Wills, Trusts & Estate Planning
HOUSTON WILLS AND TRUSTS ATTORNEYS
Houston Wills & Trusts Lawyers - Safeguarding Your Estate
If you have children, or the desire to leave your estate to a certain person or organization, a will is necessary to effectively achieve your goals. Even if you have no children or are unmarried, a properly drafted will is able to allocate your property as you see fit without having the State dictate the distribution pattern. Without a will, your property is distributed based upon a decent and distribution scheme adopted by the State; and, in the event you leave no heirs or your heirs are not able to be located, your property will go to the State. The Houston Texas Wills & Trusts Attorneys and the North Houston Wills, Trusts, and Estate Planning Lawyers at the Law Offices of Steven Tuan Pham are experienced in designing a comprehensive estate planning package to fit your needs. Our Attorneys will attentively listen to your needs and counsel you on the various estate planning instruments available to you thereby creating an estate planning package unique to your needs. Please feel free to contact our Houston Wills Attorneys and our Northchase Houston Trusts Lawyers at 713-517-6645 should you have any questions or to schedule a personal consultation.
Wills and Trusts
By having a valid will in place at your death, you will be able to designate who gets your property, along with other wishes like guardianship for minor children or final disposition of your remains. A valid will also allows you to designate who will administrate your estate. Texas law allows a testator to designate an “independent executor” who administers your estate independent of most court oversight and can be much less expensive and time consuming than a “dependent administration” whereby the court must approve all decisions relative to administering your estate.
Another benefit of having a will in Texas is being able to attach to the will a “self-proving affidavit.” This document allows your executor to admit your will to probate without having to find the witnesses to the will and have them testify in court. By having a self-proved will, the probate process is streamlined.
Wills and trusts can be used in concert to accomplish your estate planning goals. However, you may not need both. Generally, a trust is put in place to protect assets from liabilities such as creditor claims (during your lifetime or after death) or to govern the distribution of assets held by the trust, while a will simply designates who gets your property upon your death. A will can also include a trust. This type of trust is called a testamentary trust and springs into existence only upon the death of the testator. A testamentary trust is used oftentimes where there are children or disabled individuals who are left assets. A testamentary trust will hold the beneficiary’s assets until a triggering event occurs like reaching the age of majority, graduation from college, or getting married. The specific triggering event can be whatever or whenever the testator chooses. Wills and trusts have provisions for the distribution of property; but, a will only takes effect upon the testator’s death and has no power to distribute property during the testator’s lifetime. A trust, on the other hand, can be drafted to distribute property to beneficiaries while the settlor is still living. This is called an inter vivos trust or a “living trust.”
A trust is an estate-planning vehicle whereby one entity holds and/or distributes property for the benefit of another. The person or entity responsible for distributing the trust assets is called a trustee. The person(s) or entity receiving the trust property is called the beneficiary, while the person creating the trust is called the grantor. A trust can be irrevocable or revocable. An irrevocable trust cannot be revoked and can only be altered through the provisions contained in the trust. A revocable trust can be revoked by the grantor in any manner consistent with the trust language. A revocable trust is oftentimes used when the grantors are a married couple.
Trustees have a special duty called a “fiduciary duty” to the trust beneficiaries. The fiduciary duty is one created by the special relationship between trustee and beneficiary and is not formed by any agreement between them. Fiduciaries are held to a higher standard of conduct and can be criminally prosecuted in the event of breach. Beneficiaries of a trust can demand an accounting of the trust assets from the trustee. By law, a trustee must give an annual accounting of the trust upon demand.
Pour-over Wills
A “pour-over” will is used in conjunction with a living trust whereby the testator’s property is left to the trust or “poured over” into the trust. This type of will can also be drafted to leave specific property to specific individuals outside of the trust. The main purposes of a pour-over will are to make sure that any newly acquired property not in the name of the Trust makes it into the trust even if not specifically accounted for and to avoid certain taxes. Whether you need a pour-over will should be a decision made with the advice of counsel.
Dying Intestate
If you die without a will, you are considered to have died intestate. That means that the State governs how your property will be distributed and not you. Texas statutory law provides the basis for the decent and distribution for property left by one with no will. In short, Texas makes the distribution decisions based upon what it thinks you would have wanted without any input by relatives or close friends. It has been estimated that a large number of persons die without a will every day, as much as 65%.
Perhaps the main reason people have for not getting a will is that they have little or no property. While property distribution may be the prime consideration in a will, there are other important issues that are addressed in a will. For example, in the event a person has minor children, a will can designate a guardian thereby keeping this issue from having to be litigated. Arguably, we cannot predict when and how we will die. If one was to die in a manner that his estate could recover money (defective product or at the hands of a drunk driver), the estate would be distributed per the statue and not per the deceased’s desire.
People have many different reasons for not having a will other than having no property like cost, not knowing the importance of a will, not wanting to invest the time and effort into getting a will drafted, not wanting to contemplate their own mortality, not wanting to deal with a perceived complex issue and some people simply do not want the facts of their life to be revealed. In any event, most of these reasons are not sufficient reasons to die intestate. In any event, it is not the deceased who benefits from a will, but his or her loved ones who are left behind.
Holographic Will
A valid holographic will is one written entirely in the testator’s own handwriting. This type of will is recognized by Texas courts if all statutory requirements are met. One of the essential requirements of a holographic will is that the testator had the mental capacity to understand the nature and bounty of the devise. Additionally, the testator must have drafted the will free from duress or undue influence and free from fraud. A holographic will is invalid if any portion of the will is not drafted solely in the testator’s own handwriting. A holographic will need not be witnessed to be valid. A self-proving affidavit can be attached to a holographic will thereby dispensing with the need for testimony proving the testator’s signature. In the event the holographic will is not self-proved, testimony from two witnesses as to whether the will is in the testator’s handwriting will be considered by the court.
While holographic wills are recognized by Texas courts, there is no need to incur the risk that the will won’t meet legal muster. A will drafted by someone unfamiliar with the law can be filled with error sufficient to defeat the testator’s intentions. A Houston Texas Wills & Trusts Attorney or a West Houston Wills, Trusts, and Estate Planning Lawyer at the Law Offices of Steven Tuan Pham can help you craft a valid will that is able to convey your property and wishes in a manner acceptable by a Texas court.