Best Estate Planning Attorneys in Frisco, TX

If the will cannot be found, then a copy of the will may be offered for probate. The witnesses to the will must testify in court as to the contents. The presumption is that if the will may not be located, it was destroyed by the testator. Thus, there must be testimony about why the original of the will may not be probated and the diligent search that was made for the will. For example, the decedent preserved a copy of the will and accidentally threw away the original. Someone other than the decedent destroyed the will. The witnesses must testify even if there was a self-proving affidavit in the copy of the will. If neither the original nor a copy of the will may be found, then the property passes by intestacy.

If the deceased person dies without a will, then the property passes by intestacy (the will that Texas wrote for deceased persons based upon the next of kin to the deceased person). Under Texas law, an application for an heirship determination must be filed. The court appoints an attorney to investigate the unknown heirs, if any, and the whereabouts of unknown heirs and the existence of any minor heirs. The attorney for the heirs files an answer and prepares a report which is offered to the court at the hearing. A family member typically testifies at the hearing, and the testimony is corroborated by two witnesses who are not beneficiaries of the estate. The court then signs a judgment of heirship determining the heirs. If administration is found to be necessary then the court appoints an administrator. Upon application and consent of the heirs, the administrator may be appointed as the independent administrator. The independent administrator serves without bond and free of court supervision. If there is no independent administration, then a dependent administration is opened. A dependent administration is expensive because no money may be expended without court approval, but it may be preferable where there are significant debts.

What is appropriate for each client depends upon the clients circumstances. A trust may be created in the will to provide for children until the youngest attains age 21 or 25. This way, all of the property will be available to educate the youngest child. The older children may not receive anything until the youngest child is educated. The trustee, a family member, friend or bank or trust company, manages and invests the property and distributes the property to or for the benefit of my children for their health, support, maintenance and education. Guardians may be named in the will or by a separate document to be appointed by the court to care for minor children. The trustee may be appointed to receive insurance and retirement benefits for minor children to avoid a court guardianship of the estate of the minor children.

Each client's situation is different so the ways of avoiding conflict are individual. In general, conflicts may be avoided if the beneficiary does not receive a lesser share under the will than that beneficiary would receive if there were no will. A "no contest" clause, where the contesting beneficiary is "cut out" is not required to be enforced by a court if a contest is brought and maintained in good faith. The court's discretion applies to both will and trust contests. If the beneficiary is not cut out but receives a lesser amount, the potential for conflict may be reduced if the amount provided is sufficient (not $1). If the beneficiary receives assets that are not controlled by the will, such as insurance, then the beneficiary will benefit but in such a way that the beneficiary is not able to interfere with the administration of the estate.

The will should be kept in a safety deposit box in a bank. To obtain the will, it is necessary to obtain the key and be authorized to enter the box. If no person other than the decedent may access the box, then with or without a court order, the bank may allow the designated executor (who has a copy of the will) to enter the box to obtain the will and insurance policies. If not, the court has the forms available for a court order. The executor or beneficiaries should be able to locate the safety deposit box. The location of the will and digital assets, such as passwords and usernames, security codes, should be provided. The name of the lawyer who prepared the will is also helpful.