Common Questions

 

The thought of making a Will or creating a Trust, or associated Powers of Attorney for property and medical purposes, or an Advance Directive (sometimes referred to as a Living Will) are topics that many people find difficult to discuss and tend to delay until a later date.

 

The lack of planning can cause surviving family members enormous grief and significantly higher costs at a time when they are emotionally less capable of dealing with the circumstances. Furthermore, such planning allows one’s estate to pass as one wishes, rather than having his or her property distributed according to the laws of Texas that dictate who gets what property, when someone dies without a Will.

 

Robert Markowitz believes that planning is an act of love for one’s family.

 

(click questions below to reveal answers)
1. Do I need a Will?
Answer 1: You may or may not need a Will, depending on the assets that you are likely to own at the time of your death, as well as other considerations. My general rule of thumb is that if a person is married, or has minor children of a current or previous marriage, or owns any interest in real estate, then having a Will is a good idea. A no cost consultation with me will result in a more educated answer.

Answer 2: There are several compelling reasons why you should have a Will. (1) A Last Will & Testament, when prepared properly, insures that the assets of your estate will pass to the persons you intend to inherit your property; (2) you are able to designate the person you wish to wind up your financial affairs; (3) you are able to control how the administration of your estate will be carried out at minimal expense and time, thus greatly simplifying the process of probate for your loved ones, and (4) by having a Will, you significantly reduce the costs of administering your estate as compared to what it will cost of there is no Will.
2. Why do I need a lawyer to prepare my Will?
Texas law does not require that a lawyer prepare a Will, but the Texas Estates Code and years of legal precedent requires certain formalities in the way a Will is written, in the way the provisions are stated, and the method by which a Will is signed. There are many “fill-in the blanks” forms available over the internet. However, as easy as it may be to fill in the blanks, it is just as easy to make mistakes due to a lack of legal knowledge. The money saved by purchasing a “form” will be very small when compared to the costs that can be incurred if there is a contest over the interpretation of a “form” Will. At the minimum, if you have signed a “form” Will, or think you may do so, have an attorney review the document to insure that the document will be in compliance with Texas law and will carry out your intent.
3. Is there a minimum value of my property that determines whether or not I need a Will?
No. It is the nature of your property that is mostly considered in making this decision. A Will is particularly useful when property is “titled”, such as real estate, automobiles, property owned with others, stocks and bonds or other investments.
4. What if I have children of a former marriage?
This is a significant reason why a person in this situation should have a Will. If a person dies without a Will, in many instances, children of a former marriage have a right of inheritance of certain types of property. Consultation with an attorney is highly recommended to provide clarity to this issue and insure that your property will pass as you intend.
5. Does having a Will prevent a legal fight over my estate?
No, not absolutely. There are many reasons why a Will may be contested but your Will can provide that unless just cause exists for contesting the Will, or if the action is not brought in good faith, a beneficiary can lose his or her right of inheritance. At the minimum, such a provision will give a person motivation to reflect on whether or not he or she might actually contest the Will.
6. If I have Trust, do I need a Will?
Not necessarily. However, it is a good idea to have what is referred to as a Pour-Over Will, to insure that if you own any property at the time of your death that has not been properly transferred to the trust, then such property will be transferred to the trust at the time of death. Without such a Pour-Over Will, the property outside of the Trust will go to other heirs. Additionally, if you own any property outside of a Trust that you want to pass to a specific person, a Pour-Over Will can contain such a provision.
7. If I have signed a Durable Power of Attorney, do I need a Health Care Power of Attorney?
Most definitely. Each of the powers of attorney are for separate purposes. An agent under a Durable Power of Attorney does not give the agent the right to make health decisions for the principal. Nor does an agent under a Health Care Power of Attorney have the right to make property decisions for the principal. Each document is for separate purposes.
8. If I have not signed an Advance Directive (Living Will), what happens if I have a terminal or irreversible health condition?
If you are incapable of making a life or death decision because of illness or injury, the medical providers have no other alternative but to keep you alive by whatever medical means are available.