Practice Areas

Wills & Estates

A will is a document which controls the passage of your property upon your death. Most people benefit from a will. A will allows for easier distribution of your estate, and it is generally less costly to probate a properly prepared will. Creating a will is your opportunity to determine what happens to your property when you die.

Probate

When a loved one passes on, it is a sensitive time for family members. Often there is much to be done, and decisions to be made about the loved one’s remains and property. Family members often wonder what to do about a loved one’s (or decedent’s) property (or estate).

Elder Law

Elder law is a legal term coined to cover an area of legal practice that places an emphasis on those issues that affect the growing aging population.

Guardianship

In Texas, when an adult individual becomes incapacitated, they may need a guardianship. Incapacity is when an adult individual, because of a physical or mental condition, is unable to substantially provide food, clothing, or shelter for himself or herself, to care for their own physical health, or to manage their own financial affairs.
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Tel: (817) 874-8877 | Fax: (877) 878-5884 | kathy@kathyrouxlaw.com
Tel: (817) 874-8877
Fax: (877) 878-5884
kathy@kathyrouxlaw.com
© 2020 Kathy Roux Law | All Rights Reserved | Design

Wills & Estates

Texas recognizes two types of wills: (1) an attested or formal will which is in writing and witnessed by two or more people; and (2) an holographic will which is in the testator’s handwriting and signed by the testator.
There are several important clauses that should be included in every will: (1) an exordium clause that identifies the testator, establishes domicile, declares and publishes the will, and revokes all prior wills; (2) an introductory paragraph identifying family; (3) a paragraph identifying property being disposed of; (4) appointment of an independent executor; (5) a waiver of the requirement for an executor to post bond; and (6) a residuary estate clause.
If you die without a will, then your property will be distributed according to the laws of the State of Texas. This does not mean that your property goes to the State of Texas. Often, not have a will requires a longer and more costly probate process.
It is important to include several ancillary documents in your estate plan:
  • Statutory Durable Financial Power of Attorney;
  • Medical Power of Attorney;
  • Directive to Physicians (aka “Living Will”);
  • HIPAA Authorization;
  • Declaration of Guardian for you and your minor children;
  • Disposition of Remains;
  • Agent to Control Disposition of Remains;
  • Declaration of Mental Health Treatment; and
  • Hospital Visitation Authorization (for unmarried couples)
It is important to keep your will updated. Probate laws change and tax laws change periodically. The will you have planned this year may not accomplish your goals in 5 or 10 years from now. Your situation changes over time. Often, we end certain relationships and begin other relationships, as in the case of divorce, remarriage, adoption, or relocation. Prior wills may not account for these life changes. It is important to read these documents carefully to make sure that they express your wishes, and to consult with an attorney to make sure that the documents are consistent and work together for your benefit.

Probate

Generally, if a decedent left a will, you should probably probate the will, even if only as a Muniment of Title. A will does not pass title to property until it is determined by court order as being a valid will. Once the will is determined valid by court order, then the decedent’s estate is distributed according to the terms of the will. If a decedent did not leave a will, then his/her estate is distributed according to the laws of the State of Texas. This does not mean that your property goes to the State of Texas.
A decedent’s estate is divided into two categories:
(1) Probate assets which consist of personal property and real property, and are distributed according to the terms of decedent’s will, if he/she had a will; and
(2) Non-probate assets which consist of bank accounts, life insurance policies, IRAs, 401Ks, pensions, etc., and are not controlled by the decedent’s will, but instead, are distributed according to the decedent’s beneficiary designations.
Probate refers to the method by which decedent’s estate is administered and processed through the legal system. The probate process helps transfer decedent’s estate in an orderly and supervised manner. The probate process generally consists of the following basic steps:
1) Determine, appoint and swear in a personal representative;
2) Notify heirs, creditors, and the public that decedent has died;
3) Inventory decedent’s property;
4) Pay decedent’s debts; and
5) Distribute decedent’s estate to heirs.
If someone dies in Texas with a will (testate), their estate may be probated in one of the following ways:
(1) Dependent/Independent Administration;
(2) Muniment of Title;
(3) Affidavit of Heirship; or
(4) Community Property Administration.
If someone dies in Texas without a will (intestate), their estate may be probated in one of the following ways:
(1) Small Estate Affidavit;
(2) Affidavit of Heirship;
(3) Determination of Heirship (with administration if necessary); or
(4) Community Property Administration.
Remember, generally, probate proceedings must be filed within four years from decedent’s date of death. However, there are exceptions to this general rule, so if more than four years from decedent’s date of death have passed, you should seek the advice of an attorney.

