Wills & Probate

Consulting an Estate planning lawyer can help provide peace of mind for you and your family. In most cases, it is recommended that an attorney draft your will and other estate planning documents which may include one or more Trusts. In some cases, the drafting of documents to help you conserve family assets and maintain governmental assistance for disability issues may be necessary. This is where an attorney can make an important difference in the conservation of your assets. Some basic information is provided below.

Last Will and Testament Attorney

A Will directs the distribution of your estate upon your death. A Will allows you to appoint guardians for your minor children, and trustees to manage their property. A guardian will provide care for your children in the event of death of both parents. Many parents with minor children have Wills which contain a Contingent Trust clause. The Contingent Trust only becomes active after the death of both parents. The Contingent Trust clause names a Trustee to manage the children's assets until they reach an age specified in the Will.

In Texas, if you pass away without a Will, the distribution of your assets will be determined by the state intestacy laws. Factors affecting the distribution of assets are the nature of the property (community property or separate property) and the nature of your family (spouse, children from one or more relationships, no children, siblings, parents). If you are married, do not assume your spouse will automatically receive your entire interest in real estate or other assets. In a Will you determine who receives what from your estate. As the Testator, you determine the amount that each person receives, specific bequests can be included; and you can include non-relatives who would not receive anything under the state intestacy laws.

This can be quite complicated and planning for property disposition can be stressful. The use of an experienced attorney can make this process much easier. A thorough discussion of your needs and your wishes with The Polansky Law Firm, PLLC will ensure that your property will be divided according to your specifications.

Documents Needed in the Event of Incapacity (Prior to Death)

Additional documents that protect you in the event of incapacity are Statutory Durable Power of Attorney, Medical Power of Attorney and Living Will or Directive to Physician.

Statutory Durable Power of Attorney : This permits you to name whom you trust to handle your financial matters, while you are living, if your are out-of-state or overseas, temporarily or permanently incompetent.

Medical Power of Attorney: This only becomes active in the event of your incapacity. If you are incapacitated the physician is then required to discuss health care issues with the person you appointed.

Living Will or Directive to Physician: This directs under very limited circumstances when a person's life should or should not be artificially prolonged by extraordinary measures. A Living Will or Directive to Physician can also allow you to specify whether or not you wish to donate organs.

HIPAA : The Health Insurance Portability and Accountability Act, HIPAA. This document will allow the specified person(s) to access your medical records or be authorized to speak to your doctors about your condition or treatment. This document is often used in conjunction with the Medical Power of Attorney or Living Will. It can be especially important in the case of unmarried individuals where access to records by a non-spouse may be limited.

Trust Attorney

Trusts can be used to minimize estate taxes, provide for disabled children, your own incapacity, education, retirement and for other purposes. Many people choose a Revocable Living Trust to minimize probate after they pass away. They also desire the privacy that a Trust can provide. This may or may not be the right choice for you. Older individuals may wish to set up a grandchildren's Trust. In cases of disability or injury a Supplemental Needs Trust or Special Needs Trust may be needed. If you have questions regarding what type of Trust may be best for your particular circumstances please call the office to schedule a free initial confidential consultation.

Probate Attorney

When a person dies the estate must pass through probate. The complexity of the probate process depends on the size and complexity of the estate. Texas has "independent administration" and a properly drafted Will can simplify the probate process by qualifying for independent administration.

Probate is a process consisting of:

  • Notification of all interested parties such as family members, potential heirs, and creditors;
  • Proving the Will valid;
  • The personal representative (administrator or executor) must collect the decedent's assets and create an inventory of the assets. If there are creditors' claims, the representative must determine the validity of the debts, and pay the valid debts;
  • If the estate exceeds a certain amount estate taxes must be filed and paid;
  • After the assets have been collected and the debts paid, distribution may be made to the named heirs. If heirs are not named in a Will or estate planning documents, then the assets will pass according to the Texas Probate Code (laws of intestacy).