The Burton Law Firm, P.C. has over 21 years of experience in this area
of the law. If you have questions about this subject please call us
at 713-222-6262; or email Randy Burton at randy@burton-lawfirm.com
or David Torok at david@burton-lawfirm.com or Hannah Heinz at hannah@burton-lawfirm.com.
General Law - Wills/Probate
- What is a will?
A will is an instrument that allows an individual to make a disposition or gift of his or her
personal or real property. The gifts do not become available until the time of the testator's death.
To be legitimate, this document must meet the requirements and formalities of state law.
- What is probate?
Probate is a court proceeding in which a will is proved to be valid or invalid. The term also
means any matter related to the estate of a decedent, whether the person died with or without a
will. To probate a will, it must be established in court that the will meets the requirements of
execution and that the will was not canceled or revoked. Additionally, unless the will is "selfproved,"
proof of a handwritten will requires the testimony of two witnesses to the testator's
handwriting and proof of a typewritten will requires the testimony of one of the attesting
witnesses.
- Who may execute a will?
Under Texas law, every person who has attained the age of eighteen years, or who is or has been
lawfully married, or who is a member of the armed forces of the United States or of the
auxiliaries thereof or of the maritime service at the time the will is made, being of sound mind,
shall have the right and power to make a last will and testament, under the rules and limitations
prescribed by law.
- Who should make a will?
Every adult person should consider making a will. Wills are especially important for parents of
children who are under eighteen, as arrangements for the children’s financial support and/or
appointed guardian can be determined. Without a will, any property distributed to minor children
could be subject to an expensive court-appointed guardianship, which could greatly affect
inheritance. In some states, if you were married and childless, your parents could split your
property with your spouse if not alternatively predetermined in a will.
- Who is a devisee?
A person to whom lands or other real property is given under a will.
- What is meant by bequeath?
To give personal property by a will to another.
- What is a bequest?
A gift of personal property passed under a will.
- What is meant by a legacy?
A disposition of personal property under a will.
- Who is a legatee?
A recipient of property, usually personal, under a will.
- Who is a testator?
The individual who creates a will is called the testator, if a man; or the testatrix, if a woman.
- Who is an executor?
An executor is the individual appointed to carry out the intentions in your will after your death.
This person must be appointed by the court before he or she can act. In your will, you may
designate the individual you wish for the court to appoint as executor. You may wish to name
one or two successive executors, to act in the event your first choice does not or cannot serve.
- What are the requirements of a will?
Per the Texas Probate Code, every last will and testament, except where otherwise provided by
law, shall be in writing and signed by the testator in person or by another person for him by his
direction and in his presence, and shall, if not wholly in the handwriting of the testator, be
attested by two or more credible witnesses above the age of fourteen years who shall subscribe
their names thereto in their own handwriting in the presence of the testator. Such a will or
testament may, at the time of its execution or at any subsequent date during the lifetime of the
testator and the witnesses, be made self-proved, and the testimony of the witnesses in the probate
thereof may be made unnecessary, by the affidavits of the testator and the attesting witnesses,
made before an officer authorized to administer oaths under the laws of this State. The affidavits
shall be evidenced by a certificate, with official seal affixed, of such officer attached or annexed
to such will or testament.
- Can property pass from a decedent to an heir outside of probate?
Yes.
- What passes under a will?
In general, a person may devise and bequeath all the estate, right, title, and interest in property
the person has at the time of the person's death.
- Can a person who makes a last will and testament disinherit an heir?
Yes.
- What does titled personal property mean?
It includes all tangible personal property represented by a certificate of title, certificate of
ownership, written label, marking, or designation that signifies ownership by a person. The term
includes a motor vehicle, motor home, motorboat, or other similar property that requires a
formal transfer of title.
- Who is an administrator?
A person appointed by a court to manage an estate of a decedent no possessing a will at death.
- What sort of a devise or bequest of property is void in a will?
It is void if the devise or bequest is made to: an attorney who prepares or supervises the
preparation of the will; a parent, descendant of a parent, or employee of the attorney who
prepares or supervises the preparation of the will or a spouse of an individual who prepares the
will or supervises the preparation of the will.
- Are there exceptions to these prohibitions?
Yes. The prohibitions to not apply to his section does not apply to: a devise or bequest made to a
person who: is the testator's spouse; is an ascendant or descendant of the testator; or is related
within the third degree by consanguinity or affinity to the testator; or a bona fide purchaser for
value from a devisee in a will.
- Can a self-proved will be contested?
Yes.
- Can a will that written wholly in the handwriting of the testator omit the attestation of the
subscribing witnesses?
Yes.
- What is a nuncupative will?
An oral will.
