful challenge to their estate plan.

Benefit #5: Avoid Out-of-state Probate.  If you own property in another state, you can avoid a costly probate proceeding in that state by transferring the property to a living trust.

Before you establish a living trust you need to understand the downsides, which include the following:

Disadvantage #1:  Time-consuming to Set Up.  Depending on how many different types of properties and accounts you own, it can take quite some time to switch everything over to the name of your living trust.  Also, some financial institutions in Texas are not geared up to handle living trusts, so you can expect a little trouble and frustration in getting the trust fully established.

Disadvantage #2:  Complicated.  Wills are usually shorter and simpler to understand than living trusts.  Also, with a Will, you can sign it and forget about it.  But with a living trust, you need to put your property into the trust and run your life out of it for as long as you live.  For many people, this downside outweighs all the potential benefits.

Disadvantage #3:  Time-consuming to Revoke.  A year after you set up the living trust, you may decide you don't want it any more.  At this point, you will need to return to every bank and brokerage house, and undo everything you had done to establish the trust.  You can expect more lawyers' fees too.

Disadvantage #4: Post-Death Costs Not Eliminated.  If you have a taxable estate (which is generally an estate over $3,500,000), there will be a lot of work to be done after death regardless of whether probate is required.  Typically, there are tax returns to file, trusts to establish, assets to value, and more.  Avoiding probate will only marginally reduce the cost of administering a taxable estate.

Disadvantage #5:  May Still Need to Probate Will.  If you leave just one bank account or one piece of real estate out of the trust, probate will still be necessary.  And probate takes about as long when there is one asset as when there are twenty.

Q.    What is the difference between a Living Trust and a Bypass Trust?

A.    A Living Trust is a revocable trust created while a person is alive, whereas a Bypass Trust is typically an irrevocable trust created at death.  A Bypass Trust can be created by a Living Trust or by a Will. (Yes, a Living Trust can create a Bypass Trust, but a Bypass Trust would never create a Living Trust.)

A Living Trust is simply an ownership arrangement where property is held in the name of a "trustee" rather than in the name of the person who really owns the property.  People almost always create Living Trusts for their own benefit, with the goals of avoiding probate, addressing the possibility of future incapacity, and keeping matters private.

Normally, the person who creates a Living Trust names himself or herself as trustee and as beneficiary.  Upon that person's death, all or a portion of the property which remains in the Living Trust passes according to the terms specified in the trust agreement.

Bypass Trusts are most often created when a husband or wife dies in order to save taxes when the other spouse passes away.  When a married person dies and leaves everything to his or her spouse, that surviving spouse may then be too wealthy to pass everything to their beneficiaries tax free.  Being "too wealthy" means the married couple is worth over $3,500,000.  The Bypass Trust is a way to shelter the first spouse's $3,500,000 exemption from taxation when the surviving spouse dies, thereby doubling the amount that can be left tax-free to $7,000,000.

Bypass Trusts do have non-tax benefits though, and for some people, saving taxes is not the motivating factor in creating one.  For instance, Bypass Trusts protect the trust property from creditors' claims, and they allow the deceased spouse to direct where the trust property passes when the other spouse dies.

There are some exceptions to the statements contained in this answer.  For instance, Bypass Trusts are not always created at death. Some wealthy people create them during life, and other people use their estate tax exemptions for different purposes rather than the creation of a Bypass Trust.  Also, in answering your question, I have assumed that when you said "Living Trust," you meant the standard type of revocable trust people across the country regularly create and not another unusual type of trust which may be created while someone is living.

Q.     What is a Miller Trust, and how does it work?

A.    A Miller Trust is a written trust agreement which makes it possible for people to obtain Medicaid nursing home coverage even though they actually make too much money to qualify for Medicaid.  Importantly, they are not actually called Miller Trusts anymore.  Instead, they now go by the name Qualified Income Trusts.

The rule in Texas is that you must have both limited resources and limited income in order to qualify for Medicaid coverage.  These are two distinct tests that must be met, and if you don't satisfy both of them, then Medicaid nursing home coverage will not be available.

The first of the two requirements--that you must have limited resources--has nothing to do with Qualified Income Trusts.  Basically, if you have more than $2,000 worth of assets, you are too wealthy to qualify for Medicaid no matter how little money you earn.

Cash, stocks, bonds, retirement accounts, non-homestead real estate, and other investments are included in the $2,000 figure, but your homestead (no matter how much it is worth), $2,000 of personal property, a burial plot, a small amount of life insurance, and a car are generally not counted.

People with more than $2,000 can give away properties or convert them into properties which are not counted.  However, depending on the date of the transfer, there may be a 36 month or 60 month look-back period.  The look back period is a way to keep you from giving away all your property and then applying for Medicaid the next day.  For transfers made prior to February 8, 2006, the 36 month look-back period continues to apply unless the transfer was made to a trust, in which case the longer 60 month look-back applies.  For transfers on or after February 8, 2006, a 60 month look-back applies to all transfers.

Also, there are rules which generally allow the spouse of someone trying to qualify for Medicaid to retain about $2,739.00 worth of property.  A spouse's property is not counted when determining the total value of assets for the $2,000 resources test.

The second of the two requirements--that you can earn no more than a certain dollar amount of income per month--is where Qualified Income Trusts enter the picture.  Under current law, the monthly dollar limit is $2,022.  People who earn more can't qualify for Medicaid unless they have a Qualified Income Trust.

What you do is assign your income to the Qualified Income Trust, and the wording of the trust limits how much of the income can be distributed.  This way, a person who makes more than the monthly limit will be treated as earning less than that amount, thereby satisfying the Medicaid income test.  The trust can allow for certain payments, including insurance premium payments, other payments to support a spouse, and $60 each month for the beneficiary's personal needs.

Money remaining in the trust after those payments are made must be paid to the nursing home for the beneficiary's care, with Medicaid picking up the balance.  With Qualified Income Trusts, people can get the government to cover the portion of the nursing home costs that they can't afford.

Lawyers prepare Qualified Income Trusts.  Therefore, everyone who needs one must first meet with a lawyer to discuss the specifics of the trust and all the other planning that goes with it.

