Wills and trusts in the Woodlands dictate what happens to a person’s assets and estate after death. While most people refer to an attorney who helps in these situations as a will attorney or a probate lawyer, they are actually called estate-planning attorneys. When someone decides to create a will or a trust, consulting with a lawyer can ensure that he or she achieves certain estate-planning goals.

In this video, an attorney details the many benefits of working with a lawyer during the estate-planning process. As he explains, a lawyer understands the best avenues for allocating assets following death. For example, a lawyer can help explain when a trust or will is the most effective means to allocate assets to family members. Working with an attorney also ensures accurate preparation of documents, so as to ensure smooth probate and estate execution.

Every state has its own laws and regulations governing the divorce process, so someone petitioning for divorce should discuss his or her case with a local divorce lawyer. In Texas, a couple can only petition for divorce if at least one of the spouses has been a resident of the state for a continuous six-month time period. A family law attorney in the Woodlands will also advise the couple that one of the spouses must have been a resident of the county it wishes to file for at least 90 days.

What is the divorce procedure?
Usually, a Texas divorce case begins with one spouse filing an Original Petition for Divorce with the court and then personally serving the papers upon the other spouse. However, the other spouse may also sign a waiver to give up the right to be personally served with the papers. Thereafter, they begin the discovery process. Spouses may also discuss the settlement of their case directly or with the help of an attorney. If the parties cannot agree on all the issues of their divorce case, then the court will likely set a trial date.

How long does it take to finalize?
In Texas, it takes a minimum 60 days after the petition is filed for the divorce to become final. As a part of this process, the judge will pronounce the divorce final in open court and sign the divorce decree. If the spouses do not agree, it will likely take around six months to a year to finalize, depending on the complexities of the case.

How is property divided?
A Texas family law firm understands that courts initially presume that all property earned or acquired by either spouse during the marriage becomes community property. Separate property consists of property, brought into the marriage, and may also refer to any property acquired by just one spouse as a gift or through inheritance. Even though courts usually split property equally, factors such as unequal earning power and fault in the marital relationship can influence how a court divides the property.

According to an AARP survey , two out of every five Americans over the age of 45 haven’t written a will. While many Americans may avoid this process because it entails actively planning for their demise, creating a will is one of the most important ways to plan for loved ones. Working with a probate and will attorney in the Woodlands allows someone to put his or her wishes on paper and help his or her heirs avoid unnecessary legal hassles.

What is a will?
A will is a legal document in which someone declares how and who will manage his or her estate after death. This estate can consist of big, expensive items like a vacation home as well as smaller items that hold sentimental value, like family photos. The person appointed to manage the estate is called the executor, as he or she is tasked with executing the testator’s wishes. However, there are certain types of property, like retirement accounts, that aren’t covered by wills. In such cases, the testator should discuss how to transfer ownership in this property with a will attorney. Creating a will also overlaps with other family law areas, as the testator can declare who will become guardian to his or her dependents in the will.

Is an attorney necessary?
Contacting a law firm is not required to create a will. However, an experienced will lawyer provides useful advice on estate-planning strategies, such as how to create a living trust within a will. Whether someone decides to create his or her own will, or seeks the advice of a lawyer, he or she needs to consider all essential estate-planning documents. Indeed, this is a great time to research financial and health care powers of attorney.

Should you create a joint will?
Will lawyers and estate planners tend to advise against joint wills. In fact, some states don’t even recognize them as legally valid. The problem in joint wills is that it is rare for both spouses to die at the same time. Additionally, many couples have property that is not jointly owned. Even though a couple’s separate wills may look similar, it’s recommended to just create separate legal documents.

A number of states provide for fault-based divorce grounds. This means that a spouse and his or her divorce lawyer in The Woodlands can claim the other spouse was at fault for the end of the marriage. Common grounds for fault divorce claims include adultery, cruelty, and abandonment.

In this video, a family law attorney explains the difference between filing a fault and no fault divorce petition. As he explains, someone only needs to allege the irretrievable breakdown of marriage or irreconcilable differences in a no-fault divorce claim. No-fault divorce empowers a couple to end their marriage if they desire without citing a legal reason. No-fault divorce represents a modern trend in family law. Even if the petitioned spouse doesn’t wish to divorce, he or she cannot object to the divorce proceedings. In traditional fault divorce cases, the petitioned spouse could object to the grounds for divorce.

There is a common misconception that if you die without a will, your personal belongings will pass to your next of kin automatically. In reality, with or without a will, the probate courts will determine how to distribute your assets, which may or may not be consistent with your true wishes. Avoiding probate in The Woodlands requires you to meet with a will attorney and specify how your possessions should be divided.