- Who can make an oral will?
Any person who is competent to make a last will and testament may dispose of his personal
property by a nuncupative will.
- What are the requirements of a nuncupative will?
No nuncupative will shall be established unless it be made in the time of the last sickness of the
deceased, at his home or where he has resided for ten days or more next preceding the date of
such will, except when the deceased is taken sick away from home and dies before he returns to
such home; nor when the value exceeds thirty dollars, unless it be proved by three credible
witnesses that the testator called on a person to take notice or bear testimony that such is his will,
or like words
- What is a pretermitted child?
Means a child of a testator who, during the lifetime of the testator, or after his death, is born or
adopted after the execution of the will of the testator.
- Can a pretermitted child inherit even if not mentioned in the testator's will?
Yes.
- What if I want to cancel or change my will after it is signed?
Do not write on your will or mark through any words. Even small changes or markings could
void the entire document. You also may revoke your will. Under Texas law, there are only three
ways to revoke a will: by a subsequent writing; by a physical act, or by operation of law. Similar
to the creation of a will, the revocation must strictly comply with state law. If you wish to cancel
or change your will, you should be as attentive in seeking legal advice as you were when you
created your will.
- Who will get my property if I die without a will?
If you die intestate (without making a will), you do not get to select who will receive your
probate assets. The state government decides for you, and each state's laws are different. In
Texas, if you die intestate, the persons who inherit from you depend upon whether you are
married or single, whether you have children, and other factors such as the type of property you
own.
- May a court prohibit a person from executing a new will or a codicil to an existing will?
No.
- May a person deposit his will with the county clerk during his lifetime?
Yes; but is has no legal significance.
- What is a holographic will?
A holographic will is entirely handwritten, dated and signed by the testator.
- What is a living will?
Also known as a medical directive or health care directive or directive to physician. This is a
document that authorizes the continuance or cessation of life-sustaining medical treatments from
an individual who is incapable of making that decision due to debilitating circumstances.
- Is there a way to avoid the expense of formal probate proceedings?
Yes. There may be ways to avoid the time and expense of formal probate, depending upon the
circumstances. If a person had a will, and the estate qualifies, the probate of will as a Muniment
of Title may be an option. There are other alternatives available to settle small estates, depending
upon whether the person died intestate or with a will.
- If I am a beneficiary under a will, can I do anything if the executor is using estate funds
for his own personal benefit?
Yes. The executor is required to act in the best interests of all the beneficiaries, and he owes a
fiduciary duty to your mother's estate. Fiduciaries, including executors, are held to a very high
legal standard of care. If you believe the executor is mismanaging the estate, you may need to
pursue a claim against him in probate court.
- What are estate (death) taxes?
Estate tax may apply to your taxable estate at your death. Your taxable estate is your gross estate
less allowable deductions.
- What deductions, if any, are used in calculating the taxable estate?
The allowable deductions used in determining your taxable estate include: funeral expenses paid
out of your estate; debts you owed at the time of death; the marital deduction; and generally, the
value of the property that passes from your estate to your surviving spouse. In Texas, if you die
intestate, the persons who inherit from you depend upon whether you are married or single,
whether you have children, and other factors such as the type of property you own.
- Who will take care of my pets after I die?
In your will, you may designate the person (and one or more alternates) you would want to have
ownership and custody of your pets after you die. If you desire, you may request that your
executor set aside a portion of money to provide for life-long care of any pets that you own at the
time of your death. If you do not have a will, your pets pass under the laws of intestacy as
personal property.
- My will leaves everything to my former spouse. Do I need to change my will?
Yes, but you have protection. If a person divorces after making a will, all provisions in the will in
favor of the former spouse are null and void, unless the will expressly states otherwise. However,
now that your former spouse is not a beneficiary, you should review your will to determine who
will receive your property and possessions.
- What if a couple re-marries?
A person who is divorced from the decedent or whose marriage to the decedent has been
annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the person is
married to the decedent at the time of death.
- Other than divorce, are there other reasons to change my will?
Yes. Considering changing your will if there is: a birth or adoption of a child or grandchild;
marriage; death or disability of a beneficiary under your will; or death or disability of your
executor.
- What is a durable power of attorney?
A written instrument that: designates another person as attorney in fact or agent; is signed by an
adult principal; contains the words "This power of attorney is not affected by subsequent
disability or incapacity of the principal" or "This power of attorney becomes effective on the
disability or incapacity of the principal," or similar words showing the principal's intent that the
authority conferred on the attorney in fact or agent shall be exercised notwithstanding the
principal's subsequent disability or incapacity; and is acknowledged by the principal before an
officer authorized to take acknowledgments to deeds of conveyance and to administer oaths
under the laws of this state or any other state.
