Probate Law Assistance In San Antonio, TX
A will is an essential legal document to plan for the future. Many people disregard drafting a will because they don’t have a lot of wealth, but the amount of wealth doesn’t matter. This document explains how you wish to have your property distributed after death, which can ensure your spouse or family receives all the possessions.
Dan Burke Attorney at Law offers reliable guidance regarding estate planning and asset distribution. Here are some commonly asked questions regarding wills.
What Are The Requirements To Make A Will?
A will is a simple, common document that nearly anyone can make. Specific rules vary by state, but generally to make one, you must be 18 years old and the document must be in writing, signed with a witness present.
Living Will vs. Last Will: What’s The Difference?
A living will is a legal document that outlines your medical treatment and end-of-life care preferences if you become incapacitated and cannot communicate your wishes. It typically includes instructions on life-sustaining treatments, such as whether you want to be kept on life support or receive certain medical procedures.
In contrast, a last will — or last will and testament — details how you want your assets to be distributed after your death. It appoints an executor to manage your estate and ensures that your belongings, finances and other properties are allocated according to your wishes.
In essence, a living will addresses medical care while you’re alive but incapacitated, whereas a last will addresses the distribution of your assets after your death.
Does A Life Estate Override A Will?
In general, a life estate does not override a will but can affect how property is distributed after death. Here’s how it works:
- – Life estate — A life estate is a legal arrangement where a person (the life tenant) has the right to use and benefit from a property for the duration of their life. After the life tenant’s death, the property automatically passes to another person or entity, known as the remainderman.
- – Will — A will is a legal document that outlines how a person’s assets should be distributed after their death. It can designate beneficiaries for specific properties and assets.
Interaction Between Life Estate And Will
If a property is held under a life estate, the life tenant has the right to use the property during their lifetime. The will cannot alter this arrangement during the life tenant’s lifetime.
Upon the death of the life tenant, the property will automatically transfer to the remainderman, regardless of any contrary instructions in the will.
In other words, the life estate takes precedence over the will concerning the distribution of that specific property. The will’s instructions regarding that property will not come into play until the life estate ends, at which point the property will be distributed according to the life estate arrangement.
Does A Will Have To Be Notarized?
In Texas, a will does not have to be notarized to be legally valid. The primary requirements for a will to be considered valid are:
- – Written document — The will must be in writing, either typed or handwritten.
- – Testator’s signature — The will must be signed by the testator (the person making the will).
- – Witnesses — The will must be signed by at least two witnesses who are over the age of 14 and who are not beneficiaries of the will. They must witness the testator signing the will or the testator must acknowledge the will in their presence.
While notarization is not required for a will to be valid, it can be beneficial. In Texas, you can create a “self-proving” will by having the testator and witnesses sign an affidavit in front of a notary public. This affidavit, when attached to the will, makes it easier to prove the will’s validity in probate court, as it eliminates the need for the witnesses to testify about the will’s authenticity.
How To Become Executor Of An Estate Without A Will
Becoming an executor of an estate without a will involves a different legal process compared to when a will is present. Here’s a general overview of the steps involved:
1. Understand The Role Of An Executor
Executor vs. Administrator — Without a will, the person managing the estate is called an “administrator” rather than an “executor.” The role is similar, but the appointment process differs.
2. Determine Eligibility
In many jurisdictions, anyone can apply to be an administrator as long as they meet certain requirements, such as being of legal age and having no felony convictions. Some states or regions may prioritize family members or close relatives.
3. File A Petition For Probate
File a petition with the local probate court to open the probate process. This petition is usually filed in the county where the deceased person lived. You’ll need to provide information about the deceased, including details of their assets and any known debts.
4. Notify Interested Parties
Inform all potential heirs and beneficiaries about the probate proceedings. This ensures that all interested parties have an opportunity to contest the appointment if they choose.
5. Attend A Court Hearing
Attend the probate court hearing where the judge will review the petition and determine whether to appoint you as the administrator. You may need to demonstrate that you are suitable for the role, such as showing that you are trustworthy and have no conflicts of interest.
6. Obtain Letters Of Administration
If the court approves your petition, you will receive Letters of Administration. This document officially authorizes you to act as the administrator of the estate.
7. Manage The Estate
Take inventory of the deceased’s assets and manage their distribution according to state intestacy laws (laws governing the distribution of assets when there is no will). Settle any outstanding debts and taxes owed by the estate before distributing the remaining assets to the heirs. Distribute the estate’s assets to the heirs according to the intestacy laws of your state.
8. Close The Estate
Provide a final accounting to the probate court, detailing all transactions made during the administration of the estate. Seek court approval to close the estate once all matters are settled.
Consult Legal Assistance
Handling an estate without a will can be complex, but with the right guidance, you can navigate the process smoothly. For expert assistance in becoming an administrator or managing probate matters, contact Dan Burke Attorney at Law today to ensure everything is handled efficiently and in accordance with the law.