To learn more about Qualified Income Trusts, search the internet for the words "Texas qualified income trust."  You can also call the Texas Department of Human Services at 888-834-7406 or visit their website at www.dads.state.tx.us.  They have a summary of Qualified Income Trusts, and they also publish a "Medicaid Eligibility Handbook" which contains other helpful information.

Q.    What are the tax advantages to setting up an irrevocable trust to own an insurance policy?

A.    Although life insurance is generally not subject to income taxation upon the death of the insured, it is subject to estate taxes if the insured owns the policy (or has other ownership rights).

Owning a life insurance policy results in all or a portion of the insurance proceeds being included in the insured's estate and therefore taxed when death occurs, thereby substantially defeating the purpose of buying the life insurance.

While it is true that life insurance which is received by a spouse is not subject to estate or inheritance taxes because of the unlimited marital deduction (assuming the surviving spouse is a citizen of the United States), those same proceeds will be included in the spouse's estate later on when he or she dies.  Therefore, life insurance trusts are often a good idea even when there is a surviving spouse to receive the proceeds.

Life insurance trusts offer a number of significant advantages over outright ownership.  For starters, the trust will insulate the proceeds from the claims of creditors and from spouses in a divorce.

Also, life insurance trusts can be written to last for children's lifetimes and then pass without estate taxes to additional trusts for grandchildren.  This is a feature commonly referred to by estate planning lawyers as "generation skipping planning."  Your children shouldn't be alarmed by the words "generation skipping" because you are not skipping them.  Your children can serve as trustees of their trusts, and they can be given the power to make distributions to themselves or their children according to fairly liberal standards.  Normally, trusts like the ones being described would allow your children to make distributions for their health, education, maintenance and support.  And your children would be the ones determining how much money it takes to maintain and support themselves.  Even though the life insurance proceeds will be held in a trust, your children would not be prevented from using the trust funds.

Even if Congress and the President repeal the estate tax in the next few years, people will still create trusts because trust property never becomes commingled with other property owned during a marriage (unless your children distribute the money from the trust to themselves), and the trust funds will generally be unreachable by creditors (as long as the trust property remains unincumbered inside the trust).

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Retirement Accounts and Funding a Bypass Trust:

Q.     Our entire estate except for a small checking account, and a house worth about $650,000 is in my IRA account.  My IRA is now worth about $1.6 million.  Can my IRA be used to fund a bypass trust?  What happens if we do not fund the trust and I name my wife as the beneficiary of the IRA?

A.    Yes, with proper planning, an IRA can be used to fund a bypass trust.

By way of background, bypass trusts are sometimes needed because people are allowed to leave a maximum of $3,500,000 estate tax-free at death.  While it is true that the $3,500,000 amount should be increasing over the next few years, it is also likely that your IRA will increase in value too.  At least you hope so.

If you name your wife as the beneficiary of your IRA and you give her the rest of your estate, she will immediately be worth in excess of $3,500,000 upon your death.  That dollar amount is much larger than the amount she can leave estate tax-free upon her death (assuming she dies in 2008).  If your wife dies first, you would likewise then be worth in excess of $3,500,000, and upon your death, the estate tax would be the same.  Certainly, you would like to do whatever you can to reduce or eliminate the estate tax.

That is why bypass trusts can be useful.

Rather than give your entire estate to each other, the first spouse to die would instead place as much property as possible into a bypass trust.  Typically, the surviving spouse would be in charge of the trust as trustee and would be able to distribute property as needed for health, support and maintenance.  So there is no real loss of control or access to the property in the trust.

Placing real estate, cash, stocks and bonds into a bypass trust is easy, as there are generally no tax consequences when setting up the trust.  However, the IRS has complicated and restrictive rules when it comes to IRAs.

The typical plan involves setting up your estate so that a portion of your IRA could be placed in the bypass trust following your death.  Estate taxes would be eliminated because your wife's estate would be less than the $3,500,000 threshold (in 2008) upon her death.  Even if your wife dies first, her one-half community property interest in your IRA can be sheltered within the bypass trust created in her Will, thereby saving estate taxes upon your subsequent death.

Getting the IRA into the bypass trust does have a few downsides.

Number One: In your quest to save estate taxes, your wife may get stuck paying extra income taxes.  For instance, if you die first and your IRA is paid to the bypass trust, your wife may not be able to roll the entire IRA over to her own new IRA and defer income taxes until she reaches age 70 ½.  Instead, with the bypass trust named as the beneficiary, distributions may need to start soon after your death, and then continue over your wife's life expectancy.  If your wife is 55 years old upon your death, that means she may need to start taking distributions 15 years earlier than if she had opted for the IRA rollover.

Number Two: Your wife may not be able to name your children as beneficiaries and thereby extend the income tax deferral for their lifetimes.  This option would be available if she rolled your IRA over to her own IRA.

Number Three: You may not completely eliminate estate taxes.  The reason stems from the fact that you have never paid income taxes on your IRA.  When the IRA is owned by a bypass trust, each time a distribution is made to the trust, income taxes must be paid.  If the IRA distribution is left in the bypass trust, the tax rate will generally be equal to the highest marginal income tax bracket (currently 35%).  Your wife can avoid this high rate of tax by giving the IRA distributions to herself (which is allowable, and possibly even required depending on the terms of your Will or revocable trust, as she controls how much she can get from the trust).  When the distributions end up in her hands, rather than the trust paying a high income tax, she pays income taxes at her own income tax rate, which may be far lower.  The result over time is that the bypass trust keeps getting smaller and smaller each time your wife gives the IRA distributions to herself directly.  That makes her worth more and the bypass trust worth less.  And if she is worth too much at her death, then estate taxes will still be owed.

As you can see, the laws associated with IRAs and bypass trusts are extremely complicated.  This answer is designed to give you a general overview of the planning options which are available, and there are exceptions to some of the statements in this answer.

Q.    My retirement plan at work has grown to a little over $1,000,000, and it's going to get bigger because I still have about ten years before I retire.  My wife and I have some other investments, but the retirement plan is the bulk of our estate.  If I die first, I want to let my wife use the income from the retirement plan for the rest of her life, but after she dies, I want the balance to pass to my two daughters, not to my wife's next husband or anyone else.  What should I do?

