Conroe Will Preparation Lawyers

Preparing final instructions can be a daunting task. While the subject matter is unpleasant, it is nonetheless inescapable that we all die and leave behind loved ones who are responsible for finalizing the issues surrounding our death. Those who choose not to make final preparations leave behind a myriad of problems and traps for loved ones and friends. Proper estate planning can make administering your property after death much easier for those involved in doing so, while ensuring that your final wishes are duly considered. An experienced Conroe will preparation lawyer will be able to provide you with options sufficient to instruct those left behind how to distribute your property in the manner and to whom you have chosen. Failing to have a valid Will ensures that the State will dictate how your property is disbursed. Do not make the mistake of letting the State dictate how your property is distributed and to whom.

One of the fundamental tenets of any type of planning, estate or otherwise, is that one must “hope for the best but prepare for the worst.” Simply put, this means that we never know when “our time” will come, but we need to be prepared for it anyway. A good way to do this is to seek professional help while considering your final wishes. A Spring estate planning lawyer at Garg & Associates is able to assist you in establishing a plan for the distribution of your estate and keeping the process simple by having as little court interference as possible. This allows for those left dealing with your estate to have safeguards in place that protect your final wishes and streamline the process of moving forward after you have gone. One of the basic building blocks of estate planning is the Will. No matter how large or small your estate, a Will is a necessity that simply cannot be overlooked.

A Spring estate planning lawyer at Garg & Associates is able to draft a Will that is custom to your unique circumstance. All you need to do is contact a Garg & Associates lawyer and set an appointment to discuss your particular situation.

The Will – The Basics

The Will is the best-known vehicle for estate planning as it has many advantages. In its most basic form, a Will sets forth who gets your property, how your final remains are treated and the method and manner of payment of outstanding debts, if any. A properly-executed Will eliminates confusion and reduces the inherent stress that comes with saying good-bye to a loved one. A valid Will provides those dealing with your estate a clear roadmap by which to travel as your final wishes are carried out.

There are several requirements that must be met in order for a Will to be given its intended force and effect. For instance, a person signing a Will, the Testator, must be of “sound mind” at the time the Will is signed. Sound mind can be best defined as the requisite mental capacity to understand and appreciate the nature and characteristics of his or her property and the ability to appreciate the identity of the person(s) to whom he or she is leaving property. Moreover, it must be obvious to others that the Testator possesses a sound mind at the time the Will is executed. When a probate court considers the validity of a Will, the Will must be clear in its language that it was intended to be the final disposition of the Testator’s assets and property. A valid Will must also be signed by someone who is at least 18 years old. The Will must also be signed by two credible witnesses who are over the age of 14, and they must sign the Will in the Testator’s presence and be able to attest to the Testator’s sound mind. A “self-proving” Will has special language in it that allows for the signatures of the witnesses to be authenticated so that the witnesses do not need to give testimony during the probate procedures concerning the authenticity of the Testator’s signature. This is especially helpful if the Will being probated is old or was drafted while the Testator lived in another state since finding the witnesses in order for them to testify would be most difficult in those circumstances.

Often there are misconceptions about what exactly constitutes a Will. The essence of a Will is that it is an instrument which is testamentary in character, revocable during the lifetime of the Testator and operative at the Testator’s death. Thus, an instrument that is irrevocable cannot be a Will. Also, it is a common misconception that in order for a Will to be official or valid, it must discuss how property shall be disposed of at death. This is not a legal requirement of a Will. Additionally, instruments that are operative during the testator’s life cannot be a Will since a Will must only take effect at ones death. Texas law recognizes three types of Wills: attested Wills (signed by Testator, and two witnesses in the Testator’s presence), holographic Wills (handwritten, signed by Testator, but not witnessed) and oral Wills (valid only for personal property and if made during Testator’s last illness).

A Will can be altered without the necessity of a re-write. A codicil is a later testamentary instrument that alters, amends, or modifies a previously executed Will. A codicil must be executed with the same testamentary formalities as a Will. In the state of Texas, it is possible to have a holographic codicil to an attested Will, and it is possible to have an attested codicil to a holographic Will.

