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Estate Planning FAQs

Probate Administration | Estate Planning | Will Preparation

Estate Planning FAQs

probate attorney in austin

Todd A. Wilson

Estate Attorney

Law Office of Todd A. Wilson is a full-service law firm that specializes in cases of probate and estate planning. Call us at 512-827-9212 for a FREE consultation. We are located in 4425 S. Mopac Expressway., Bldg. IV, Suite 100.

Being a locally owned company, we are members of the Austin Bar Association, Texas Bar Association, and American Bar Association. You can schedule an appointment with us online. Learn more about Estate Planning is all about from the FAQs below.

What Is Estate Planning?

Protecting children and assets from the government, creditors, and others while maintaining control of your possessions during your lifetime and passing those assets to loved ones upon death.

What Is Comprehensive Estate Planning?

Comprehensive Estate Planning means going beyond simply setting up will and thinking you are covered. It involves the establishment and funding of trusts (where appropriate) to protect your assets from unwanted creditors and young or untrustworthy heirs.

It also includes the creation of Powers of Attorney to allow a trusted friend or family member to handle your affairs in the event unforeseen circumstances prevent you from managing your affairs. Medical Directives, Living Wills, and HIPPA forms are also included to allow you to direct medical treatment during times of crisis when you are unable to speak to a doctor.

Do I Need a Will or Trust?

Almost everyone needs a will or trust. Many people mistakenly believe they do not need Estate Planning because they do not have enough assets for it to be a concern. However, if you have minor children, you want to direct who takes care of them and ensure they have the money to do so.

If you have a house, car, or any other major asset, you want to give that asset to the person you believe most deserving, not the State. If you have a small business, you want to preserve that business that you have fought so hard to build over the years. If you have pets, just like minor children, you need to specify who will care for them and from where the necessary money will come.

The truth is that estate planning is not reserved for the ultra-wealthy and that taking the time to set up a comprehensive estate plan can be pivotal to preserving your last wishes and your legacy. In fact, there are plenty of stories of wild wills out there highlighting the risks and potential consequences of not putting a solid estate plan in place prior to passing.

Plus, tax laws change routinely, which could expose your estate to greater tax liabilities if you’re not careful. Smart estate planning and regularly revisiting your estate plan can help you protect your interests and estate, regardless of how those evolve or the tax laws change.

What Happens If I Die Without a Will or Trust?

If you die without a Will or Trust (“dying intestate”), the State will divide your assets among the individuals it believes most deserving by default. The State makes its assumptions based solely on how the legislature believes most people would want their belongings distributed. It does not make any independent inquiries to determine what your wishes may have been or who was actually closest to you in life.

What Is the Difference Between a Trust and a Will?

A trust is a legal concept or device that “owns” assets while still allowing the individual the freedom to manage the asset in every way he/she could as the outright owner. Upon death, the management of the trust easily can be transferred to one or more individuals.

In contrast, a Will is a document that directs assets to particular beneficiaries upon the owner’s death.

When it comes to the difference between wills vs. trusts, it’s also crucial to know that:

  • There are different types of trusts, and you won’t necessarily need all of them: Intentionally defective grantor trusts (IDGTs), grantor retained annuity trusts (GRATs), and spousal lifetime access trusts (SLATs) are just types of trusts you could include in your estate plan. Those may not be the only trusts you need, and your needs for trusts could evolve as your finances, family, and life change.
  • A will can govern or set up trusts: You can set up trusts with or independent of a will document. The same doesn’t work in reverse, however; trusts and trust documents are not used to “set up a will.”
  • Wills and trusts are often part of comprehensive estate planning: Together — and when set up properly — both wills and trusts can offer more flexibility, better asset protection, more effective tax mitigation strategies, and more powerful ways for folks to achieve their estate planning objectives.

What Are the Benefits of a Trust Over a Will?

A trust provides the following:

  • Privacy – If you die without a will or even with a will, your assets must go through Probate. The Probate process is open to the public, meaning your life is largely opened for scrutiny by anyone who cares to look into it. Trusts do not need to be probated, meaning your assets and desires are shielded from unwanted prying eyes.
  • Speed – The Probate process can be lengthy (possibly a year or more depending on your assets), meaning your administrator and assets can often be tied up for long periods of time sorting through everything. Trusts allow the transfer of assets in a fraction of the time.
  • Cost Savings – The Probate process can also be expensive, taking large amounts of money out of your estate that would have otherwise gone to your heirs. Trusts are more expensive than wills upfront but potentially save you much more on the back end, leaving more to pass to your loved ones.
  • Control During Incapacity – Wills are not equipped to deal with scenarios where you become incapacitated (coma, absenteeism or other medical condition preventing you from effectively managing your assets). Trusts set up trustees to stand in your place in managing your assets and establish legal safeguards to help ensure they affect your wishes to the best of their abilities.
  • Flexibility – Everyone has something unique about their situation. Whether you have a sibling you want to disinherit, a wayward child you want to care for but do not trust with money, an extended family as a result of multiple marriages, or anything else, trusts offer the opportunity to pass along assets in any manner you see fit.