A.    You have a very complicated problem with no simple solution.  Here are five approaches you can take.

Option One.  You could name your wife as the primary beneficiary and make her promise to name your daughters as her sole beneficiaries after her death.  This approach is simple, but risky, as it leaves your wife in total control.  After your death, your wife will have the ability to roll your plan over to her own IRA and name her own beneficiaries.  With you out of the picture, your wife may break her promise and leave your daughters no part of your retirement money.  Your wife would also have the ability to liquidate the plan at any time by making a distribution of the entire amount to herself.

Option Two.  Rather than naming your wife as the beneficiary, you could provide for the plan to pass to a trust for her benefit.  As the beneficiary of the trust, your wife could receive the income from the retirement plan while she is alive, and then after her death, the remaining assets could pass to your daughters as provided in the trust instrument.  As you can see, a trust may be a good solution to your problem, but there are a number of potential drawbacks.

For starters, many company retirement plans cannot be paid to irrevocable trusts without income taxes being due on the plan's entire value.  Even though tax laws allow your employer to administer your retirement plan following your death with continued income tax deferral, it is probably your employer's policy to make a lump sum distribution of the entire plan to the trust at your death. Most employers don't want to be bothered with years of bookkeeping following the deaths of their employees.  You should check with the benefits department at your company to see what types of payout schedules are possible with your plan.  If continued income tax deferral is available, you may have found the best answer to your question.

If you go forward with the idea of a trust, you may want to name someone other than your wife as trustee.  Naming your wife leaves her in total control of how the trust property is invested and distributed.  She would have the power to negate your intentions by making large distributions to herself, even to the point of using up all the trust property.  If you name one of your daughters as trustee (or both of them as co-trustees), then a potential family conflict arises because your wife would need to seek approval from your daughters whenever she needs money.  You could name a trust company as trustee, but your wife may not be too happy having to ask a trust officer for money.  Also, trust companies charge fees for their services.  Trust companies are right for some people and not for others.

Option Three.  If you are fortunate enough to retire before your death, you can roll over your company retirement plan to an IRA and achieve all your goals.  With an IRA, you can name one or more trusts as the beneficiary, and still continue most of the income tax deferral.  Whatever is left in the IRA when your wife dies can pass to your daughters with the possibility of further income tax deferral if they choose.  These issues relating to an IRA rollover are good for you to know, but they are not yet relevant because your retirement money is still in a qualified plan at work.

Option Four.  You can designate your daughters as partial beneficiaries of your retirement account, with the balance passing to your wife.  This way, everyone is guaranteed to get something.  After your death, your wife can roll her portion over to an IRA without current income taxation.  Your daughters will likely be able to defer income taxes over their life expectancies as well.

Option Five.  Another approach is to buy a life insurance policy which names your daughters as beneficiaries.  Your wife could be named as the primary beneficiary of your retirement plan.  For instance, if you think $400,000 is enough for each daughter, then you could buy an $800,000 policy.  Structured properly, the insurance can pass to your daughters (or to trusts for their benefit) without income or estate taxes.  Everyone would get enough money, and there would be no conflicts following your death.  If you consider that the combined income and estate taxes on your retirement plan could reach as high as 50 - 70% of the entire plan, then spending a few thousand dollars per year on life insurance makes a lot of sense.

Please note, this answer contains some generalities, and many exceptions apply.

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Custodial Account Questions:

Q.    I created a Uniform Transfers to Minors Account for my son a few years ago, and it is now worth about $80,000.  My son has no idea about the account, but I know he is legally entitled to the funds when he turns 21 later this year.  I realize it's not exactly legal to put the $80,000 back in my name, but I don't want him to get the funds because I have a suspicion it will be spent in a matter of weeks.  Is there anything legal I can do to maintain control of the account and keep him from having full access at age 21?

A.    There are two realistic options available to you.

For starters, you could invest the $80,000 in a limited partnership controlled by you.  When your son reaches age 21, he will not receive the $80,000, but instead will become the owner of a limited partner interest.  As a limited partner, his rights can be severely restricted, thereby allowing you to control the funds for as long as the limited partnership exists.  The limited partnership agreement can be written so that your son has no right to demand a distribution or veto your investment decisions.

One of the downsides to creating a limited partnership is that you are introducing a bit of complexity into your life.  Many people find this type of business arrangement too complicated for their tastes.  Also, the fees to set up a limited partnership can be costly.  And once the limited partnership exists, you will need to file annual income tax returns to report the partnership's income to the IRS.

Not only that, but many people create a corporation or limited liability company to serve as the limited partnership's general partner.  If you choose to create this additional entity, the fees to form and maintain the limited partnership arrangement will be even higher.

A word of caution:  Your son may be the type to hire a lawyer to represent his best interests. If he does, it is possible--although highly unlikely--that your son might sue you to recover any funds you have placed in a limited partnership which limits his rights.  In theory, your son would have a compelling argument.  After all, most people would agree that receiving $80,000 in stocks and cash is better than receiving a limited partnership interest with all the associated restrictions.

Another option is to tell your son about the existence of the account, but make it clear that he would be making a huge mistake by not letting you continue to control the funds.  If he puts up too big a fuss and demands the money, you can modify your estate plan and completely cut him out as a beneficiary of your estate.  There is nothing illegal about you managing your son's investments for him, assuming he has the right to ask for the money at any time.

Q.    I set up custodial funds in my children's names to pay their college expenses, with me as custodian. The mutual funds I invested in have done so well that the accounts far exceed what they'll need for college. Can I legally give money from these funds back to myself? If so, how?

A.    No, even though there is nobody to stop you from giving the money back to yourself, doing so would be illegal.  Gifts to custodial accounts are irrevocable.

If you were to return the funds to yourself, your children would have the right to sue you, and they would probably win.  Of course, they would probably never know what you did, and most kids don't sue their parents (especially if they think there may be a lot more money to come one day).

Fortunately, you can start spending the money in the custodial account on things for your children which you may now be paying out of your own funds.  For instance, if one of your children wants to spend the summer studying in France or if one of your children needs a new car, use the money in the custodial account to pay for these expenses, not your own money.

