The Reecer Law Firm

Texas Estate Planning & Probate Law

Archives for November 2022

What Are the Duties of an Executor of an Estate?

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If you are named in a will as the executor of an estate, Texas law imposes upon you certain responsibilities. One of those responsibilities is to hire an attorney to guide you through the process. This is because as executor, you represent the interests of both beneficiaries and creditors, and only a licensed attorney can represent the interest of others.

There are exceptions to this rule which your attorney will discuss with you. Briefly, one exception is if you are the sole beneficiary.

Executor

Responsibilities of the Executor of an Estate

Specific responsibilities imposed by Texas law include:

Notifying the beneficiaries of the decedent’s death. If they cannot easily be located, you may need to put a notice of death in newspapers.

Locating and inventorying assets. This includes locating:

  • Personal property such as vehicles, boats, checking accounts, jewelry, antiques, safe deposit box contents, and others.
  • Financial holdings. Retirement accounts, stocks and bonds, investment accounts.
  • Real estate the decedent owned in Texas and any real estate the decedent owned in another state.
  • Businesses owned by decedent or owned in partnership with others.

You must inventory the assets and the value each asset at the time of the decedent’s death. This document must usually be filed with the court.

Paying decedent’s debts and taxes. All creditors must be given notice of the death and the opening of probate. Creditors can file a claim and the executor has a duty to verify it is a legitimate debt. If so the debt must be paid.

Tax returns must be filed, the Social Security Administration notified of the death, and all credit cards must be canceled.

You also have a duty to identify estate property that is exempt from creditors and set it aside for the beneficiaries.

Recognizing priority rights. Spouses and minor children have rights which may include payment of an allowance while the estate is being probated.

Distribution of assets. After all other duties have been fulfilled, you then distribute the assets to the beneficiaries according to the terms of the will.

In fulfilling your duties as an executor, keep in mind at every step of the way, you have a fiduciary duty to preserve assets and to act always in the best interest and with loyalty to the beneficiaries.

Contact The Reecer Law Firm PLLC for Assistance

This is just an overview of the responsibilities of an executor. Depending on the will and the size of the estate, there may be other responsibilities you must fulfill as the executor.

Dena Reecer, founder and owner of The Reecer Law Firm PLLC, is one of just a few Texas attorneys who are Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization. Contact the firm for more information about your responsibilities as the executor of an estate.

Do I Have to Hire an Attorney to Probate a Will?

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Probate is the process where a decedent’s will is submitted to the probate court that first determines the validity of the will. Then, the court oversees the payments to creditors and makes sure the decedent’s wishes, as expressed in the will, are followed. Texas law specifically provides that “a will is not effective to prove title to, or the right to possession of, any property disposed of by the will until the will is admitted to probate.”

Why You May Need an Attorney to Probate a Will

Texas courts are divided. Texas courts are divided on the issues of whether an executor of an estate or personal representative can represent themselves or whether only an attorney can represent the estate. In most Texas courts, you need an attorney.

Hire an Attorney

Only an attorney can represent the interests of others. You need an attorney because Texas law also prohibits a non-attorney from representing the interests of anyone in court but themselves. A will generally has beneficiaries other than the executor or personal representative. If the executor or personal representative files pleadings on behalf of the beneficiaries without the assistance of counsel, it amounts to the practice of law without a license, which is against Texas law.

Probate can be a complicated process. Additionally, probate can be a complicated process that can take up to a year or more to complete. If anyone contests the will, complex legal issues will be involved that require the attention of an experienced probate attorney who knows how to defend the will against challenges by beneficiaries or by those who were left out of the will and challenge that omission in court, believing the omission was a mistake.

In a routine probate, with no issues of validity and with no challenges by beneficiaries, there are still complex legal terms and procedures that must be followed that are difficult for a non-attorney to understand and follow.

Contact the Reecer Law Firm PLLC for Assistance

Dena Reecer, founder and owner of the Reecer Law Firm PLLC, is Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization. If you are the executor of an estate or personal representative, contact the law firm for more information about how the attorneys can help you in probating a will.

What is a Living Will?

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A Living Will, also known as an Advance Directive, is a document you create that gives direction to your family and health care professionals about the medical treatment and procedures you want under certain circumstances when you cannot make healthcare decisions for yourself. Your Living Will is part of your estate plan and will be drafted by your estate planning attorney.

Difference between a Medical Power of Attorney and a Living Will

With a Medical Power of Attorney, you give someone you trust the power to make medical decisions for you when you are unable to make them yourself.

Wills

With a Living Will, you are the one who gives instructions to medical personnel about what care you want if you become incapacitated. Your doctors must legally follow the instructions you have given in your valid Living Will. Family members cannot interfere and must accept the care you have requested.

