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Wills: Managing Your Estate. By: Burke C. Marold, J.D ., M.B.A. Marold Law Firm, PLLC – Managing Member. A Philanthropic Minded Law Firm ®. TX Default Rules. Texas Rules of Intestate (dying without a Will) Unintended (or intended?!) consequences

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Wills managing your estate

Wills: Managing Your Estate

By: Burke C. Marold, J.D., M.B.A.

Marold Law Firm, PLLC – Managing Member

Tx default rules
TX Default Rules

  • Texas Rules of Intestate (dying without a Will)

    • Unintended (or intended?!) consequences

    • Confusion, controversy, &/or loss of security

    • Irresponsible

    • More court oversight

    • Greater cost of time and expense

Intestate court process
Intestate:Court Process

  • Application to court to determine heirs

    • Unintended results?

    • Need for witnesses and other proof

  • Application for appointment of Admin.

    • Waivers and consents

    • Risk of falling into a dependent admin. = > $$

Real life example i
Real life example I

  • “Ted”; age 42; married to “Mary”; makes $200k a year; sole breadwinner in household; has three children, one from a previous relationship; is killed by a car while crossing the street; has NO Will.

  • Ted’s estate owns the following:

    • 100% of house (wife and two children reside there);

    • Some vacant land in Corpus Christi;

    • Four cars


Tx default rules1
TX Default Rules


  • Share of separate land: 1/3 LE

  • Share of separate personal property: 1/3

  • Share of Ted’s community: ZERO

    Children (3 split)

  • Share of separate land: 2/3 plus 1/3

  • Share of separate personal property: 2/3

  • Share of Ted’s community: WHOLE


  • Surviving wife is now forced to find a job while at the same time she has “lost” ownership of her house

  • Child from previous marriage is now a co-owner of estate assets with Wife and two other childen

  • How do you divide a house, land, and cars four ways?

  • Ted’s new wife and first child do not get along.

  • Two of the children are underage = GUARDIANSHIP

  • ..... A lot more problems!

Real life unintended results
Real life unintended results

  • Court declaration of heirs; appointment of administrator for the estate

  • Court declared guardianship of minor children

  • Divided ownership of assets

  • Stress, anxiety, tears, frustration

  • $15,000.00+ in attorneys’ fees

Real life example ii
Real life example II

  • “Sally”; age 79; suffered with severe physical illness for ten+ years; abandoned by her three children; taken care of by her neighbor for fifteen+ years; has NO Will.

  • Sally’s estate owns the following:

    • $200,000 house

    • $90,000 life insurance policy;

    • One car


Tx default rules2
TX Default Rules

Loyal neighbor

  • Share of separate land: ZERO

  • Share of separate personal property: ZERO

    Children (3 split)

  • Share of separate land: 100%

  • Share of separate personal property: 100%


Tx testate rules
TX Testate Rules

  • Texas Rules of Testate (dying with a Will)

    • You make the rules!

    • You have the control!

    • You take responsibility for your estate!

    • You leave your family more secure!

    • You allow healing to take place!

Two types of wills
Two types of Wills

  • Formal witnessed Wills

    • Signed by you (18+), two witness (at least 14 yrs. Old), and notarized

    • “Independent”

    • Streamlined court process

    • Witnesses must sign @ same time

  • Holographic Wills

    • Entirely in handwriting of testator

    • Made with intent to be a Will

    • Dated and signed

    • However, more requirements @ court

What happens @ death
What happens @ death?

  • With valid Will

    • Uncontested court docket (i.e. Probate Court)

    • County where Decedent resided

      • Executor name is officially appointed

      • Authority to act for “estate” and creation of entity

      • Pay debts, administer estate, follow court directives, distribute property, sign final and estate tax returns

  • Without Will

    • Arrange for special hearing

    • Application to Declare Heirs

    • Application for Independent / Dependent Administration

Why probate
Why Probate?

  • Probate must happen!

    • Must hire an attorney

    • No authority to act or bind estate without Letters

    • Transfer title to Real Property and other “titled assets” (big issues here!)

    • Notice to creditors

    • Notice to beneficiaries / heirs

Advanced planning
Advanced Planning

  • Living Revocable Trust

    • Avoid Courts entirely

    • “Avoid” possible contests to your estate

    • More control

    • Lifetime support (i.e. guardianship of estate avoidance)

    • Creditor protection to beneficiaries

    • Simpler, sometimes much cheaper (ancillary probate_, can be more flexible

    • Private versus public

Advanced planning1
Advanced Planning

  • Durable Financial Power of Attorney

  • Medical Power of Attorney

  • Advanced Health Care Directive (i.e. Directive to Physicians)

  • Declaration of Guardian in event of need

  • Declaration of Guardian for minors

  • HIPAA Authorization

  • Life Insurance, beneficiary designations

  • DNR, donation of organs, affidavit of heirship for motor vehicles

  • Special-needs Trusts