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Tax Questions:

Q.    Could you explain how stock values are "stepped up" as a result of death?  My father has a lot of stocks that he bought decades ago, and I'll be inheriting them when he dies.

A.    Getting a stepped-up cost basis on inherited stock allows you to save taxes when the stock is sold.

For instance, if your father bought a stock at $10 a share, and it is now worth $100 a share, when he sells the stock, he will owe a capital gains tax on the $90 the stock has appreciated.  If your father gives you the stock before his death, the gift will be valued at $100 a share, but you will take his cost basis of $10 a share.  That means you will owe a capital gains tax when you sell the stock.

If your father waits to give you the stock until after his death, the stock will be valued in his estate at $100 a share, and you will have a new cost basis of $100.  Your father's $10 cost basis gets "stepped-up" to $100 as a result of his death.  This is true even if your father's estate is not required to file a federal estate tax return.  When you later sell the stock, you will only owe capital gains if the value of the stock is higher than $100.

If your father is married, rather than leaving the stock to you, your father might leave the stock to his wife (presumably, your mother).  In that case, your father and mother would probably own the stock as community property, with each owning one-half of the stock.  Upon your father's death, your mother will not only get a stepped-up cost basis on your father's one-half of the community property stock, but she will get a stepped-up cost basis in her half of the stock as well.  This is a benefit which is generally available only in community property states.

There are two exceptions worth noting.  First, after your father's death, if his estate owes estate taxes, it is possible to value the stock six months following his date of death.  If the stock is worth less at that time, you can use this lower value as a way to pay less estate taxes.  But if you do, the basis in the stock is also the lower value--not the higher date of death value.

Second, if you own $20,000 worth of stock that you purchased for $1,000 years ago, you may be hesitant to sell the stock because you don't want to pay capital gains taxes (typically 15% of $19,000, or $2,850).  Your idea may be to give the stock to your father, who is very ill and near death, and then have him leave it to you when he dies, thereby getting a stepped-up cost basis.  As you might expect, the IRS doesn't like this, and there is a rule which says if your father dies within one year of being given your stock, then you receive the stock with your old cost basis.  If your father makes it more than a year, then you do get the stepped up cost basis.

Q.    A relative recently died and left me some stock. How is the tax handled on this transaction? Do I pay the tax when I sell it? Her basis in the stock was very low.

A.    When you inherited the stock, you received what is commonly referred to as a stepped-up cost basis.  That means your relative's low basis in the stock is forgotten, and instead, your new basis is the stock's value on the date of death.

Technically, your cost basis is the average of the stock's high and low trading prices on the date of death, not the stock's closing price.  If your relative died on a weekend or holiday, then a weighted average of the two nearest open market trading days is used to determine your cost basis.  For instance, if your relative died on a Saturday, the average of the high and low trading price on Friday is multiplied by two-thirds, and the Monday high and low average is multiplied by one-third.  The two resulting numbers are added together to arrive at the new cost basis.

As a general rule, no taxes are due until you sell the stock unless your relative had a taxable estate, which in 2008 is an estate over $3,500,000.  And when you do sell the stock, you will have a short term capital gain or loss if you sell the stock within one year of your relative's death, or a long term capital gain or loss if you wait longer.

Note: there are several exceptions to the general rules in this answer.

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Power of Attorney Questions:

Q.    What is the difference between a Medical Power of Attorney and a Directive to Physicians?

A.    A Medical Power of Attorney is a document that allows you to name an agent to make medical treatment decisions for you in accordance with your wishes if you are not able to do so yourself.

A Directive to Physicians is a document that allows you to address what kind of medical treatment you would like to receive if you ever face a terminal or irreversible medical condition.  It is often referred to as the document where you tell the doctors to "pull the plug."  Most people request that all treatments other than those needed to keep them comfortable be discontinued or withheld so they can be allowed to die as gently as possible.

The main difference between the two documents is that the Directive to Physicians is where you actually express your own specific preferences as to the use of life sustaining treatment, and the Medical Power of Attorney is where you name one or more persons to make most medical decisions for you.

Within a Directive to Physicians, it is also possible to name an agent to make medical treatment decisions for you in accordance with your personal wishes if you do not also have a Medical Power of Attorney.  Even so, most people go ahead and sign both a Directive to Physicians as well as a Medical Power of Attorney, and they do not name an agent within a Directive to Physicians.

Q.     If I name someone to make medical decisions for me in a Medical Power of Attorney, can that person later decide not to turn off the machines even though I have signed my Directive to Physicians?

A.    If you have both a Directive to Physicians and a Medical Power of Attorney, there certainly can be some overlap.

For instance, a decision made by your agent under a Medical Power of Attorney may have the effect of ending your life within hours or days even though you may not yet have reached the point at which your Directive to Physicians would have applied to your medical condition.

In situations where there is overlap, Texas law states that your attending physician and the agent you have named to make medical decisions must act in accordance with your directions.  Presumably, this means that if your physician has determined you are in a terminal or irreversible condition, your Directive to Physicians should be honored.  However, since the law is not as clear as it could be, it is a good idea to include a provision in your Medical Power of Attorney requiring your agent to comply with a validly executed Directive to Physicians.

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Probate Questions:

Q.    Which assets are handled outside of probate?

A.    There are a number of different kinds of properties that may pass outside the provisions of your Will.

The list includes life insurance, retirement plans, individual retirement accounts, and annuities.  When you purchased or set up these types of assets and accounts, you were probably asked to fill out a form listing the beneficiaries who will receive payments upon your death.  These investments will pass to the named beneficiaries regardless of whether you have a Will.  However, if you don't have a beneficiary named, if the beneficiary named is your "estate," or if all the beneficiaries are dead, then those investments will be paid to your estate and pass under your Will.

Certain bank and brokerage accounts will also pass outside your Will.  For instance, payable-on-death accounts (sometimes called "POD" accounts) will be distributed to the named beneficiary.  Additionally, accounts set up by one or more persons as joint tenants with rights of survivorship will pass to the surviving account holder or holders.

Some banks allow you to set up what they call trust accounts even though there is no written trust agreement.  These types of accounts will pass to a named beneficiary without going through probate as well.

