"A will should address and enforce your particular circumstances and desires, which are two things that you do not want a group of strangers in a courtroom to decide for you.”
--Joe House, Founding Partner
The rules which courts apply to testamentary property differ greatly from those applied to non-probate property. That is to say, property subject to devise or bequest in a will is governed by the Texas estate law, along with its many exceptions and specific applications. Conversely, non-probate property is often governed by the rules of contract and as such, is governed very differently and by another body of law entirely. The importance of knowing which law applies to what property and to what extent is crucial to successfully carrying out one’s testamentary wishes.
General concerns and common questions regarding wills and trusts:
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Alternatives of formal administration to consider:
Handling creditors of the estate upon probate:
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Where an individual dies “intestate,” this means that the person has no will, or that the will was not validly formed under the Texas Probate Code. Boilerplate intestate rules are then applied to the estate of the decedent and an allocation of assets is made to the surviving family members, regardless of the intent or wishes expressed in the failed will. This situation may lead to unfortunate and undesired consequences, such as wrongful allocation.
The Texas Constitution and statutes provide for a considerable amount of personal and real property to be protected from all but a select few creditors. However, these rules are detailed and expansive, making it difficult to determine what specific property is covered and what is not. Moreover, the scope of protection under these rules has expanded in recent years such that property once excluded may now be included. Knowing what property is protected and which property is susceptible to creditors is critical for prudent estate management.
Trusts are important legal tools if created properly. When creating a trust it is necessary to analyze the potential application of the following to determine the best choice for your specific needs:
Revocable trusts versus irrevocable trusts
Charitable trusts
Spendthrift trusts
Qualified Terminable Interest Property “QTIP” trust
Designation of Successor Trustee
Concerns regarding multiple trustees
Powers of a trustee
Trust insurance and prudent investment requirements
Trustee duties
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