- Does a durable power of attorney lapse because of the passage of time?
No; not unless the instrument creating the power of attorney specifically states a time limitation.
- What is the effect of the of a court appointed guardian ad litem on a durable power of
attorney?
If, after execution of a durable power of attorney, a court of the principal's domicile appoints a
permanent guardian of the estate of the principal, the powers of the attorney in fact or agent
terminate on the qualification of the guardian of the estate, and the attorney in fact or agent shall
deliver to the guardian of the estate all assets of the estate of the ward in the attorney's or agent's
possession and shall account to the guardian of the estate as the attorney or agent would to the
principal had the principal terminated his powers.
- What is the effect of a person’s divorce or marriage annulment on the appointment of an
attorney in fact or agent?
If, after execution of a durable power of attorney, the principal is divorced from a person who has
been appointed the principal's attorney in fact or agent or the principal's marriage to a person who
has been appointed the principal's attorney in fact or agent is annulled, the powers of the attorney
in fact or agent granted to the principal's former spouse shall terminate on the date on which the
divorce or annulment of marriage is granted by a court, unless otherwise expressly provided by
the durable power of attorney.
- What is a third-party’s liability to the principal?
When a durable power of attorney is used, a third party who relies in good faith on the acts of an
attorney in fact or agent within the scope of the power of attorney is not liable to the principal.
- What is the effect of the revocation of a durable power of attorney if unknown to a thirdparty
relying on same?
Unless otherwise provided by the durable power of attorney, a revocation of a durable power of
attorney is not effective as to a third party relying on the power of attorney until the third party
receives actual notice of the revocation.
- What is a trust?
A trust is an interest in property held by one person for the benefit of another. A trust involves
three persons: the grantor, the trustee and the beneficiary.
- How is a trust created?
A trust is created when the property owner (the grantor) transfers title and certain incidents of
ownership in the property to another person (the trustee) for the benefit or use of a third party
(the beneficiary). For the trust to constitute an effective transfer of title and ownership, it must
comply with all requirements of law.
- Can a trust be included in a will?
Yes.
- What does a trust do?
A trust creates a fiduciary relationship between the trustee and the beneficiary. The trustee must
act solely in the best interests of the beneficiary when dealing with the trust property. If a trustee
does not live up to this duty, the trustee is legally accountable to the beneficiary for any damage
to his or her interests. The grantor may act as the trustee himself or herself, and retain ownership
instead of transferring the property. A grantor may also name themselves as one of the
beneficiaries of the trust.
- How do I select a trustee?
The trustee should be someone you can depend upon to act in the best interests of the beneficiary
of the trust. The person can be a family member, an advisor or even a trustworthy friend. In
selecting the trustee, you should look for someone who has sound judgment, good business
sense, integrity and stability. A trustee also can be a bank or other financial institution, if it has
trust powers and otherwise qualifies.
- What kind of property can I place in a trust?
A trust can hold securities, such as common stock and mutual funds. You can also place certain
real estate and other types of property into a trust.
- Are trustees paid for the services they provide?
The trustee typically is entitled to reasonable compensation for services provided. If you are
setting up the trust, you generally can set the compensation, or you can provide that the trustee
shall serve without remuneration. This is often the case when a family member is named as the
trustee.
- What is a living trust?
A living trust, or inter vivos trust, takes effect during the grantor's lifetime. The trustee holds
legal title to the property for the benefit of the beneficiary. A living trust is a type of revocable
trust, as it generally can be revoked or canceled during the grantor's lifetime. A living trust may
or may not be an effective estate planning device, depending upon the individual's particular
circumstances.
- Can a trust be revoked after it is created?
Yes, sometimes. Certain trusts can be rescinded or canceled after they are created. In Texas all
trusts are revocable unless they provide that they are irrevocable. In a living trust or a revocable
trust, the grantor reserves the right to revoke the trust during his or her lifetime.
- When would a living trust be beneficial?
A revocable living trust is an important estate planning tool in some situations. It may be useful
to manage your property in the future, especially if you are elderly, ill or incapacitated, or likely
to become incapacitated in the future. However, in many situations, a living trust is not the best
choice and may not be necessary. There may be simpler methods suitable in your circumstances.
- Should I try to avoid probate by creating a living trust?
In Texas the probate of a will usually is quick, simple and relatively inexpensive. Hence, the
desire to avoid probate is not, by itself, a sufficient reason to create a living trust for Texas
residents. Nevertheless, valid reasons may exist to avoid probate in your situation such as if you
own land in several states or countries. Putting the land in a revocable trust could avoid probate
costs in multiple jurisdictions. Often a simpler alternative may suit your needs.
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