Not all joint accounts pass to the survivor.  When joint accounts are set up as tenants in common, the portion of the account that was owned by the decedent passes under his or her Will.

Many people have decided to create revocable or irrevocable trusts as part of their estate plan.  Virtually all such trusts are designed to pass directly to persons or other trusts named in the document rather than under a Will.

You may find that most of your estate consists of non-probate property.  Therefore, it is extremely important to coordinate the beneficiaries of all these properties to make certain your assets will be distributed as you want when you pass away.

Q.     Must a Will be probated if the estate is less than $3,500,000?  Are insurance proceeds included in that total?

A.    There is no requirement that you probate a Will no matter how much the estate is worth.  Wills need to be probated only if property is not transferred by some other means.

You are confusing probate with the filing of a federal estate tax return.  Regardless of how the property is transferred at death, if an estate is valued at $3,500,000 or more in 2008, then a federal estate tax return must be filed.  And yes, you must include proceeds of life insurance owned by the decedent in computing the $3,500,000.

The probate process is primarily a method of changing title from the deceased to the person or persons who inherit the property.  Some assets require probate, such as real estate and bank accounts held only in the name of the deceased, while others do not, such as life insurance policies or retirement plans payable directly to named beneficiaries.

Q.    I'm named as the executrix of my father's Will. What do I do when he dies?

A.    There are some steps you must take and other steps you may need to take. Exactly what you must do depends on the types of assets your father owns and the size of his estate.

Find the Will.  Locating an original Will can sometimes be difficult.  Many people keep their Wills in a safe deposit box, while others keep them at home or some place else.  It may be a good idea to talk to your father and find out where his is kept.  If it's at the bank, be sure you're authorized to enter the box, otherwise it may be harder to get the Will out.

Hire a Lawyer.  Most of the time, it's necessary to hire a lawyer.  The judges in some smaller counties allow people to represent themselves in probate matters, but you still may have trouble preparing all the necessary forms that are required.  It's safe to say, therefore, that lawyers must be hired in the vast majority of cases.

Application For Probate.  The first document your lawyer will prepare is an application for probate.  The original Will is filed at the court house along with the application and a filing fee.  The application is usually several pages long, and it describes certain facts about your father, his Will, and his property.

The Probate Hearing.  After a ten day mandatory waiting period, a probate hearing will be held.  Your lawyer will schedule this hearing for you.  Under ideal circumstances, you can get your hearing two weeks after the application is filed.  However, it often takes three weeks or longer to schedule a hearing because of the backlog in the courts and other scheduling conflicts.  In larger counties, the hearings are held in a crowded courtroom, and dozens of cases are heard one after another.  In smaller counties, the hearings are often less formal, with the judge often shaking your hand at the door to his or her office, and then showing you to a chair right there in the office.

Testimony and Order.  At the hearing, your lawyer will ask you a number of routine questions.  Most of the time, the judge will then sign an order admitting the Will to probate.  The order is a document which your lawyer will have prepared and brought to the hearing.  You will also be asked to sign the written document containing your testimony.

The Oath.  After the hearing, you will need to sign an oath stating that you will fulfill your duties as independent executrix of your father's estate.   The word "independent" means that you will not need to ask the court for permission to sell estate assets or to conduct any other duties as executrix.

Letters Testamentary.  After your oath is filed, you will be able to order "letters testamentary" from the county clerk.  The letters will authorize you to close bank accounts and collect and claim other estate assets.  You can order as many letters as you think you will need.

Notices.  Within 30 days of receiving letters testamentary, you must publish a "notice to creditors" in a local newspaper.  This notice lets creditors of your father's estate know where they may file claims to recover money they are owed.  It must be published even if your father has no creditors.  Certified letters must also be sent to all of the charities named in your father's Will.  Proof that you performed these tasks must be filed with the court as well.

File the Inventory.  Within 90 days of qualifying as executrix, you must file an Inventory with the court.  The Inventory lists all the assets which pass under your father's Will.  Importantly, the inventory doesn't always list everything a person owns, since you don't have to list assets that pass directly to named beneficiaries.  For instance, life insurance, retirement plans, some joint accounts, and many other properties are designed to pass directly to a named beneficiary.  After the Inventory is filed, the judge will sign an order approving the Inventory.

Tax Returns.  Estates valued at over $3,500,000 must file a federal estate tax return and a Texas inheritance tax return within nine months of death.  Taxes will be owed if the net estate exceeds that amount.  The tax rate on assets over $3,500,000 is 45%.  You may also be required to file income tax returns for the estate.  Often, the lawyer handling the estate will also prepare the estate and inheritance tax returns.  However, few lawyers prepare income tax returns.

In answering your question, I have assumed your father's Will was executed, witnessed and notarized properly, and that it contains all the right language.  Not all probate proceedings are as easy as this answer indicates.  For instance, you may find yourself in the middle of a Will contest, or your father's Will may have been written in another state, thus complicating the probate.

One more thing: Not all Wills need to be probated.  You may find that everything your father owns passes directly or automatically to named beneficiaries.  If the only assets left are his household goods and other personal items, there is no need to hire a lawyer and go through probate.

Q.    For years, I've heard that probating a Will in Texas is simple and can be done by a lay person, but in response to a recent question on the subject, you said the first step is to hire a lawyer. To clarify, can a lay person probate a simple Will in Texas without the need to hire a lawyer?

A.    The answer to your question depends on where you live.

In densely populated counties, the courts are extremely busy, and they have adopted policies of not allowing people to probate Wills without a lawyer.  But in smaller counties, the judges will often let people probate Wills on their own.

The courts in the larger counties simply don't have the time to explain the probate process to all the people who call asking for help.  More often than not, when people try to conduct a probate proceeding without a lawyer, forms are prepared incorrectly or not at all, and the required court hearings are slowed to a crawl.

Courts justify this decision in a number of ways.  Some courts say the "client" in a probate matter is the estate of the person who died and not you, the Executor.  You may be allowed to represent yourself in a legal matter, but you cannot represent another party--which is the estate in a probate matter--unless you are a licensed attorney.

