Professor Richard M. Alderman, Associate Dean at the University of
Houston Law Center, who is known to many as "The People's Lawyer", answers your most common questions. If you have a question pertaining to the law in Texas, please e-mail Richard at peopleslawyer@www.law.uh.edu. This page answers your questions on Wills, Probate or Power of Attorney
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A. All estates, even with a will, must be probated.
In Texas, probate can be a simple and relatively inexpensive process. It is basically the way in which the law gives legal effect to the wishes you set out in your will.
Q. Is a will valid if we do it ourselves? Does it have to be notarized? Do we have to use an attorney?
A. There is no requirement that an attorney prepare a will. In fact, in Texas, a will written completely in our handwriting and signed is valid without the need for any witnesses. There also is no requirement that a will be notarized to be valid.
Having said this, it is my advice to have an attorney prepare your will and avoid any possible problems. Doing it yourself may save a few dollars, but a simple mistake will cost your loved ones substantially more, both in terms of money and time.
It also does not have to cost much money to have an attorney prepare a will. Many attorneys will prepare a simple will for not much more than the form kits will cost you. I suggest you make some phone calls and shop around with your local attorneys. My guess is you will find one that charges what you believe is a reasonable price.
Q. I thought it would be a good idea to have a living will so that I would not be kept alive by a machine. Now I am not sure that I want todo anything that must speed up my death. How do I go about revoking a living will?
A. A living will, or directive to physicians as it is formally known, is a very simple device to create. All that is necessary is to fill in a form and have it witnessed by two people. You also can make an oral living will at the hospital in front of the doctor and two witnesses.
A living will can also be easily revoked. The easiest way is to simply tear it up. If, however, you do not have the document, you can simply revoke it orally by telling your doctor that you have changed your mind.
Remember, if you want a free copy of a living will, send me a self addressed stamped envelope at the address below:
Richard Alderman
Q. I am a beneficiary under a relative's will. The executor refuses to talk to me or tell me what he is doing. Can he do this?
A. Probably not. The executor has a duty to properly inventory and administer the estate. Although there are some time limits on how promptly he or she must act, there is really no requirement for periodic reports to the beneficiaries.
I suggest you simply speak with the executor and explain that you would like to know what is going on. If you do not hear from him in a reasonable period of time, under the law 15 months, you can demand an accounting.
Q. I am going into the hospital. I want to give my son the power to deal with my affairs while I cannot. I have been told that I should sign a durable power of attorney.
A. A durable power of attorney is a form you use to give someone else the power to deal with things that you ordinarily have control over. In essence, you are giving the other person the right to do whatever you could do.
For example, you have the right to sell your property, to cash certificates of deposit or to write checks. You can give all of these rights to another person by signing a durable power of attorney.
A durable power of attorney sounds like what you would want to use to give your son the right to handle your affairs while you are unable to. I suggest, however, that you limit his rights to only those that are absolutely necessary. A durable power of attorney can be as broad or as limited as is necessary. It is probably a good idea to speak with an attorney and explain just what you want to accomplish. The attorney can then draft the appropriate power of attorney.
By the way, the difference between a durable power of attorney and a simple power of attorney is that a durable power of attorney continues if you become incapacitated, for example, with Alzheimer’s.
Q. I do not own much. If I handwrite a will and have two people witness it, is it valid?
A. A will completely handwritten and signed is valid even without being witnessed. Having said this, however, it is still a good idea to get an attorney to prepare a will for you
Q. My father passed away with a will leaving everything to my mother. At the time of his death, everything my father owned was either in my mother's name or she was named as beneficiary. Is there any reason to spend a lot of money probating the will?
A. A will must be probated to put its provisions into effect. If there is no property in the estate of the deceased, however, there is nothing to be transferred under the will. Based on what you say, there may not be a reason to probate the will.
Having said that, however, you still may want to speak with a private attorney just to ensure you are not overlooking anything.
In a recent answer to a letter I discussed how a step-child inherits from his father if there is not a will. There may have been some confusion about what I said. The situation I was talking about was a father having a son and remarrying. In this case, the son is the mother's step-child. Upon the death of the father, the child inherits. In other words, a step-child inherits from his parent, not his step-parent. Sorry about any confusion this may have caused.