Category Archives: Wills & Estates

Who Can Be Executor of My Estate?

After you pass away, your will or the probate court designates an individual to manage your estate. The individual who fulfills this role is called the executor or administrator. If you create a will, you are likely to designate a trusted individual to carry out your last wishes. If you die without a will, the probate court takes on the task of designating an executor.

Upon death, an individual is referred to as a “decedent.” The executor of an estate is responsible for identifying and collecting the decedent’s assets and paying the decedent’s debts. Additionally, the executor must distribute the remaining estate according to the decedent’s will or, if no will exists, according to Texas intestacy laws.

Generally, individuals who create a will (testators) select a trusted family member to function as the executor after the testator passes away. Often, this is a spouse or adult child. You should take into account an individual’s capacity to handle the responsibilities of an executor, especially at a time when the individual may be grieving.

Under Texas law, an individual executor must be at least 18 years of age. Texas law also allows testators to designate a business entity such as a bank or law firm to act as an executor. In addition to the individual age requirement, an executor must qualify to act as an executor under Texas law. In Texas, certain individuals and entities are legally disqualified from serving as estate executors. Incapacitated individuals, convicted felons, nonresidents of Texas (unless an in-state agent is appointed), and corporations not authorized to be fiduciaries in Texas are disqualified from acting as executors. Additionally, a court may disqualify any individual or entity it deems “unsuitable” to act as executor.

An experienced San Antonio wills attorney can work to make sure your end-of-life wishes are carried out.

What if I Die Without a Will?

A will is a very valuable document that helps your friends and loved ones distribute your property after you die. The value of a will is in its ability to help your loved ones distribute your property according to your wishes. What happens to your property if you die without creating a will?

If you create a will, you are referred to as the “testator.” Individuals who die without a will are considered to have died “intestate.” The property of those who die without a will is distributed according to Texas intestacy laws. Intestacy laws follow a strict formulaic approach to property division and do not account for individual circumstances and desires.

If you die without a will, a court assigns an executor to handle the distribution of your estate. The court’s choice of an executor may not be the person you would have wanted to distribute your property, but since you had no will, you have no say in the matter. Property is divided based upon your marital status at death and whether you have surviving descendants.

The general intestacy laws below apply to most situations, but in some cases, property division can become very complex. Usually, if a person dies unmarried and without children, the estate passes to the surviving parents. If the parents are deceased, the estate passes to the siblings or their descendants. If a person dies unmarried, with children, the children or their descendants receive the estate. If the person dies married, any community property passes to the surviving spouse if there are no children or if all of the children are also children of the surviving spouse. Otherwise, the surviving spouse receives half of the estate and the children split the remaining half. If the deceased had separate property, the division of the estate differs based upon whether the deceased had children. In some situations, an estate “escheats” or transfers to the state if no qualifying relatives survive.

A knowledgeable San Antonio wills attorney at the law firm of Joseph P. Appelt can help you draft a will to ensure that your wishes are fulfilled.

Singles Estate Planning

A common misconception is that estate planning is only for married people and families.  That is simply not true and, because nearly 47 percent of the adult population is single, it’s more important than ever to consider estate planning for singles.

Making estate plans is vitally important if you are a single person, and your planning will differ in many ways from planning for married persons. Further, if you are a single baby boomer, your financial strategies will be different than those for younger single people.  Here are some planning tips for single persons:

  • Plan to leave your assets in a way that you want.  If you don’t make a plan, the state has a default plan for you that won’t be customized at all.  You might have certain family members that you want to receive your assets, but if you don’t plan for certain people to receive certain of your assets, it may not happen.  Those people or charities probably won’t receive your assets because the state’s default plan will not take into account your own personal preferences.
  • Plan for incapacity. A medical power of attorney and a financial power of attorney make sure that your wishes are carried out during periods of incapacity.  These documents are very important for a single person because there is no spouse to make these decisions if you become incapacitated.  These documents allow you to appoint someone you trust to make these decisions for you.
  • Plan for retirement.  If you are nearing retirement age, try to remain employed as long as possible to increase retirement savings and Social Security benefits.  If you are younger, put aside as much money as you can each year into a 401k or other retirement savings vehicle.  People of all ages should also consider purchasing long-term care and disability insurance.