Other courts say that because many probate proceedings are not straightforward or because witnesses may need to be deposed or cross-examined, a lawyer should be present.  Judges are sometimes unwilling to let non-lawyers handle the representation and conduct the court hearing.

Q.    I was told that a Muniment of Title could be used to settle an account with a brokerage house. I tried that approach with my wife's estate, of which I am the Executor. The brokerage firm would not accept the Muniment of Title because I was not appointed by the court to be the Executor, and they wouldn't look at the Will at all, where my role is laid out. What did I do wrong?

A.    It's hard to say what was done wrong.  Wills are probated as muniments of title--which is a simplified way of going through probate--all the time, and they usually work just fine.

Let's review the steps you should have taken in probating your wife's Will as a Muniment of Title.  Perhaps you'll discover what went wrong as you read through the process.

You should have started by filing the original Will along with an application for probate with the county clerk's office.  The application should have stated (among other things) that there is no necessity for administering your wife's estate and that there are no debts of the estate other than those secured by real estate.  (You can probate a Will as a Muniment of Title if there is a mortgage on your home.)

After a mandatory 10 day waiting period, you should have attended a hearing where you or another person would have testified before the court about certain facts relating to the decedent.  Most people hire lawyers to prepare the paperwork and handle the scheduling and conducting of the hearing.  In fact, most courts don't allow people to appear in court without a lawyer.

Assuming all went well at the hearing, the judge then would have signed an order prepared by your lawyer directing that the assets owned by your wife be distributed as provided in her Will.  It would have been advisable to add language to the order specifying the name of the brokerage firm, the account number, and the person or persons to whom the securities must be distributed. The order should have also contained a provision waiving the requirement that you report back to the court once the brokerage account has been distributed.  Courts will routinely waive this requirement, but you must remember to ask for the waiver.

Once the probate hearing was over, you should have ordered a certified copy of the Will and the signed order from the clerk's office, and then forwarded those documents to the brokerage house.  They may prefer for you to be the court-appointed executor of your wife's estate, but when presented with a court order requiring them to disburse the account, they should do as directed.

According to Texas law, the order admitting the Will to probate as a Muniment of Title is sufficient legal authority for banks, transfer agents, brokerage houses or other businesses holding assets of the estate to pay those assets to the person or persons named in the Will.

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Other Common Estate Planning Questions:

Q.    Who will inherit my property if I die without a Will?

A.    In Texas, if a decedent dies without a valid Will, all probate property passes under the laws of "intestate" succession.

A.  All surviving descendants of Decedent ARE also descendants of Surviving Spouse

1. Separate Real Property
1/3 to Spouse For Life (Remainder to children) 2/3 equally divided among children
2. Separate Personal Property
1/3 to Spouse 2/3 equally divided among children
3. Community Property
All to spouse

B.  Surviving descendants of Decedent ARE NOT also descendants of Surviving Spouse

1. Separate Real Property
1/3 to Spouse For Life (Remainder to children) 2/3 equally divided among children
2. Separate Personal Property
1/3 to Spouse 2/3 equally divided among children
3. Community Property
Decedent's ½ Community Property Equally divided among children Surviving Spouse's ½ Comm. Property The surv. spouse retains his or her ½ community prop. interest

SURVIVED BY SPOUSE, NO DESCENDANTS, AND BOTH PARENTS:

A. Separate Real Property
1/2 to Surviving Spouse 1/4 to father 1/4 to mother
B. Separate Personal Property
All to spouse
C. Community Property
All to spouse

SURVIVED BY SPOUSE, NO DESCENDANTS, AND ONE PARENT:

A. Separate Real Property
1/2 to Surviving Spouse 1/4 to Surviving Parent 1/4 to Brothers and Sisters
B. Separate Personal Property
All to spouse
C. Community Property
All to spouse

SURVIVED BY SPOUSE, NO DESCENDANTS, AND NO PARENTS:

A. Separate Real Property
1/2 to Surviving Spouse 1/2 to Brothers and Sisters
B. Separate Personal Property
All to spouse
C. Community Property
All to spouse

SURVIVED BY NO SPOUSE, BUT WITH SURVIVING CHILD OR CHILDREN:

All property is equally divided among the children.  Children of deceased children take their parents share.

SURVIVED BY NO SPOUSE AND NO CHILDREN:

A. Both of Decedent's parents alive
1/2 to Father 1/2 to Mother
B. Only one of Decedent's parents alive
1/2 to Surviving Parent 1/2 equally divided among Decedent's brothers and sisters
C. Neither parent of Decedent survives
All property is equally divided among Decedent's brothers and sisters

Q.    What is a holographic Will, and how does it work?

A.    A "holographic" Will is a Will that is written entirely in your own handwriting.

No witnesses are required, and no portion of the Will may be typed.   If you type some or all of the words, or you incorporate other markings or other documents into the text, you could inadvertently invalidate the Will.  The idea behind holographic Wills is that since the entire document is in a person's handwriting, there is no need for witnesses to sign it to establish its validity.  Holographic Wills don't need to be notarized either, but they do need to be signed.

Most lawyers would tell you it's a bad idea to write your own Will because you can easily create ambiguities and other defects that can lead to litigation following your death.  This is especially true in second marriage situations when one or both spouses have children from prior marriages or relationships.

If you decide to write your own Will, you should be sure to say in the introductory sentence that it is your Will, and that you are revoking all prior Wills.  If you don't revoke all prior Wills, your handwritten Will and any other Wills that have not been revoked will be looked at together to determine who inherits your estate.  As you may expect, problems arise when the various documents conflict.

Be sure to identify each bequest clearly and to give away all of your property.  A frequent problem with handwritten Wills is that they list some accounts and properties, but then leave out others.  Property that you don't mention in your Will passes to your heirs as determined by our legislators in Austin.  Your heirs may not be the same persons named in your Will.  Also, going to court and figuring out who your heirs are can be an expensive and time-consuming matter.

It's often the case that handwritten Wills don't name an executor, and the ones that do may fail to state that the executor should serve as an "independent" executor.  Failure to name an "independent" executor could result in an administration of your estate which is fully court supervised, expensive, and lengthy.

