- What is probate?
- What is a personal representative?
- What does a personal representative do?
- What is a guardianship?
- What is a Will?
- What does a guardian do?
- What is a Healthcare/Medical Power of Attorney?
- What is a Financial Power of Attorney?
- What is a trust?
- What is mediation?
What is probate?
Probate is the initiation of a legal process to settle a decedent’s estate. There are different types of probate proceedings depending on many factors, such as whether there is a will, whether an administration is necessary, whether there are debts in the estate, etc. This process may include the appointment of a personal representative (called an Executor or Administrator), whose job it is to administer the estate and ultimately distribute the property to the heirs or beneficiaries.
What is a personal representative?
A personal representative of an estate is sometimes appointed by a court to be the person responsible for and with legal authority to administer the estate and ultimately distribute the property to the heirs or beneficiaries.
What does a personal representative do?
In Texas, once a personal representative has been appointed by a court, he/she must qualify. Qualification is accomplished by taking an oath and in some cases, posting a bond. Once qualified, the personal representative has the responsibility to collect, manage and protect assets of the estate. The personal representative will have 90 days to file with the court a verified Inventory, Appraisement and List of Claims of all of the estate’s real property located in the state of Texas and all of the estate’s personal property, wherever it may be located. The steps thereafter in administering the estate depend on whether the administration is a dependent administration or an independent administration, which means, with or without court supervision. This is determined by whether the decedent did or did not leave a valid Last Will and Testament, the terms of the decedent’s Will, whether there is a contest to the decedent’s Will, and/or the provisions of the court’s order of appointment. Regardless, the personal representative is charged with resolving all of the estate’s debts and taxes and addressing claims belonging to the estate. Once this has been done, the personal representative may then distribute the estate property to the heirs or beneficiaries of the estate either as instructed in the decedent’s Will or pursuant to the laws of descent and distribution.
What is a guardianship?
Guardianship is a legal proceeding available when a person cannot act for himself or herself. It is most commonly needed when an elderly person is no longer able to make health care and/or financial decisions. A guardianship may also become necessary when a disabled child turns 18, so that the parents can continue to make health care and financial decisions on behalf of the child. The person who is appointed by the Court is called a guardian. The guardian’s authority is limited to those areas of life in which the evidence proves the person is incapacitated.
What is a Will?
A Last Will and Testament is a legal document that contains your intent as to how you want your property and assets to be distributed after you pass. This legal document is not operable until the time of your death. All persons eighteen years of age or older should create a Will, which must be drafted and executed in compliance with the laws of your state, should name an executor, and should cover distribution of everything you own.
What does a guardian do?
Depending on multiple factors, guardianships can be over the “person,” over the “estate,” or both. A guardian of the person will take care of the physical well-being of the person subject to the guardianship, including making health care and placement decisions. A guardian of the estate will take care of the real and personal property of the person subject to the guardianship. More often than not, the same individual may serve in both roles. There are quite a few responsibilities to serving as a guardian, so you should discuss with an attorney the full extent of what a guardianship is, and whether one is necessary.
What is a Healthcare/Medical Power of Attorney?
An individual (the “principal”) can grant power to another person (“the agent”) through a legal document to make decisions about the principal’s health care and medical treatment. Because “health care” means any treatment, service, or procedure to maintain, diagnose or treat your physical or mental condition, your agent has the power to make a broad range of health care decisions for you.
Your agent’s authority begins when your doctor certifies that you lack the capacity to make health care decisions. Even after you have signed a medical power of attorney, you have the right to make health care decisions for yourself as long as you are able to do so, and treatment cannot be given to you or stopped over your objection.
What is a Financial Power of Attorney?
An individual (the “principal”) can grant power to another person (“the agent”) to make decisions about the principal’s property and finances. It can be a general, broad power to address all property and financial issues, or it can be limited to the following specific areas:
- Real property transactions
- Tangible personal property transactions
- Stock and bond transactions
- Commodity and option transactions
- Banking and other financial institution transactions
- Business operating transactions
- Insurance and annuity transactions
- Estate, trust, and other beneficiary transactions
- Claims and litigation
- Personal and family maintenance
- Benefits from social security, Medicare, Medicaid, or other governmental programs or civil or military service
- Retirement plan transactions
- Tax matters
What is a trust?
A trust is a legal entity that owns assets for the benefit of a third person, which can include yourself and/or other beneficiaries. The grantor of the trust is the person who sets up and funds the Trust. The trustee is the person charged with keeping the assets safe and properly invested for ultimate distribution to the beneficiary or beneficiaries at the proper time. The grantor can be very specific as to how the funds of the Trust are held, invested and distributed. The grantor can also place restrictions or conditions as to when a beneficiary receives their interest from the trust, such as requiring the beneficiary to reach a certain age, or reach a certain milestone in their life. The trustee can be the grantor of the trust, a corporate/professional trustee, or just someone the grantor knows and trusts.
What is mediation?
The mediation process assists parties with settlement discussions and negotiations so that they may resolve their own disputes instead of a judge or a jury deciding who will win and who will lose a case. It also is a chance to avoid the expense and stress of protracted litigation.
Although the court has the authority to order parties to mediation, it truly is a voluntary, confidential process that is aided by a neutral third party called a mediator. Good faith is required, which means the parties are to participate in the mediation with the intent to work toward a resolution of the case to end the litigation.