What Types of Assets Don't Have to go Through Probate?

Generally speaking, trusts, jointly-owned properties (i.e. houses owned by a married couple), annuities, retirement benefits, and life insurance can avoid probate.

Can I Prevent a Family Member or Anyone Else From Receiving My Assets?

Yes. You can specifically disinherit individuals to ensure they do not receive any assets from your estate.

How Do I Protect My Assets From Unhappy Family Members or Others Who Want More Than I Am Willing to Give Them?

Provisions can be established ensuring that anyone who attempts to challenge the will or trust in order to get a larger share of your estate will be disinherited and will receive nothing. This is a powerful incentive for everyone to get along and accept your wishes.

Can I Use Estate Planning to Help Transfer My Small Business Upon My Death?

Yes. Proper estate planning can set up a smoother transition in the event something should happen to you.

What Is a Pet Trust?

Pet trusts act just like other trusts set up for the care and management of loved ones. Money is set aside to feed, shelter and otherwise ensure your pets are taken care of in the event you are not around to do so personally.

What Happens If I Am Incapacitated?

A State court will appoint someone to manage your assets on your behalf. That means someone you have never met, not your family or trusted friend, will control how your assets are managed.

How Expensive Is Estate Planning?

Estate Planning can be as cheap or expensive as you like depending out the amount of assets you have, how restrictive you want to plan to be, and many other options within your control.

If Estate Planning is done correctly, it can potentially save your estate money on the back end, allowing you to pass more to loved ones than they would receive had you not taken the time, energy, and expense to create a Comprehensive Estate Plan when you had the chance. If you think Estate Planning is too expensive, start with what you can afford and then expand your plan when the time is right.

What If I Have Property in Multiple States?

If you own property in multiple states, that needs to be accounted for in your Estate Plan. Not only does each state have its own unique laws, but upon death, ancillary probate may need to be opened in states where you have additional property.

What If I Move Out of State?

If you move, you should contact your Estate Planning Attorney to see how your new State’s laws may affect your Estate Plan.

What If I Get Divorced or Married or Have Another Child?

If you have a major life change (divorce, marriage, children, etc.), you should contact your Estate Planning Attorney to see how your new situation affects your Estate Plan.

How Often Should I Reassess My Estate Plan?

This varies depending on your particular situation and your attorney’s methods. Generally, it is a good idea to have your attorney look over your plan every couple years or whenever you have a major life event (marriage, children, purchase of house, moving out of state, changing jobs, etc).

What Is the Difference Between a Common Law Property State and a Community Property State (i.e. Texas)?

Most states are Common Law Property states, which means that property acquired during marriage is the property of that person separately unless the married couple agree to hold the property jointly.

Under Community Property states, property acquired by either spouse during marriage becomes community property. Property acquired before the marriage or inherited or received as a gift during marriage, is considered separate property. These are general rules with many pitfalls and variances.

Why Should I Not Just Fill Out a Form Online?

Online forms may be sufficient for simplistic estates. If you have little to no assets and no minor children, an online form may be right for you. Estate Planning Attorneys provide the peace of mind that comes with knowing your particular states laws, staying current on those laws, listening to your concerns and tailoring a specialized plan to fix your unique scenario.

Maintaining a relationship through the years that allows for easily adapting your will or trust is also important, when personal circumstances or state or federal laws change. If you decide to use an online form, you are assuming the responsibility of legally and effectively passing your assets on. A good Estate Planning Attorney takes that responsibility off your shoulders.

What Is a Living Will or Medical Directive?

Living Wills and Medical Directives state a person’s desires regarding medical or end-of-life scenarios in the event they are incapable of communicating (incapacitated, in a coma, etc). They also allow an individual to select a trusted confidante to receive information, speak on behalf of, and make medical decisions for them in case they are unable to.

What Is HIPAA and Why Do I Need a Release?

HIPAA stand for Health Insurance Portability and Accountability Act. Basically, this is a law designed to protect your personal medical information. Doctors and other medical providers cannot release certain information about you without a HIPAA Release. Setting this Release up helps to allow your most trusted confidante(s) the ability to affect your wishes in the event of a medical emergency or unexpected tragedy.

What Is a Power of Attorney?

Power of Attorney gives one or more persons the legal authority to act on your behalf. This authority can be as broad or narrow as you wish. This can include buying, selling, or otherwise managing your money, house, stock, etc.

Powers of Attorney can be effective immediate or not until a certain event occurs (i.e. you are declared incapacitated or incompetent). Powers of Attorney may be revoked at any time.

Does My Will Need to Be Notarized in Texas?

No. There’s no legal requirement in Texas to notarize a will. It must, however, be in writing, signed by the testator (you) or another person at your direction and in your presence, and attested to by at least two credible witnesses over the age of 14 in your presence.

You can make your Will “self-proving,” though, which speeds up the probate process and requires a notary. If you hand write your own will (a holographic will), it need only be signed by you.