Another important provision that is often left out of a holographic Will is a waiver of bond.  When you don't request a waiver, the judge can require that your executor post a bond.  Sometimes, it's not possible to even get a bond, and if your executor can get one, it will undoubtedly be expensive.

Lastly, it should be noted that handwritten Wills are almost always more difficult to probate than typed Wills because courts require two witnesses who are familiar with your handwriting to testify that the Will was, in fact, written by you.

Q.    I've moved to Texas from Florida, where I had a simple Will drawn with my daughter as the only beneficiary. Do I need to get a new Will made in Texas?

A.    Yes, you should prepare a new Texas Will.

While it is true that Texas recognizes the validity of a Will executed in Florida, your daughter will have an easier time probating your Will if you have a new one prepared using correct Texas language.

For instance, there is almost no chance your Florida Will names your daughter to serve as the "independent executor" of your estate.  In fact, she is probably called your "personal representative" which is the lingo used in Florida.  Being an independent executor means she will not be supervised by the court, the preferable way to administer an estate.  If you don't state in your Will that your daughter will be your independent executor, she can still make a special request to the judge after your death asking that she be allowed to act independently, but there is no guarantee that her request will be approved.

Also, the end of your Will should have what is called a "self-proving affidavit" which is a long statement discussing the signing ceremony.  Texas has its own unique form of "self-proving affidavit" and it is different from the one used in Florida. It is possible that the judge will refuse to recognize Florida's "self-proving affidavit" thereby causing your daughter unnecessary delays and expenses.

Q.    My sole assets are a car, personal belongings and a savings account with less than $50,000 in it. Do I need a Will?

A.    You would think there's a simple yes or no answer to your question.  But as with so many other legal questions, the answer is:  maybe, maybe not.

With regard to your bank account, you can set it up so that it passes to one or more persons who are named as the beneficiaries.  This type of account is normally called a "payable on death" or "transfer on death" account.  Most, if not all, banks allow their customers to establish this type of account.

If the persons you have named are alive when you pass away, all they will need to do is present the bank with a death certificate, and they will be given the money.  However, if you die without having named a beneficiary or if all of the beneficiaries you have named die before you, then some sort of probate will be needed.

In that situation, if you die without a Will, your estate would probably be small enough to qualify as a small estate.  That means the normal probate process could be simplified by filing a Small Estate Affidavit.  The Affidavit will list the properties you owned, and it will state who your heirs are under Texas law.  Once an order approving the Affidavit is signed by a judge, your heirs can claim the money by presenting a certified copy of the order to your bank.

If your estate does qualify as a small estate, but you have a Will, then your heirs can't file a Small Estate Affidavit.  Instead they must take the more expensive route of probating your Will.  So, depending on the expected size of your bank account, you may be doing your family a disservice by having a Will.  Wills that transfer property must be probated, and in nearly all situations, that means hiring a lawyer and paying court costs and other fees.

Also, a Small Estate Affidavit will not be available if your savings account contains more than $50,000 upon your death.  In such a case, it would be necessary to conduct a formal probate at the courthouse, and having a Will would make the probate process far simpler than not having one.

As far as your car is concerned, it can be transferred at death without the need for probate by completing a Form VTR-262 "Affidavit of Heirship for a Motor Vehicle."  Your heirs can obtain this form at any county court annex or online at www.dot.state.tx.us.  This Affidavit will establish that the car was owned by you, and the persons who inherit your estate will need to sign it.  When completing the form, your heirs might also be asked to provide other documentation such as a certificate of title, release of lien, affidavit of physical inspection, bill of sale and/or proof of liability insurance.

The problem with letting your heirs simply use the VTR-262 form is that the car may not be passing to the person or persons you would want.  For instance, if you have two children, but you want your car to go to only one of them, then you may want to execute a Will which names the one child who will get the car.

Your personal property does not have title, so it's not necessary to probate a Will in order to validly transfer ownership to your heirs. It's unfortunate, yet true, that personal belongings are available on a first come, first serve basis to your children, friends and neighbors.  You may want to limit the number of people who have keys to your residence and also make a list of who gets what particular items.  But don't forget, it's often a free-for-all following a person's death.

Note, however, that if you have minor children, my answer would be yes, you need a Will.  With a Will, you could name guardians as well as a person to serve as trustee or custodian over the children's inheritance.

So, if you set your bank account up properly, if your car will be passing as you would want, and your beneficiaries are all adults, then you don't need a Will.  On the other hand, it can't hurt to have one just in case it's needed.

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Guardianship

When may a guardianship be necessary? If a person is unable to provide shelter, food or clothing for himself, manage his own financial affairs or care for his physical needs due to a mental or physical condition, then he may be found to be incapacitated and may be placed under guardianship.

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Are there different types of guardians? Yes. There is a guardian of the person and a guardian of the estate. The guardian of the estate has the duty and authority to manage the financial affairs on behalf of the incapacitated person. The guardian of the person has the duty and authority to provide the incapacitated person with housing, medical care, food and clothing.

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Is it possible to select a guardian before the need arises? Yes. Provided you are not incapacitated, you can name your guardian in the event of your later incapacity. To do so, you should execute a Designation of Guardian which must be witnessed by two disinterested individuals. The Designation allows you not only to select your guardian, but also allows you to disqualify those persons whom you do not want to serve as your guardian. You may change or revoke your Designation at any time before you become incapacitated.

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Who is entitled to serve as a guardian? The court will appoint a guardian for an incapacitated person based on the following order of priority:

1. the spouse of the incapacitated person
2. the incapacitated person's nearest relative
3. an eligible person who is best qualified to serve

 

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What happens to my durable power of attorney once a guardian has been appointed? The durable power of attorney terminates upon the appointment of a guardian.

 

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Trusts

What is a trust? A trust is a relationship created when a property owner (the "settlor") transfers legal title to another person (the "trustee") who has the duty to hold the property for the benefit of a third person (the "beneficiary").

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What are the different types of trusts? There are two main categories of trusts: testamentary trusts and inter vivos trusts. An inter vivos trust is a trust created during the lifetime of the settlor and takes effect the date the trust instrument is signed. A living trust is a type of inter vivos trust. A testamentary trust is created in a Will and becomes effective upon the death of the testator.

