A simple Will, typically means that you want to leave all of your property to a spouse, and alternatively, to a child, or children, equally (or just to the child, or children, equally, if there is no spouse). More “complex” wills may require further discussion and clarification.
A Will names an Executor to “probate” the Will. Probate typically refers to the process of one court hearing, to approve and “admit the Will for probate”, by the Probate Judge (after the Testator, or person who wrote the Will, has died). The Executor, typically is “Independent” and “Serves “Without Bond”, meaning the Executor has the full authority to transact all business and is not required to be bonded, by an insurance company (the cost of which, comes out of the Estate funds. The Executor has the ability to gather all of the property, pay debts, and then distribute the remaining property to the named heirs, or distributes under the terms of the Will.
You have the ability to Name an Executor, and alternates, in your Will.
You should not leave property (or money) to a child (or other person) that is under the age of eighteen. Should they inherit, before they are an adult (age 18, in Texas), their inheritance would be forced into a Guardianship, which is very expensive, and cumbersome! Instead, you should consider including a Trust inside your Will, for the purpose of holding the minor child’s inheritance until the child reaches an age that you determine. I typically suggest age 25. The Trustee, of course, can spend as much, or as little of the Trust funds for the benefit of the minor child during the course of the Trust. The standard expenditures, out of a Trust, are for the health, education, maintenance and support of the minor child. When the child reaches the age you have established, the remainder of the assets are transferred to the (then adult) child.
You can name anyone to serve as the Trustee (and alternates), and it can be the same person as the Executor. You can also name a person that you would recommend, or prefer, to be the Guardian of any minor child.
A “typical” simple Will, often leaves all of the property to the surviving spouse, else to the child(ren). The surviving spouse is named as the Independent Executor, to serve without bond. Otherwise, the entire estate is given to the child(ren), equally, or to their issue (lineal descendants), per stirpes. Per stirpes is a Latin term, meaning that the share of one of the children (that is pre-deceased) passes on to their child or children, equally. So, if child #1 has 1 child, child #2 has 2 children, and child #3 has 3 children, per stirpes would pass one-third of your estate to each set of grand-children (Descendants of: Child #1—gets 1/3; Child #2—gets 1/6 each; and Child #3—gets 1/9 each) The alternative is per capita, which is rarely used. It means that if all of your children are deceased, and each deceased child has one or more children (your grand-children), they would each get the same amount. So, with the same scenario, each grand-child would get 1/6 each. Most people prefer to simply say that whatever share a child would take, that share is passed down to their children. The only time the per capita might be considered is, if all of the children were pre-deceased, at the time the Will was written.
You should carefully decide who you want to name as your Executor, Trustee and/or Guardian. It should be someone that you know, and trust, and a person whom you believe will treat your property and money the same as you would. Likewise, the person you name as Guardian should be someone you would want to care for your minor children. You should discuss these obligations with the person(s) that you name. Although you can name them, they always have a right to decline or resign from serving, which is why you should always name one or two alternates. Finally, you should know that an Executor, in Texas, must be over the age of 18, of sound mind, good moral character, and have never been convicted of a felony.
Medical Power of Attorney/Living Will
Please also consider drafting a Medical Power of Attorney and Living Will. The Medical Power of Attorney allows another person to make medical decisions for you, if you are unable to do so. You always have the right to make your own medical decisions, as long your health care provider believes that you are capable of making informed decisions. You can place limitations or directions in your Medical Power of Attorney, but that is seldom included. If you have any concerns in that regard, further consultation should be had to ensure your wishes. Also, you should consider the benefits of a Living Will. Many people, given the choice, would not want their body to be artificially kept alive, once a doctor has determined that there is no expectation of recovery and that life is merely being prolonged by medication, breathing tubes and/or feeding tubes. Those people, given the choice, would rather they be kept comfortable, and be allowed to die, “naturally”. These are tough decisions, but they are even tougher, if they are left to family to make, on your behalf.
Transfer on Death (TODD) or Enhanced Life Estate ("Lady Bird") Deeds
Often times, probate is necessary simply because there is a house, or real estate that needs to be transferred. One option to avoid probate is to consider a Transfer on Death Deed (TODD) or Enhanced Life Estate ("Lady Bird") Deed. Assuming that all other assets, bank accounts, etc. have beneficiaries, or there is no dispute over the distribution of personal assets and property, the "TODD" and "Lady Bird" deeds are designed to transfer real estate, upon death. There are many benefits to considering these options. Aside from the potential of saving the time and expense of probate, With a TODD or Lady Bird Deed, a person has the right to possess and use the real property, for life. These deeds can be revoked, and they have no effect if the owner decides to sell or refinance the property, and there is no loss of tax homestead exemptions!
This website is for informational purposes only. Using this site or communicating with Michael S. Newman, Attorney at Law, pllc through this site does not form an attorney/client relationship. This site is legal advertising.
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