Ensure belongings go to beneficiaries
Wills ensure that certain belongings go to desired beneficiaries. Every probate court will review the will for validity and actually having a will, rather than an intestate estate, will speed up the probate process. In meeting with a will attorney, you can also outline how you would like certain assets to be used following your death. For example, you can bequeath a car to a family member and express your wishes that he sell it to support his education. Even though this stipulation isn’t binding, the will allows you to convey your final wishes in giving assets to your beneficiaries.

Limit family disputes
Courts only allow contesting a will in very limited circumstances. Usually, this occurs when there is evidence the will is not legitimate because the person making the will was not of sound mind. By drafting a will, you can help ease tension among family members in dividing your assets. Your will attorney can help you use specific language to ensure there is no doubt or confusion as to how you would like your assets divided following death.

Quantify your assets
If you haven’t drafted a will, a probate attorney may send inquiries to local banks and financial institutions to assess your financial situation. Your family members may also have to produce financial paperwork, including brokerage statements, government bonds and stock certificates. The purpose of this requirement is to ensure all of your assets exist and can be divided equitably. Creating a will helps avoid this step because you have formally outlined your assets and provided details of their value. You can also include a contingency clause assigning a beneficiary to any assets that you don’t specifically include in your will.

The Law Office of Andrew J. Bolton, Esq. is a law firm near The Woodlands with additional offices in Huntsville and Sugar Land Texas. Our firm focuses on the specific needs of each of our clients, whether they are dealing with divorce, child custody or drafting wills. Even though our family law attorneys are compassionate during client consultations, we provide aggressive representation in the courtroom.

Andrew J. Bolton is a family lawyer and was a longtime resident of Cypress, Texas and is a current resident of New Waverly, TX. Mr. Bolton graduated from Cypress Creek High School in 1981. Following graduation, Mr. Bolton went on to earn his Bachelor’s Degree in Spanish Language at Brigham Young University in Utah. He then earned his Doctorate of Jurisprudence at the J. Reuben Clark School Of Law. During law school, he was also editor of the BYU Journal of Law and Education. Following law school, Mr. Bolton returned home to Texas and began practicing family law. He was partner in the law firm of Bolton & Bolton, PC in Tomball, Texas and then served as City Attorney for the City of Magnolia, Texas. As a lawyer, Mr. Bolton’s goal is to provide the best quality legal representation by developing long-term relationships with clients.

In Texas, you can file for divorce on either fault or no-fault grounds, so it’s important to work with a divorce lawyer in The Woodlands who understands both processes. Filing for divorce based on fault grounds may be advantageous when it comes to dividing marital property or assigning alimony. However, filing for no-fault divorce allows you to negotiate the end of your marriage without assigning blame or fault.

Property division
Before meeting with a lawyer about your divorce claim, you need to ensure you meet the Texas residency requirement for divorce. This means that either you or your spouse must be Texas resident for at least six months prior to filing for divorce. Texas is a community property state, meaning that all income and property acquired during your marriage is considered marital property. At divorce, you and your spouse equally own the property, so division among you and your spouse is equal.

Child custody
In every state, the court presumes that frequent and continuing contact with each parent following divorce is in the child’s best interests. As a result, judges support joint custody agreements whenever possible. However, depending on the circumstances of your case, a judge may allocate custody differently. If you are considering asking for primary custody, you should discuss your options with a family lawyer.

Child support
Following divorce, both you and your spouse are required to financially support your child. However, the exact amount of child support depends on each of your incomes, financial resources, and time spent with the child. Sometimes, a court will assign a higher income requirement if one parent has the capacity to earn more than he or she is currently earning. A child support attorney can help you calculate your potential child support obligations following divorce.

Spousal maintenance
In Texas, a court may award spousal support if you are unable to earn enough income to provide for basic needs, you were married more than 10 years or you have custody of a child who requires special care. However, you need to provide evidence that you made a good faith effort to earn an income.

Can I use a will from on-line or an office supply store? I never hear this question in my office. If my clients didn’t think a professional was necessary, they wouldn’t have scheduled an appointment to see me. However, this is the question I am most often asked outside my office, wherever people discover that I write wills. While almost everyone knows they should have a will, most people don’t. A form or store-bought will does seem like a cheap and easy alternative to an expensive lawyer. Nevertheless, my objection to such wills may be summed up in the words of a Taylor Swift song: “You don’t know what you don’t know.”

So, the quick answer to this question is that wills that promise they are “valid in all fifty states”, usually do, in fact, produce a will, which is valid in Texas. However, you may be letting your heirs in for a lot of heart ache if you actually use one.

