FAQS

  • Do I need a will?

    Yes, to make sure that your property goes where you want and to simplify the handling of your estate for your heirs. A properly executed Last Will and Testament assures that your property passes to the loved ones exactly as you want. In Texas, a will may be made simply by writing it in your own handwriting and signing it, but it is safer to use an attorney to draft your will and supervise its execution to insure its validity.

    What is an heir, testator, and executor?

    An heir is a person entitled to inherit from someone who dies without a will. It is often used more casually to include people who inherit under a will.

    A testator is the maker of the will. He/she determines how and to whom the estate will pass.

    The executor is named by the testator in the will to handle the estate after death. The executor is entrusted with paying debts, collecting property, and disbursing it according to the terms of the will.

    What happens if I die without a will?

    If you die without a will, the State of Texas basically writes one for you. Property of Texans who die without a valid will passes to their heirs according to Texas law. This process requires what is known as an heirship determination, which will typically cost your heirs more in fees than the simple probate of a will.

    What is probate?

    A will does not take effect until it is found to be valid by a court. After you die, upon application and proper proof, a probate court will sign an order probating your will, finding that it is your last will and recognizing it as valid and binding.

    Where are wills probated?

    In Texas, wills are generally probated in the county where the testator resided. The county clerk for the county of residence handles the filing of wills.

    The Dallas County Clerk's office is located downtown at 501 Main Street in the Dallas County Records Building close to the West End. The probate department is on the second floor of the Records Building.

    The Tarrant County Clerk's office is located in the Old Tarrant County Courthouse at 100 Weatherford in the north section of downtown Ft. Worth.

    The Denton County Clerk's office is located in the Courts Building at 1450 E. McKinney St. in downtown Denton.

    The Collin County Clerk's office is located in the University Courts Facility at 1800 N. Graves St. in McKinney.

    What if my county does not have a Probate Court?

    Probate in smaller counties is typically handled by county courts at law or the county judge.

    Who can make a will?

    Anyone who is 18 or older, married, or a member of the military and is of sound mind.

    Who can probate a will?

    An executor named in the will or an interested person can file an application to probate a will.

    Can you remove an executor or administrator?

    Yes. Common reasons to do so are the failure to account, mismanaging the estate or the failure to distribute funds.

    When can I contest a will?

    A will can be contested before probate, or within 2 years after it is probated. There are some exceptions that allow this period to be extended.

  • Who can create a trust?

    The same rules regarding who can make a will apply. Anyone who is 18 or older, is married; or is a member of the military and is of sound mind.

    Can you remove a trustee?

    Yes. Common reasons to do so include violating the terms of the trust, failure to account, and breach of fiduciary duty.

    How is a trust created?

    A trust can be created in a few ways. For example, a trust can be created by executing a trust agreement. Another way is by setting up a trust in your will (a "testamentary trust"). In either case, the Settlor, who sets up the trust, enters an agreement with the trustee to hold property for the benefit of others or even for the Settlor. The terms of the trust can vary and there is no one way to do a trust. Property transferred to a trust continues to stay in the trust unless it is distributed to a beneficiary or the trust is terminated for one reason or another.

    What are fiduciary duties?

    Fiduciary duties are certain duties that a person owes another person with regard to property or transactions. Trustees owe fiduciary duties to beneficiaries of a trust. An agent under a power of attorney owes fiduciary duties to the principal under the power of attorney. Examples of fiduciary duties are a duty to disclose actions, a duty to do what is best for the beneficiaries, a duty not to take actions to benefit you instead of the beneficiaries.

    How can I contest the validity of a trust?

    Contesting the validity of a trust is very similar to contesting the validity of a will. You can contest based on execution issues, undue influence, and incapacity. If the trust is a testamentary trust, you contest the trust by contesting the will.

  • What is a guardianship of the person?

    A guardian of the person is appointed by a court to make day to day decisions regarding the ward's person including residence, clothes, food, and medical decisions. Most situations require both a guardian of the person and estate. Typically one person will be guardian of both the person and the estate, but each position can be a different person.

    What is a guardian of the estate?

    A guardian of the estate is appointed by the court to make financial decisions for the ward and to manage the ward's properties.

    When is someone found incapacitated?

    An incapacitated person is a minor, or an adult who is substantially unable to function without the assistance of another person to handle healthcare and financial decisions.

    Who is the ward?

    An incapacitated person who is cared for by a guardian under court supervision.

    Can you choose your own guardian?

    You can sign a designation of guardian listing who you prefer to be your guardian if the need arises. The court is not bound by this designation, but is required to consider your choices in appointing your guardian.

    Is a guardianship permanent?

    A guardianship will last as long as the ward remains incapacitated.

    What do I do if there is an emergency?

    If there is an immediate necessity for a guardianship due to a threat of harm to the ward or the ward?s property you can apply for a temporary guardianship. These last 60 days and give a party time to gather necessary information. They are only created in extreme situations.