WHERE THERE IS A WILL THERE IS A WAY. . . BUT WITHOUT A WILL THERE AIN'T NO WAY!

This old expression really says a lot if one understands that a Will (or Living Trust) is your only legal voice after you are gone, picking your beneficiaries, directing your properties, and empowering someone of your choice to carry out these directions. Otherwise, the State (Aunt Texas) uses its voice to both determine and direct your properties according to the State's death statutes, i.e., you lose your power!

In the Will situation, the Court is in control for a little while, not to direct your property or pick your beneficiaries (heirs), but to empower your management choice to handle your properties (estate), pay creditors, develop a list of your properties and then pass them on to your named beneficiaries.

The cost in time and money to let the State do what you can do in a Will (or Living Trust) is probably 10 fold over a Will - and your estate pays for it with money and there is usually a six month delay. No, your property is not going automatically to your spouse or children without some sort of Court proceeding even with a Will.

Your lips are sealed at death unless they remain open through a properly written and signed Will (or Living Trust) that must be "probated" to have any power. "Probate" means "to prove"! Prove what?

(a) You are deceased
(b) This is your last Will, made with proper formalities
(c) You were not divorced or did not have any other children since making the Will
(d) You made the Will without undue influence, were of sound mind and over 18 years of age
(e) Your executor (manager) is alive, willing and not disqualified to act as the "manager"
(f) The Will is not a forgery Part of this process is to protect creditors; part to give your executor active and enforceable management power; and the last of the process is to finally give a resting place for your property using your choice.

Today, approximately 70% of Americans still do not have a Will. We as attorneys make great money handling these estates because the State's "Will" or process (Aunt Texas) in "no Will" situations, while very protective, is very detailed, time consuming, expensive and the State, not you, determine your heirs to your property.

An attorney is necessary to handle these complexities, but your estate pays the costs and fees. Under a Will situation, the attorney's role is limited and much less than a "no Will" situation; therefore, it is less expensive, less time consuming and gives your choices power. If one weighs the cost of a Will versus everyday items one purchases (and which most wear out) one sees that Wills, which do not wear out, are really very affordable and cost effective.

Think about the Probates you have been through with loved ones, if you have, and if not, imagine what it would be like if someone took over your properties at death without your legal directions, i.e., no Will, no listed beneficiaries, no named manager resulting in the State giving directions, taking over management appointment, and determination of who gets what. Do you know that without a Will even your spouse will have to produce and pay for a performance bond, get court approval on payment of expenses, have the court appoint an attorney to help determine who your heirs are, require an accounting, etc.?

How about your children under 18 who by law cannot own property in their own name? This property too goes under the State control through a guardianship, which is another separate legal proceeding, unless in your Will (or Living Trust) you made proper arrangements. FACT: We all die FACT: We all leave property FACT: Someone is going to receive this property and that someone will be

(1) determined by you;
(2) determined by the State; or
(3) determined by the probate code.

POINT OF INTEREST # 1: Wills do not work until you die
POINT OF INTEREST # 2: Ask about what to do to protect you and yours during the window of incapacity or illness before death, such as these documents:

a) General Power of Attorney or Limited Power of Attorney
b) Medical Power of Attorney
c) Directive to Physicians and Family or Surrogates (a/k/a Living Will)
d) Declaration of Guardian Prior to Need
e) Use of Trusts SUGGESTIONS Be sure and ask your attorney about the impact of Sections 683 and 683A, Texas Probate Code, on your power of attorney.

Be sure and ask your attorney about alternatives to Wills, provided he is knowledgeable in this area. All attorneys can prepare WILLS - not all attorneys are fully knowledgeable in alternative methods to WILLS.

SUMMARY
1) You can chose and list who gets your property and when - not the State
2) You can name a representative or manager to gather up your property, pay debts and distribute your property - not the State
3) You can avoid guardianship proceedings for minor children or incapacitated adults by using a trust within your Will for these people - not the State

Robert Focke and Associates offers free initial consultation on estate planning, so that you can understand your options. Please contact our offices at 713.850.7799.