Austin Probate Lawyers
Probate is a legal process in which a party must “prove” a will in a Texas court. In other words, a judge must accept a document as being a valid last will and testament of a person that has passed away. Probate can also include settling a deceased person’s estate according to the intestacy laws of Texas if that died without a will.
Probate can be highly complex process – especially when no valid will is in place, or when a will needs is contested. As a result, it is common for people whose loved one has just passed away to have many questions about probate. If you are a Austin resident who is facing these questions, you should contact an experienced probate lawyer at Michael P. Fleming & Associates, P.C., without delay. We can provide the caring and knowledgeable legal guidance and representation that you need while going through the probate process.
What Is a Last Will and Testament?
A last will and testament can protect your family and property in the event of your death. It allows you to leave property and other assets to other people or organizations. In your will, you can also name:
- A guardian for your minor children
- A person to manage the assets you leave to your loved ones
- An executor, or a person whose duty will be to ensure that the terms of your will are carried out.
To finalize a will in Texas, you must be at least 14 years old and capable of signing your own signature. You must sign your will in front of at least two witnesses, and those witnesses must also sign the will in your presence.
What Are Common Grounds to Contest a Will in Austin?
A person may wish to contest, or challenge, a will in Austin for any number of reasons. However, these reasons typically fall into one of three categories:
- Lack of capacity – The testator, or person who creates a will, must do so voluntarily. If the testator was not of sound mind when he or she created the will, it will call the will’s validity into question.
- Duress – When a third party tries to convince someone to create a will that he or she would not have created otherwise, it amounts to duress. Again, wills must be entered into willingly in order to be considered legally valid.
- Due execution – For a will to be valid in Texas, the testator must take certain steps. These steps include getting witness signatures and more. If the testator fails to take any of these steps, a court will likely deem the will to be invalid.
If you believe that you have grounds to contest the validity of a will, but you are not sure of what to do next, a probate lawyer from Michael P. Fleming & Associates, P.C., can assist you, starting with a free and confidential consultation.
What Property Can a Will Cover?
You can pass on, or bequeath, nearly any type of property through a last will and testament. Assets which people mostly commonly include in a will are:
- Animals and pets
- Business interests
- Cash accounts
- Real estate
- Retirement accounts
Before you create a will, you should take a full inventory of your assets. By doing so, you can avoid missing something important that you want your will to address.
How Do You Choose an Executor for Your Will?
One of the most important steps that you need to complete when you create a will is to name an executor. This person will be responsible for ensuring that your estate is properly settled, and any property left to your beneficiaries gets distributed according to your wishes. When you name an executor, keep these steps in mind:
- Consider family first – Most people choose a family member as an executor – and for good reason. Family members are typically the people a person trusts the most. For this reason, someone from your family is usually the best choice for executor of your will.
- Choose a backup executor – Your first choice for your executor may not be available after you pass away. For this reason, you should have a backup executor in mind.
- Don’t choose someone considerably older – When you name your executor, you want to be sure that he or she is in good health and likely to survive your death. Sometimes, executors also have a lot of work to do with the will. So, you want to ensure that your executor will be capable of doing so.
- Choose someone that lives close to you – No law requires that your executor live near you. However, executors often have to act quickly and meet with lawyers and other professionals daily or weekly. Choosing someone that lives close to you will make it easier for he or she to do this.
- Prioritize trustworthiness, not experience – A person doesn’t need to have any prior experience with serving as an executor. However, the person does need to be trustworthy. Always choose someone that is honest and one whom you trust.
When you don’t know who to name as an executor, or if you just want confirm that the person you have chosen is a good choice, you should feel free to ask your attorney. A probate lawyer can advise you about your decisions.
What Happens If You Pass Without a Will?
Unfortunately, many people pass away without a will in Austin. When this occurs, family members will be concerned about what happens next and whether their loved one’s last wishes will be carried out. It will depend on the circumstances of your life before your death. For example, if you don’t have a spouse or children, and you pass away without a will, then under Texas law, your assets will first be distributed to your parents.
If you are married and pass away without a will, a Probate Court judge will first determine what was community, or shared, property, and what was separate property. Your spouse will inherit the community property and, if there are also children, one-third of your separate property.
In any event, if you die without a will, the Probate Court judge will determine how your property should be divided. This means your last wishes may not be carried out. A will can prevent this from happening and ensure that you determine your beneficiaries and the distribution of your property.
Get Help from an Experienced Austin Probate Attorney
Wills are important. These legal documents allow you to assert control over who will receive your property upon your death and, perhaps more importantly, who will care for your children when you are gone. If you would like to start planning for tomorrow, contact our probate attorneys. At Michael P. Fleming & Associates, P.C., we can help you create a will in Austin that is enforceable and will truly reflect your wishes. Contact us now to schedule a free and confidential meeting with one of our attorneys today.