Calling an experienced San Antonio wills and estates attorney today will help get these plans in place so that you can coast into your golden years.

Considerations for Drafting Your Will

Drafting a will can be a complex and daunting task for most people and, because of that, most people put it off for years. Your wills and estates attorney can help guide you through the process with ease, but here is a primer on items you should be thinking about before drafting your will:

  • Name the people who will inherit your property — Most people choose their spouse and children to inherit property, but if you have neither, name other family members or friends. You should also choose an alternate beneficiary in case your first choice doesn’t survive you.

  • Name property — Your lawyer can help you decide which property to include in your will and what items to leave out because some assets, like life insurance and retirement accounts, transfer outside of your will. But you should start compiling a list of all of your major assets.

  • Name an executor — Start thinking of someone who could serve as executor to carry out the terms of your will. Talk to this person ahead of time to make sure they are willing to serve in this capacity.

  • Name a guardian for your children — If you have minor children, start thinking of a guardian and alternate guardian who could step in and raise your children in the event that something happens to both you and your spouse. Make sure that these people are willing to take on this very important role.

Once you’ve made these decisions, your trusted San Antonio wills and estates attorney can help you finalize your will and make sure that it complies with Texas law.

Do You Need a Living Will in Texas?

None of us likes to think of a time when we might become incapacitated and unable to make even the most basic decisions. However, the old Boy Scout motto, Be prepared, is an excellent idea. Those who prepare ahead of time for unpleasant life events are ultimately better off, as are their families.

A living will, or a directive to physicians, is a document that clearly defines the types of medical treatment you would like to receive or not receive in certain situations. It can, for instance, instruct your doctors not to use artificial means to extend your life if you are diagnosed with a terminal condition. A related document is a medical power of attorney. This names a trusted person, called your agent, to direct your health care if you are unable to do so yourself. Most people name a spouse, partner, relative or close friend to serve as their agent.

In Texas, it is strongly recommended that citizens have a living will and medical power of attorney. Why? Because if you become incapacitated and unable to make your own medical decisions due to an illness, accident, or old age, these documents can help save your life or ensure that your wishes are followed. If you haven’t recorded your wishes regarding these matters, these decisions will be made by family members you may not want making those decisions, or by doctors or even judges. They make decisions based on what they believe to be best, not what you want.

If you are a competent adult, you can execute a living will in the presence of two disinterested witnesses or a notary public. The living will takes effect when you become a qualified patient, meaning when you become diagnosed with a terminal or irreversible condition that is certified in writing by your attending physician.

No one lives forever, much as that thought may make us uncomfortable. It is best to consult a family law attorney to draft your living will and related documents in order to be prepared before you actually need them.

What Happens to Your Facebook Account If You Die

If you’re like most young people, you spend at least some time on Facebook. You curate wonderful photos and share your activities with your friends, even perhaps posting what you had for dinner. Have you ever stopped to think what would happen to your Facebook account if you die?

Many states have proposed legislation that would determine who controls your social media accounts when you die. For instance, a social media bill in New Hampshire proposes to give the executor of a deceased person’s estate control over the social media and electronic communications accounts of the deceased person.

Currently, the various social media and electronic communication companies all have different rules governing what happens in the event of the death of a member. For instance, Facebook has a policy of either deleting the account or memorializing it once it receives notice of a death. The memorial page remains active only to allow friends and family to post comments on it. Critics point to the fact that the deceased member’s family does not have any control over the site. Such sites are often targets of cyber-bullying, which only adds to the grief of the family.

Until the social media companies either take action, or are forced to by legislation, the best that social media account holders can do is to make plans to transfer ownership of these valuable accounts to heirs, just like any other asset. Your estate planning lawyer can help you prepare an addendum to your will listing all of your social media and electronic communication accounts and correspondingly list the names of the persons you want to bequeath those accounts to. You can pick different people for different accounts. It’s best to provide the passwords to those accounts as well.

It’s important to plan for the transfer of these accounts upon your death. After all, you wouldn’t want your precious memories to fall into the wrong hands or worse yet, get deleted.