Elder Law

Most elder law attorneys handle a wide range of legal matters affecting an older or disabled person, including issues related to health care, long term care planning, guardianship, retirement, Social Security, Medicare/Medicaid, and other important matters.
The following are other areas of expertise practiced by elder law attorneys:
  • End of life planning. This could extend to planning your health care support system as you age, setting power of attorney, establishing a living will, and other issues surrounding end of life care.
  • Financial issues. This often covers retirement and financial planning, housing financing, income and estate tax planning, and gift tax issues.
  • Long term care. This could include planning for asset protection, insurance for in-home care or assistance with activities of daily living, Medicare planning, insurance, Veterans benefits, and more.
  • Residents rights issues. This could include any claims you bring while a patient in a nursing home or long -term care facility.
  • Workplace discrimination issues. Older Americans sometimes face age and disability discrimination in the workplace; an elder law attorney can help you plan and execute your case.
  • Guardianship issues. This might include guardianship avoidance, planning wills and trusts, planning for the future of special needs children, probate court, and other issues surrounding minor or adult children.
  • Landlord / tenant law. This could mean handling disputes with landlords, contesting an eviction, dealing with foreclosure issues, and more.
  • Abuse, neglect, and fraud. These attorneys specialize in cases where an older client is being victimized. In these cases, the attorney can serve as a victims advocate and help get the client placed in a safer area if needed or get restitution from the abuser.

Guardianship

The purpose of a guardianship is to protect and care for an incapacitated individual while encouraging the development or maintenance of maximum self-reliance and independence.
The process for obtaining a guardianship may be described generally as follows:
(1) A written application must be filed in statutory probate court. In counties with no statutory probate court, guardianships shall be filed in county court;
(2) A written letter from a physician licensed in Texas must be filed;
(3) Notice and citation must issue;
(4) An attorney ad litem is appointed, and depending on the circumstances, a guardian ad litem may also be appointed;
(5) The person requesting a guardianship must be qualified to serve as guardian; and
(6) A court hearing will be held to determine the guardian;
(7) There must not be a less restrictive alternative to a guardianship.
Guardianship is a court legal proceeding that removes certain rights from an adult individual and authorizes a guardian to make decisions regarding those rights on behalf of the adult individual. The adult individual no longer has the authority to make decisions regarding those rights.
A Statutory Durable Financial Power of Attorney is an out-of-court document executed by a principal that grants authority to an agent to act on behalf of the principal. The principal still retains the authority to act on his or her own behalf.
A Medical Power of Attorney is an out-of-court document executed by a principal that grants authority to an agent to make medical decisions on behalf of the principal, only if the principal is unable to understand and express his or her wishes regarding the medical decisions.
Depending on the circumstances, the court may appoint a Guardian of the Person or a Guardian of the Estate, or both. Once a guardian is appointed, and has qualified by taking an oath and filing a bond, then Letters of Guardianship will be issued to the guardian. The guardianship is under court supervision for as long as it exists, and requires the guardian to file annual reports with the court.
Texas law requires anyone who thinks a child, or person 65 years or older, or an adult with disabilities is being abused, neglected, or exploited must report it to Department of Family and Protective Services. A person who reports abuse in good faith is immune from civil or criminal liability.
To report abuse of a child, or person 65 years or older, or an adult with disabilities:
  • By Phone: 1-800-252-5400
  • Online: Texas Abuse Hotline
  • Call 911 immediately if you have an emergency or life-threatening situation.