There are five major reasons not to use prepackaged or fill-in-the-blank wills.

1. It may easily end up costing more in the long run. Form wills often cost more to probate, and often take more of your (and your probate attorney’s) time. Texas has an unusual but effective probate process. A properly written Texas will is both quick and relatively inexpensive to probate. Those one-size-fits-all wills are often not written to take advantage of our Texas laws. Over the years, we have seen form wills from 11 different companies, including some of the most heavily advertised companies, and have yet to see a will which is written to take full advantage of Texas’s stream-lined probate system. In sum, having a valid will is not enough; it must also be the best will for probate proceedings in Texas.
2. Your will may not say what you think it says. I have seen this in my practice when box wills are brought into me for revision. Do you know what “representation per stripes” means? If not, the extra money spent on a lawyer just make make a difference. A good example is a man with two children and three grandchildren. When interviewed, he wanted to split his property evenly between his two children. In the event one of his children died before him, he wanted the children of his dead child to inherit their parent’s share. He was unaware that, under the computer generated form he had had in place for the last several years, if one of his two sons died before him, the surviving child would inherit everything. Of course, with respect to the form wills that I have been asked to probate, I cannot tell my client whether or not the testator intended to disinherit his grandchildren, I can only tell them that he did.
3. You probably have not thought of everything which should be addressed in your will, and most forms will not make the suggestions to you. The most common element left out of form wills is what should happen if a minor ends up inheriting property. Almost every will has at least some possibility that this will occur. Even if your children are grown, most people want their grandchildren to inherit if a child predeceases them. In that case, who will manage the money? Should it be the grandchild’s surviving parent? What if the surviving parent divorced your child, or if they were never married. Maybe you just don’t trust the other parent. At what age should the children/grandchildren come into their inheritance? What restrictions should be placed on the money? It is a rare eighteen year old capable of being responsible for more than one month’s living expenses. Any competent attorney will walk you through these questions and suggest solutions. Most form wills will not.
4. When you see an attorney for a will, you usually get a lot more. By this, I mean a lot more documents. A power of attorney in particular is frequently needed in addition to any will, and, if you do not have one in place, it can cost your family thousands of dollars in fees and expenses for a guardianship proceeding.
5. If you use an attorney, you have greater confidence that your will has been properly executed. This may seem like a very simple thing, but it ends up being a problem a lot more often than you would think. Not only must the witnesses be present when the will is signed, but the testator needs to be present when the witnesses sign. Also, people who inherit, cannot act as witnesses. The testator must state to the witnesses that he is signing a will. These issues and other have been used to hold an otherwise legal will, invalid. This is why most attorneys have wills signed in their offices, rather than sending a client home with an unsigned document.

As an aside, courts have also determine some fill-in-the-blank wills to be invalid holographic wills (wills written in the handwriting of the testator) and thus not subject to probate. If you have a fill-in-the-blank will for probate, we strongly urge you to have the assistance of counsel prior to attempting any probate.

Here is a good example of why you might want an attorney to assist you in drafting a will. Often, I have a client come in who owns a “special car,” and the client desires that a particular child inherit that special automobile. Drafted by himself, the will might plainly state: “To my son, John, I give my 1969 Corvette.” Well, the right 1969 big block Corvette can go for over $100K in the right market, so to compensate the client’s other kids for not getting the Corvette, the client then reduces the amount of other estate items that he gives John. Ten years down the road, however, the client makes a wonderful trade of that 1969 Corvette and gets a 1962 Ferrari in the deal. Now, he’s made a wonderful trade and John will be even happier, right? Wrong. Because the will mentioned a “Corvette” and not a “Ferrari,” John not only misses out on the Ferrari, but remember, the client reduced his share of the estate due to fantastic gift that he’s not going to be awarded. John gets less , not more. A properly drafted will might say: “I give to John most most valuable automobile at the time of my death.” Or perhaps, “I give to John my Corvette or any accession resulting from the disposal of that automobile.” Get a lawyer!

Oral Wills

In many states, a person can make an oral or “nuncupative” will under the proper circumstances. However, I will not delve deeply into that arena since Texas has outlawed oral wills since 2007. In sum, do not delay drafting a proper Texas will because gifts made orally will no longer be recognized in a Texas probate court. In such circumstances, you will have to settle for an family settlement agreement, if possible, or perhaps a proceeding to determine heirship.

In sum, if you are contemplating a probate of a fill-in-the-blank will, and you are concerned, there may be options or alternatives available. As noted, a Family Settlement Agreement (or FSA) might be appropriate, or, if the will is declared invalid, then a proceeding to determine heirship may be needed. At any rate, we stand ready to assist in all these areas.