To be valid in Texas, you must sign the document in the presence of two witnesses who also sign the document.

How a Living Will Works

A Living Will is generally used when the signor does not wish to be kept alive by artificial means when they are in a permanent vegetative state with no likelihood of recovering. Instead, the signor directs their medical care team to keep them hydrated and free of pain, but to allow them to die naturally without a feeding tube or life support.  A Living Will is NOT a Do-Not-Resuscitate Order (“DNR”).  A DNR is a document that is signed by either the principal or a medical agent to direct healthcare providers not to engage in cardiac resuscitation at end-of-life situations.  Contact the Reecer Law Firm PLLC for Assistance

Creating a Living Will (Advance Directive) is complicated. There are many things to consider when you are instructing medical personnel about the treatment you do or do not want.

For assistance with this document, or any other aspect of your estate planning, contact our attorneys at The Reecer Law Firm, PLLC. You may also call (940) 382-3168.

Dena A. Reecer, principal and founder, has been Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization since 2008 and has decades of experience in helping clients with preparing documents designed to carry out their final wishes.

How Often Should I Revise My Will?

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Every adult who has an ownership interest in anything of value should have a will. This is true no matter how old or how young you are. Life is uncertain and unfortunately, no one knows which day will be their last.

If you have a will that expresses how you want your assets to be distributed, it allows a probate court to see that your wishes are carried out. If you do have a will, another issue arises: how often should you revise your will?

Living Will

Revising Your Will When There are Major Life Changes

One consistent recommendation is that any time you experience a major life change, you revise your will, or review your will to determine if you should revise it. Some examples of life changes include:

  • You get married.
  • You get divorced.
  • You have a new child, either by birth or adoption.
  • You experience a financial windfall such as you inherit money, win a personal injury case, win the lottery, etc.
  • You experience a financial loss, such as losing a large sum of money in the stock market.
  • Laws change.
  • You change your mind about a beneficiary.
  • You move to another state. Each state has its own laws about what constitutes a valid will and how many witnesses are required.
  • Your health deteriorates.
  • A grandchild is born.

These are just examples. Any life change should trigger you to think about whether your will needs revising.

Periodic Review of Your Will

Even if you do not think your will needs any changes, it is a good idea to review it periodically. Many estate planning attorneys recommend you review your will every three to five years to be sure it still expresses your wishes.

Life changes can occur at times when you are not thinking about your will. A periodic review will help you be sure that your wishes have not changed and that your will still represents how you want your assets to be distributed.

Contact the Reecer Law Firm PLLC for Assistance

Dena Reecer, founder and owner of the Reecer Law Firm PLLC, is one of a few Texas attorneys who are Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization. If you are considering preparing or revising your will, contact us for more information about how we can help you.

Estate Planning: Do I Need a Trust?

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Creating a trust is often part of estate planning. There are several types of
trusts available and whether you need one or not depends on your own
unique situation.

What is a Trust

Trusts

Black’s Law Dictionary defines a trust as “a right of property, real or personal, held by one party for the benefit of another party.” Trusts serve many purposes and may be created so there are tax savings for you, the creator of the trust, and your beneficiaries.

When you create a trust, you transfer ownership of your assets to the trust.
For example, you change the deed to your home from you, John Doe, as
the owner of the property to “The John Doe, Trustee of the John Doe Living Trust” as the owner. You do this with all property you want to have managed by the trust.

You appoint a trustee in charge of managing the trust and ensuring your assets are distributed at your death to your beneficiaries according to the terms of the trust. You may name yourself as the Trustee to manage the trust during your lifetime, and you may wish to name another person or corporate entity to act as trustee upon your death. There are many types of trusts that can be established depending on your individual needs and goals.

Major Advantages of Trusts

There are many advantages to having a trust, particularly for individuals who own real estate, those who have minor children, and those who have children from previous marriages. Some specific advantages are:

  • Avoid probate. The assets are immediately distributed to the beneficiaries according to the terms of the trust. This means no probate costs and fees and no lengthy wait for the probate court to approve distribution.
  • Reduce taxes. Depending on the structure of the specific trust, there are generally substantial tax savings for you during your life and for your beneficiaries after your death.
  • Privacy. Probate court is open to the public. Property in a trust is transferred privately to the beneficiaries.

These are just a few reasons why you may want to create one or more trusts as part of your estate planning.

Contact the Reecer Law Firm PLLC for Assistance

Dena Reecer, founder and owner of the Reecer Law Firm PLLC, is one of a few Texas attorneys who are Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization. If you are considering drafting any type of trust, contact one of our trust attorneys for more information about how we can help you.