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When is it appropriate to create a testamentary trust? Providing for your property to pass by means of a trust may be appropriate in situations where there are minor children involved, beneficiaries that are incapable of caring for themselves due to a disability, or in situations where you hope to minimize your estate taxes.

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What are the advantages of a living trust? One major advantage of creating a living trust is that it may avoid the necessity of a guardianship in the event that the settlor becomes incapacitated. A living trust is also useful if the settlor owns property in different states. After the property is transferred to the trust, then there should be no need to administer probate proceedings in the foreign state. Substantial estate tax benefits may be realized by proper use of a trust.

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Does my living trust avoid probate? Yes. If all of the decedent's assets are properly and timely transferred to the trust, then probate may be avoided. However, if everything is not included and there are outstanding assets that were not transferred to the trust, then it is likely that the Will may have to be probated. If there is no Will, the assets will be distributed pursuant to the laws of descent and distribution after an heirship proceeding to determine the decedent's heirs.

Should I try to avoid probate? Not necessarily. In Texas, we have the option of independent administration of estates. Absent a Will contest or other litigation, there is minimal court involvement. You should contact a probate attorney to assist you in your decision making.

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Should I be concerned about taxes? Yes. There may be federal, state and/or local tax laws associated with the estate. You should always consult an attorney or certified public accountant prior to writing a Will or preparing any other estate planning documents.

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Directive to physicians (living will)

What is a directive to physicians? A directive to physicians is commonly known as a living will. It is a document that allows you to instruct your physician to withhold life-sustaining procedures. A person who has executed a directive to physicians should inform their doctor and request that the directive be made part of their medical records. A directive to physicians will not become effective until two physicians have certified in writing that the patient has an incurable or irreversible terminal condition and that the application of life-sustaining procedures would serve only to artificially prolong the moment of death.

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Did Terry Schiavo have a living will? No. If she had, none of that litigation would have been necessary. Her wishes would have been made known, and the doctors would likely have honored those wishes.

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Can a directive to physicians be revoked? Yes. The directive can be revoked at any time-even in the final stages of a terminal illness.

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What if the physician does not want to carry out the directive? If the physician chooses not to carry out the intent of the directive, he must make a reasonable effort to transfer the patient to another physician who will comply with the patient's wishes.

 

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What is the difference between a durable power of attorney for healthcare and a directive to physicians? A directive to physicians is limited in that it only applies to your decision to withhold or withdraw life support once death is imminent. A durable power of attorney for healthcare is broader in scope and appoints someone else to make many medical treatment decisions for you.

 

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Durable power of attorney for healthcare

What is a durable power of attorney for healthcare? A durable power of attorney for healthcare is a legal document that allows you, as the principal, to appoint an agent to make your healthcare decisions for you. You must be incapacitated and no longer capable of making your own healthcare decisions. Your attending physician must certify in writing that you lack the capacity to make your own healthcare decisions.

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What types of decisions can my agent make? Once appointed, your agent can make a broad range of medical treatment decisions for you. Your agent can consent, refuse to consent or withdraw medical treatment on your behalf. This includes the refusal to activate life support systems or the termination of existing life support systems. Your agent may not consent to:

  • Voluntary inpatient mental health services
  • Convulsive treatment
  • Psycho surgery
  • Abortion
  • Neglect through omission of care primarily intended to provide for the comfort of the principal

 

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What is required before a durable power of attorney for healthcare becomes effective? A durable power of attorney for healthcare is not effective unless the principal, before executing the document, signs a statement indicating that he has received a disclosure statement and has read and understands the contents. The principal must also sign the power of attorney for healthcare in the presence of two disinterested witnesses.

 

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Durable general power of attorney

What is a durable general power of attorney? A durable general power of attorney is a legal document that allows you (the principal) to appoint another person (the agent) to conduct your business affairs. This document is particularly helpful in your absence or during a time when you may be physically or mentally unable to conduct your business. Since the document is durable, it will continue to be in force and effective even if you become legally incapacitated. For all real estate transactions, the durable general power of attorney must be recorded in the county clerk's office where the property is located.

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Can the durable general power of attorney be revoked? Yes. You can revoke your power of attorney by providing your agent with a written revocation or by recording a written revocation in the county clerk's office. Also, your power of attorney will automatically terminate upon your death or in the event that a court appoints a guardian for you.

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Probate and Estate Administration

What is probate? Probate is the court procedure by which a Will is proved to be either valid or invalid. If the court approves the Will as valid, it is then admitted to probate.

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What is the time period to admit a Will to probate? Generally, a Will must be admitted to probate within four years from the date of the testator's death.

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What is involved in the administration of an estate? Administration is the process of carrying out the terms of the Will once the Will has been admitted to probate and Letters Testamentary have been issued.
Administration includes:

  • Sending the required notice(s) to creditors
  • Filing the necessary Inventory, Appraisement and List of Claims with the probate court and obtaining the Court's approval
  • Collecting the assets of the deceased
  • Paying the taxes, expenses and debts of the estate
  • Distributing the assets to the beneficiaries

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What is an independent administration? An independent administration provides for the administration of an estate without court supervision. After the executor is appointed and qualifies, the court only requires that the executor provide proper notice to creditors and timely file a sworn inventory, appraisement and list of claims.

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What is the difference between an independent and dependent administration? A dependent administration occurs when the probate court selects, appoints and supervises the administrator. In a dependent administration, the court-appointed administrator must file a bond and timely file annual and final accountings. The administrator must also obtain court approval for almost every activity performed on behalf of the estate. By contrast, an independent administration proceeds with minimal court supervision.

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How do I obtain an independent administration? An independent administration can be created in the Will. The Will must contain language indicating the testator's intent to establish an independent administration that is not subject to court supervision. If there is no Will, then the probate court can create an independent administration provided that there is agreement from all persons entitled to distribution from the estate.

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What are Letters Testamentary and Letters of Administration? Letters Testamentary are issued by the court clerk's office as evidence of the executor's authority to act on behalf of the estate. Letters of Administration are issued for the same purpose to an administrator who was appointed by the probate court in the situation where there was no Will.

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