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PROBATE AND GUARDIANSHIP

Underwood Perkins, PC. Probate and Guardianship section handles all aspects of the probate of estates and assists executors, administrators and trustees in estate and trust administration. Attorneys of the Probate section are frequently appointed by the court to act as administrators and guardians. Underwood Perkins has an active probate litigation practice, litigating contested beneficiary and heirship rights, assisting creditors in claims against estates, establishing guardianships for minors and adults and assisting in mental illness determinations. Our firm provides consultations in all aspects of elder law, including planning for nursing home admission, durable powers of attorney, durable powers of attorney for health care and living wills.

Here are some frequently asked questions regarding Powers of Attorney, Guardianships, Probating Wills and Administration of Estates:

POWERS OF ATTORNEY

Q. What is a Power of Attorney?

A. A Power of Attorney is a written document in which one person (the "principal") appoints another person (the "attorney-in-fact") as an agent and grants the agent authority to perform certain acts. The Power of Attorney may be general and include broad authority to act on behalf of the principal, or it may be limited to certain specified acts or circumstances. The Power of Attorney is normally used to designate an agent to handle financial matters on behalf of the principal.


Q. What is a Medical Power of Attorney?

A. A Medical Power of Attorney allows the designated agent to make decisions about health care for the principal. The agent can make decisions that the principal would make if he or she were competent. There is now a mandatory statutory form for the Medical Power of Attorney.


Q. What is a Directive to Physicians and Family or Surrogates (Living Will)?

A. A Directive to Physicians is a document signed by a competent principal directing his physician to withhold life-sustaining procedures if the principal is suffering from an irreversible or terminal condition. The Directive can be revoked at any time by the principal.


GUARDIANSHIPS:

Q. What is a guardianship?

A. A guardianship is a court-created relationship where the Court removes the rights of an individual, called a Ward, and invests certain rights and duties in another person, called the guardian.


Q. How is a guardianship initiated?

A. Any interested person may request the probate court to appoint a guardian for a person believed to be incapacitated.


Q. For purposes of guardianship, what is an incapacitated person?

A. A person who is substantially unable to provide food, clothing, or shelter for himself or herself, who is unable to care for his or her own physical needs, or who is unable to manage his or her own financial affairs because of a mental or physical condition may be incapacitated and placed under guardianship. A minor is also considered to be incapacitated.


Q. What types of guardians are there?

A. Generally, there is a guardian of the person and a guardian of the estate. A guardian of the person has the duty and power to provide the incapacitated person with clothing, food, medical care, and shelter. A guardian of the estate has the duty and power to manage the incapacitated person's financial affairs. The positions may be held by two individuals, or one person can fill both positions.


PROBATING WILLS AND ADMINISTRATION OF ESTATES:

Q. What is probate?

A. Probate is the court process by which a will is proved: (1) to be valid or invalid, (2) to be the last will of the deceased person, and (3) to have revoked all previous wills. When a will is proved in court to be valid, it is "admitted to probate". However, the term "probate" usually includes all proceedings related to the administration of the estate of a deceased person. The deceased person is referred to as the "decedent." Most probate proceedings are started by filing an application to probate a will and require a hearing in court.


Q. Is probate always necessary?

A. Probate is necessary if there are assets that are titled in your name that need to be transferred to the persons named in your will (or your heirs-at-law if there is no will). Probate will also be necessary if there are debts owed to creditors. If all your property passes to other persons by means of beneficiary designations, and you have no debts at the time of your death, then probate will not be necessary. Most people cannot structure their assets in such a manner as to avoid probate, so a will is therefore desirable.


Q. What is the time limit for probating a will?

A. Generally, a will must be admitted to probate within four years after the date of death. There are some limited exceptions to the four-year time limit. If more than four years have passed since death, ask your attorney to determine if an exception applies.


Q. What are executors and administrators?

A. An executor is the person or institution you name in your will to administer your estate. An "administrator" is a person or institution appointed by the probate court, not by you.


Q. What are letters testamentary and letters of administration?

A. These are documents issued to the executor or administrator demonstrating authority to act for the decedent's estate. These documents are issued by the Probate Clerk or County Clerk after the executor or administrator has been appointed by the court and has qualified.


Q. If a person dies without a will (intestate), how are heirs of the estate determined?

A. The heirs of the intestate decedent and their shares of the estate must be determined in an heirship determination proceeding. At a court hearing, the judge hears evidence identifying all heirs and their shares of the estate. A court-appointed attorney represents the interests of unknown heirs, known heirs who cannot be located, heirs suffering from disability, and minors.


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