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Wills & Probate

USEFUL WILLS & PROBATE TERMS
Decedent
An individual who has died. A decedent's estate is the real and personal property that an individual owns at the time of his or her death.

Testator
A testator is a person who makes a valid will. A testator must be of sound mind when making a will. To ensure that a testator is of sound mind, states require that the signing of a will be witnessed by multiple persons. A testator also should be making the will without duress and free of coercion from other persons. If the testator is not acting of her own free will in consenting to the terms of the will, a court may later void all or part of it.

Intestate
A person who dies without having made a will is said to have died intestate. The person may have failed to write a will or his will may be in valid.

Executor of Estate
An executor is entrusted with responsibility for winding up the decedent�s estate while protecting his property until all debts and taxes have been paid, and distributing all remaining property and assets to rightful heirs. The law does not require an executor to be a legal or financial expert, but it does require that he honor his fiduciary duty, the highest degree of honesty, impartiality, and diligence. The duties of an executor include: locate and manage assets and distribute to heirs; file the will (if any) in the local probate court and handle day-to-day issues such as giving notification of the death, setting up an estate bank account and utilizing estate funds to pay continuing expenses, debts, taxes, file the final income tax return (for large estates) and overall supervise the distribution of property and assets in the estate. The executor is also charged with making certain decisions for the benefit of the decedent�s estate, such as deciding whether to sell real estate or securities owned by the deceased person.

Self-Proved Wills
Proving a will can be problematic. It is necessary to locate one of the witnesses to testify in probate court to prove a will. If the witness resides in another country or state, his testimony must be secured deposition. If neither of the witnesses to the will can be located or are dead, it is necessary to prove the will by signature. To eliminate these types of problems, Texas allows for proof of a will by a self-proving affidavit, a sworn statement notarized by a notary public. The self-proving affidavit can be inserted at the bottom of the will to be signed by testator and witnesses.

Fiduciary duty
The duty to act with scrupulous good faith and honesty on behalf of someone else. It is the highest degree of honesty, impartiality, and diligence.

Texas Last Will and Testament
A will is a legal document that instructs how you want your property to be distributed when you die. In addition to allocating your property and assets in your will, you can also designate a legal guardian for your minor children, designate the executor of your will, name the trustee of any trusts you create, and even give instruction on your funeral arrangements. Without a valid will, Texas intestacy laws will operate and divide your property and assets according to a predetermined formula that you may not agree with. Also, if you do not appoint a guardian for your minor children, your children will be appointed a guardian by a Texas probate court judge.

Texas Durable Power of Attorney
Executing a Durable Power of Attorney allows you to appoint an agent to manage your affairs in the event that you are unable to. This allows your agent to manage your taxes, investments and bills. The agent will have the same authority to act as yourself, unless you place limits on his or her authority. If you become incapacitated and do not have a statutory durable power of attorney in place, a court-ordered guardianship may be necessary. You can avoid a costly guardianship proceeding by creating a power of attorney on your behalf.

Texas Medical Power of Attorney
A Medical Power of Attorney is a document that allows you to designate an agent, someone you trust, to make medical decisions on your behalf if you become incapable of making medical decisions for yourself. The Medical Power of Attorney becomes effective when your physician certifies that you lack the competency to make decisions on your behalf. Your agent is under a duty to follow the instructions that you specify in the power of attorney (or Directive to Physicians, Family or Surrogates). Unless you place limitations on your agent's decision-making authority, your agent has the same authority to make healthcare decisions as you would have if you were able.

HIPAA Authorization
The Health Insurance Portability and Accountability Act (HIPAA), is a Federal law that limits who your health information can be shared with. The federal government has strict penalties for violators, so medical providers are hesitant to share medical information with anyone but the patient. A HIPAA authorization allows you to authorize an individual your trust to be given access to your medical and health information.

Texas Medical Directive to Physicians
A directive to physicians, also known as a living will, is a document that allows you to communicate your wishes regarding your medical treatment in the event that you are unable to communicate, due to an illness or injury. You can specify the types of life-sustaining treatment (e.g. respirators, feeding tubes etc.) that you would like to receive if you develop a terminal or irreversible medical condition. In the alternative, you may instruct your physicians not to use artificial methods to extend your life in the event you are diagnosed with a terminal or irreversible condition, if you choose.

Out-of-Hospital Do-Not-Resuscitate Order
An Out-of-Hospital Do-Not-Resuscitate Order, allows you to refuse life-sustaining treatments (i.e. CPR or defibrillation) in non-hospital settings, such as physicians' offices, clinics and hospital emergency rooms. Guardianship If you have minor children and you and your spouse die before the children become adults, then a judge in probate court will decide who will get custody of your children and who will manage their inheritance until they reach the age of 18. Through your Last Will & Testament, you can designate a Guardian for your children in the event you and your spouse have both passed and or become incapacitated. You may also voice who you would not like to be given guardianship of your minor children.

Probate
Probate is the court-supervised process of reviewing the validity of a Will, after which the decedent's assets are located and valued; final bills paid; and remaining assets distributed to decedent's heirs. The process requires an application to probate the will and seek letters of testamentary, preparing proof of death and oath documents and setting and attending a hearing to probate the will.

Trusts
Trusts can serve many uses and can be utilized for many special purposes, including tax planning wills, but even the simplest of wills and the most modest estates may contain trusts.

USEFUL WILLS & PROBATE LINKS
http://www.constitution.legis.state.tx.us/