A Will can also be used in conjunction with a Trust. This type of Will is commonly called a “pour-over” Will since the function of this instrument is to “pour-over” into the Trust all property not specifically addressed in the Will. The practical effect of a pour-over Will used in conjunction with a Trust is to limit or eliminate the need for probate: further simplification of carrying out your final wishes. Adjuncts to a Will are advanced directives. Unlike a Will, an advanced directive operated while you are still alive.

Advanced Directives

In Texas, it is commonplace to have other documents called “Advanced Directives” prepared along with the Will such as a Statutory Durable Power of Attorney, a Medical Power of Attorney for Health Care, and a Directive to Physician and Family or Surrogate. The Statutory Durable Power of Attorney is a document that is intended to take effect in the event that a person becomes incapacitated and is unable to manage his financial and/or medical affairs. This document allows for an “attorney in fact” to step in and handle your affairs temporarily as need be. The powers allowed for in this type of document are broad and sweeping and special care needs to be exercised when choosing your attorney in fact since that person will have all the power that you would in any circumstance.

A Medical Power of Attorney for Health Care has the same procedural effect as a Statutory Durable Power of Attorney, except it speaks to medical care only. The practical effect of this document is that, while incapacitated, your designate has the authority to direct your medical care such as authorizing invasive procedures and other types of treatments that you are incapable of authorizing due to your incapacity.

A Directive to Physician and Family or Surrogate is utilized as a tool to express your wishes in advance with respect to medical treatment when you are close to death – for example, whether you would like to die a natural death, or whether you would like to be kept alive by artificial means, and for how long. Advanced Directives are useful primarily because no court intervention is required, as your wishes will be formalized just as in a Will. The primary benefits of Advances Directives are that your wishes are carried out even when you cannot express them and the guesswork on the part of friends and relatives is removed from the equation when your loved ones are attending to your needs

Trusts – The Basics

A trust creates a fiduciary relationship between a Trustor or Settlor (the person who creates the trust) and a Trustee (oftentimes, the Trustor/Settlor and the Trustee are the same person). The Trustee holds legal title to specific property (could be land, money, etc.) under a fiduciary duty to manage, invest, safeguard, and administer the Trust assets and income for the benefit of designated beneficiaries, who hold equitable title. If a mother, for example, wanted to leave a gift for her child during her lifetime, she could give the property to her child outright, or she could create what is called an inter vivos trust (which means that it was made during the Testator’s lifetime) for the child’s benefit. Let’s say a father wanted to leave property for one of his children by Will, he could bequeath the property outright to the child, or he could create what is called a Testamentary Trust (which means that it was created by Will) for the child’s benefit. Rather than giving a gift outright, giving a gift through the utilization of a Trust is especially advantageous if the beneficiary is a minor, physically or mentally incapacitated, or not experienced with money management. The corpus of the Trust (the property) does not have to be vast for a Trust to be beneficial.

There are three different types of Trusts recognized in the state of Texas: Express Trusts, Resulting Trusts, and Constructive Trusts. Trusts are categorized according to the manner in which they are created. Express Trusts arise from the expressed intention of the owner of property to create a Trust with respect to the property; Resulting Trusts arise from the presumed intention of the owner of property; and Constructive Trusts have nothing to do with intention but rather constitute a useful equitable remedy in cases involving fraud and unjust enrichment.

Overall, there are a multitude of issues with regards to Wills, Trusts and Advanced Directives, and to make sure that you are doing everything you can during your lifetime to prepare for what will happen after you have passed, contact a Spring estate planning lawyer at Garg & Associates today to get this process started and to protect the future of those you love.

Please contact our office to see how we can assist you. Learn more about our Areas of Practice.

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Garg & Associates, PC | 21 Waterway Avenue, Suite 300 | The Woodlands, Texas 77380 Please call 281-362-2865 | Fax: 866-743-4506
Serving The Woodlands, Spring, Houston, Conroe, Kingwood, Tomball, Cypress, Huntsville, Cleveland, Stafford, Montgomery County, Harris County, West Oaks, Memorial, Sugar
Land, River Oaks, Alief, Stafford, Missouri City, and Southwest Houston Texas.