Wills: Managing Your Estate By: Burke C. Marold, J.D., M.B.A. Marold Law Firm, PLLC – Managing Member

A Philanthropic Minded Law Firm ®

TX Default Rules Texas Rules of Intestate (dying without a Will) – Unintended (or intended?!) consequences – Confusion, controversy, &/or loss of security – Irresponsible – More court oversight – Greater cost of time and expense

Intestate:Court Process Application to court to determine heirs – Unintended results? – Need for witnesses and other proof Application for appointment of Admin. – Waivers and consents – Risk of falling into a dependent admin. = > $$

Real life example I “Ted”; age 42; married to “Mary”; makes $200k a year; sole breadwinner in household; has three children, one from a previous relationship; is killed by a car while crossing the street; has NO Will. Ted’s estate owns the following: – 100% of house (wife and two children reside there); – Some vacant land in Corpus Christi; – Four cars HOW IS TED’S ESTATE DIVIDED?

TX Default Rules Wife – Share of separate land: 1/3 LE – Share of separate personal property:1/3 – Share of Ted’s community:ZERO Children (3 split)  Share of separate land:2/3 plus 1/3  Share of separate personal property:2/3  Share of Ted’s community:WHOLE

Problems Surviving wife is now forced to find a job while at the same time she has “lost” ownership of her house Child from previous marriage is now a co-owner of estate assets with Wife and two other childen How do you divide a house, land, and cars four ways? Ted’s new wife and first child do not get along. Two of the children are underage = GUARDIANSHIP..... A lot more problems!

Real life unintended results Court declaration of heirs; appointment of administrator for the estate Court declared guardianship of minor children Divided ownership of assets Stress, anxiety, tears, frustration $15, in attorneys’ fees

Real life example II “Sally”; age 79; suffered with severe physical illness for ten+ years; abandoned by her three children; taken care of by her neighbor for fifteen+ years; has NO Will. Sally’s estate owns the following: – $200,000 house – $90,000 life insurance policy; – One car HOW IS SALLY’S ESTATE DIVIDED?

TX Default Rules Loyal neighbor – Share of separate land: ZERO – Share of separate personal property:ZERO Children (3 split)  Share of separate land:100%  Share of separate personal property:100% IS THIS FAIR? IS THIS WHAT SALLY INTENDED?

TX Testate Rules Texas Rules of Testate (dying with a Will) – You make the rules! – You have the control! – You take responsibility for your estate! – You leave your family more secure! – You allow healing to take place!

Two types of Wills Formal witnessed Wills – Signed by you (18+), two witness (at least 14 yrs. Old), and notarized – “Independent” – Streamlined court process – Witnesses must same time Holographic Wills – Entirely in handwriting of testator – Made with intent to be a Will – Dated and signed – However, more court

What death? With valid Will – Uncontested court docket (i.e. Probate Court) – County where Decedent resided Executor name is officially appointed Authority to act for “estate” and creation of entity Pay debts, administer estate, follow court directives, distribute property, sign final and estate tax returns Without Will – Arrange for special hearing – Application to Declare Heirs – Application for Independent / Dependent Administration

Why Probate? Probate must happen! – Must hire an attorney – No authority to act or bind estate without Letters – Transfer title to Real Property and other “titled assets” (big issues here!) – Notice to creditors – Notice to beneficiaries / heirs

Advanced Planning Living Revocable Trust – Avoid Courts entirely – “Avoid” possible contests to your estate – More control – Lifetime support (i.e. guardianship of estate avoidance) – Creditor protection to beneficiaries – Simpler, sometimes much cheaper (ancillary probate_, can be more flexible – Private versus public

Advanced Planning Durable Financial Power of Attorney Medical Power of Attorney Advanced Health Care Directive (i.e. Directive to Physicians) Declaration of Guardian in event of need Declaration of Guardian for minors HIPAA Authorization Life Insurance, beneficiary designations DNR, donation of organs, affidavit of heirship for motor vehicles Special-needs Trusts

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