→ I have been sued / my company has been sued. What do I do now?

You need to speak to a lawyer immediately to determine your rights and obligations. Typically, if sued in a Texas state court, you have approximately 20 days to answer a lawsuit or you may be considered in default and a judgment can be entered against you in your absence. If your company has been sued, Texas law requires that you are represented by an attorney. An attorney can evaluate whether you have been served properly with the lawsuit and what responses you should make. There are some responses that must be made first or they are waived. Our firm will quickly evaluate what must be done and find the best resolution for you and/or your company.

→ I / my company has an unresolved dispute with someone. What are my options?

There are several options we can explore to attempt to resolve your dispute short of litigation. Sometimes, a letter from a lawyer can get the matter resolved. Other disputes might be amenable to pre-suit mediation. Our firm is experienced and comfortable in the courtroom, but we also know that resolving disputes and avoiding court is many times the more practical goal.

→ How long does it take to go to trial?

You should expect to wait up to a year or more before your case is reached for trial. Even then, parties can request continuances of the trial date or the court can move the date. In addition, COVID-19 has created a backlog in cases, particularly jury trials, although that is beginning to improve.

→ Is arbitration better than court?

Not necessarily. The initial idea of arbitration was to create a more streamlined adversarial process that was quicker and cheaper. However, that is not always the case.

→ Can estate plans be revised or updated?

In most instances, yes, and they should be revisited as life-changing events occur, such as the birth of a child, grandchildren, marriage/divorce, or significant financial or tax changes. We can do a “check-up” of your existing documents to advise whether any changes are needed.

→ What happens if someone does not have a medical power of attorney or durable power of attorney and he or she becomes incapacitated?

Depending on the circumstances and the needs of the individual, there may be various options available, including the appointment of a legal guardian. In the event that an individual becomes incapacitated and can longer care for herself or manage her financial affairs, a court may appoint a legal guardian to do so on behalf of the incapacitated person (also known as the “ward”). A guardian of the estate is responsible for managing the property and financial affairs of the ward. A guardian of the person is generally responsible for providing care, supervision, food, clothing, and shelter for the incapacitated person, and may also consent to medical treatment on her behalf. An individual may be appointed either guardian of the person or guardian of the estate, or both, depending on the needs of the incapacitated person.

An individual may pre-designate a guardian of the estate and a guardian of the person in the event of incapacity by completing a Designation of Guardian in Advance of Need.

→ What is a living trust? Do I need one?

A living trust is a revocable trust. Many people believe they need a living trust in order to avoid probate. While a living trust can be used to avoid probate, because the probate process can be relatively straightforward in Texas if a Will is properly drafted, there is usually no need to avoid probate unless you expect someone to contest your Will. Other reasons to set up a living trust include if you own property in another state, you have a taxable estate ($12.06 million in 2022), you wish someone else to manage your assets (in case of incapacity, for instance), or you have a need for privacy. Revocable trusts also enable you to more tightly control the distribution of your assets following your death. Property in a living trust does not avoid estate taxes.

→ Can I Use Legal Software to Prepare My Will?

You can, but by doing so, you run the risk that your estate will not be handled according to your wishes. There are many risks associated with “Do-It-Yourself Wills and Estate Planning.” Texas has very specific requirements concerning wills. If a will does not comply with all these requirements, it can be declared invalid, meaning that your estate could be treated as though you never had one.

By doing your own estate planning, there is a chance you could misapply the law, use the wrong form, or prepare it incorrectly. Additionally, the one-size-fits-all character of a do-it-yourself plan does not take into account each individual’s unique circumstances, and, consequently, each of their individual estate planning needs.

The benefit to hiring a lawyer is that lawyers have the knowledge and experience to assist in planning for the future and the unknown ahead. Lawyers help to evaluate potential paths that appear to be solid today but can become a nightmare for heirs in the future. Each state has its own probate laws, and a lawyer may raise issues that you might not have considered. This is especially true for matters of guardianship for minor children. Software and other DIY tools cannot provide legal advice. These products provide disclaimers that the services are not a substitute for attorney advice. Software programs cannot review your answers for legal sufficiency, draw legal conclusions or advise you of the law based on your particular situation. The Texas Legislature passed major changes to the Texas Probate Code, now the Texas Estates Code in September 2013. DIY products do not guarantee that the information is correct or updated.

→ What happens if a loved one dies without a Will?

When a person dies without a Will, Texas law determines who will receive the deceased individual’s assets. Probate options when there is no Will include:

• Small Estate Affidavit

• Determination of Heirship

• Court Created Independent Administration

• Dependent Administration

• Affidavit of Heirship

Various circumstances, including the size of the estate and the amount of debt owed by the estate, will determine which of the above is the best probate option.

→ Is There a Time Limit to Probate a Will?

Texas probate law is very specific about the statute of limitations that stipulate the time limits for probating a will. There may be alternatives for wills that have expired. The statute of limitations for a will is 4 years.

Even though the statute of limitations may have expired, individuals can still request to have a Determination of Heirship or have the will admitted as Muniment of Title which allows the Texas probate court to evaluate which successors should receive distributions, and how much.

→ What Are the Different Ways to Probate a Will in Texas?

Before outlining the steps of how to probate a will in Texas, it’s important to understand the distinction between the different types of probate. There are several.

Independent administration: This process is the usual route when a decedent had a valid will that names an executor for the estate. With an independent administration, the executor has more freedom to carry out their duties without strict oversight by a probate court. With this type of probate, another key distinction is that the executor is not required to post a bond or insurance policy for the estate.

Dependent administration: When someone has died without a will, Texas probate law typically requires that the estate falls under a stricter oversight by the court, known as dependent administration. The administrator is required to post a surety bond, seek court approval for every step in the process of distributing an estate, and file detailed reports every year with a Texas probate court regarding the estate.

Muniment of Title: Another process by which you can probate a will in Texas is the relatively inexpensive and simple process known as Muniment of Title. This process can be utilized when a valid will exists, the estate has no debts except secured real estate, and Medicaid has no claims against the estate to recover benefits the decedent may have received. With Muniment of Title, the court must determine that there’s no need for a probate administration and admit the will into probate as a muniment (or evidence) of title to the assets of the estate. Upon acceptance by the Court, the Will is entered into the Probate Records of the County. Certified copies of the Will and Order are then recorded in the real property records and are, thus, sufficient to pass title to probate property.

Small Estate Affidavit: When a decedent has no will and the value of his or her estate is $75,000 or less, the beneficiaries of the estate can file a Small Estate Affidavit (sworn statement) to collect the property without going through the probate process.

→ When Is Probating a Will in Texas Not Necessary?

While most people will experience the process listed above in the probate of a loved one’s estate, there are some who can avoid this process in specific circumstances.

The following are considered non-probate assets in Texas and can be transferred to the designated beneficiary without probate:

• Property that is held as joint tenancy with right of survivorship

• Community property held also with right of survivorship

• Bank accounts that are payable on death

• Funds from life insurance policies

• Survivor benefits that come from an annuity

→ Are the heirs or beneficiaries responsible for the deceased person’s debts if there are insufficient assets in the estate to pay the debts?

No. Only assets in the deceased person’s estate are responsible for the deceased person’s debts.

→ What does a Texas probate court require the executor to do?

An executor is required to file an application to probate the will with the court, published in a newspaper notice to the deceased person’s possible creditors (even if no creditors are known to exist), give notice to the Will’s beneficiaries that the Will has been probated, and give specific notice to those creditors who have a security interest, such as a mortgage, in any of the deceased person’s assets. The executor is also responsible for preparing an inventory of the estate’s assets which, in most cases, is filed with the court.