Frequently Asked Questions

Do you have questions about estate planning or the probate process? Do you need to know more about family law in Dallas? Are you wondering if you have a personal injury case? Are unsure if you need a lawyer?

The Ashmore Law Firm, PC provides the answers to frequently asked questions (FAQs) about estate planning, probate law, family law and personal injury law. Please select a category from the box below to narrow your FAQ search.
 

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  • How do you keep your kids from spending their inheritance all at once?

    There are Trusts the can be set up within a Will to protect children from spending their inheritance all at once. The Trust can take effect after you die or take effect while you are living.

    The Trust will ensure that you have a trustee in place to give distributions to your beneficiaries (children or grandchildren). The trustee can distribute the funds to the beneficiaries for health, education, maintenance and support. These terms ensure that a child or grandchild does not get a lump sum of money outright. This type of Trust is called a Spendthrift.

  • Do I Need an Attorney if I’m Buying Real Estate in Texas?

    We recommend that you consult with an attorney before buying real estate. An attorney can be especially important in complex housebuying transactions. Also, depending on the volume you are purchasing, there are entities that you can create for liability purposes, asset protection and creditor protection.

  • What is Breach of Fiduciary Duty?

    If a person is named as an executor or trustee of an estate, that person is considered a fiduciary. As a fiduciary, they are required to act in the best interest of the estate.

    If a fiduciary does not act solely in the best interest of the estate, they can be sued for breach of fiduciary duty by the beneficiaries of that estate.

    Examples of breach of fiduciary duty include:

    • Mismanaging funds
    • Putting personal interests before the interests of the beneficiaries
    • Not properly distributing assets
    • Not distributing assets in a timely manner
    • Being a detriment to the estate

    An attorney can assist a fiduciary to ensure they are not held liable. We recommend speaking with a qualified probate or estate planning attorney before acting as a fiduciary.

  • Can the trustee of an estate be held personally liable if they do not fulfill their duties?

    Yes, the trustee of an estate can be held personally liable. If a trustee does not make correct distributions and/or proper allocations exactly as the Trust states, they can be held liable for their wrongdoing and the beneficiaries of the Trust could sue them for breach of fiduciary duty.

    A probate attorney can guide a trustee through the steps they need to take to ensure they fulfill their fiduciary duties and are not held liable. The Ashmore Law Firm has been serving the Dallas community for over 25 years. Please contact our office with any questions at 214.559.7202.

    Want more information? We have additional frequently asked questions about the Probate process here.

  • Can the executor of an estate be held personally liable if they do not fulfill their duties?

    Unfortunately, the answer to this question is yes, an executor can be held liable. If you have an attorney, ensure that they are a qualified probate attorney. There are many things an Independent Executor should know in order to make sure they fulfill their position properly. A qualified attorney will tell you exactly what you should and should not do as an executor.

    If an executor does not do their job the right way, the beneficiaries of the Will can potentially sue for “breach of fiduciary duty”. In that instance, the executor can be held personally liable to all of the beneficiaries under the Will.

    Learn more information about being an executor by reading our article, 9 Deadly Mistakes an Independent Executor Can Make.

  • Where should I keep my Will?

    Let’s first start where NOT to keep your Will. We recommend to our clients NOT to keep their original Will in a safe deposit box. The reason for this is in order to gain access to the safe deposit box, the banks generally require some type of order from the court. An order from the court adds on not only delay, but an expense that is not necessary.

    We always recommend that our clients keep their original Will in a type of fire proof lock box or safe that they have in their home. It is important that the original Will be kept in a safe place where access is not easily gained by family members or friends. The reason for this is if a family member or friend gains access to the original Will and tears it up, there is a presumption that you revoked it. Although in the state of Texas a copy of a Will can be probated, the applicant that is generally named executor, must first overcome the presumption that the Will was in fact destroyed or revoked.

    Want more information on Wills? Request our FREE Book,

    Do I Really Need a Will?

  • My spouse wants a divorce, but I don’t. Can I stop the divorce?

    If your spouse wants to pursue a divorce, there is nothing you can legally do to stop the process.  You might try to convince him/her to attend marriage counseling with you to see if you can salvage your relationship, but he/she is not obligated to do so.

    Learn about how to begin the divorce process in our blog, I Decided on Divorce - What Now? 

  • How Long Does the Probate Process take to Complete in Texas?

    The Probate process can take as short as 30 days to complete (if you have a Will) and as long as several years, depending on the complexity of the estate. There are rules about when and where the probate process must occur. For example:

    • If there is a Will, it must be submitted for probate within four years from the date of death for all property to pass under the terms of the Will.
    • The estate must be filed in the county where your loved one lived or where his or her principal estate was located.

    Believe it or not, it was ultimately up to your loved one whether or not his or her estate will go through probate. Your loved one may have planned for it, or simply thought he or she would live forever and had plenty of time to tackle estate planning.

    There are a number of documents that are needed to settle your loved one’s estate. Use our Probate Checklist to see what documents to you'll need.

  • Will I lose my retirement or pension in my divorce?

    Retirement or pensions can be considered community property or marital assets if acquired during the marriage.  If earned prior to marriage, only that amount acquired after the marriage would be considered community property.  However, you may be able to maintain 100% of your retirement or pension by having it offset with other assets.

    Find out what items are considered assets in our video: What Does My Estate Consist Of?

  • How will my spouse be notified if I file for divorce?

    When you file the Original Petition for Divorce, your spouse will be notified in one of two ways.  He/She will either be served by a process server or constable, or a Waiver of Service can be signed.  Most couples opt for the Waiver of Service in an amicable divorce.

    For more information on the divorce process, read our FREE book: What you Need to Know About Divorce in Texas.

  • What Is a HIPAA Authorization Form?

    A HIPAA authorization permits you to name individuals to have access to your medical information and records.

    The Health Insurance Portability and Accountability Act (HIPAA) was enacted by the U.S. Congress and signed by President Bill Clinton in 1996.  Title I of HIPAA protects health insurance coverage for workers and their families when they change or lose their jobs.  Title II of HIPAA, known as the Administrative Simplifications (AS) provisions, among other things addresses the security and privacy of health data.

    We all have a right to privacy of our medical records.  No one is allowed to get any medical information without our consent.  However, there may be times when a family member or close friend may need to access your medical records and you are not able to give consent.  For example, if you had a surgical procedure and something happened during the surgery that put you in a coma, your family would want to access your medical records to determine if the hospital staff or doctor did something wrong.  Without your consent, your family will need to go through the legal process to obtain these records.  In this example, you are not able to give consent.  Signing a HIPAA Authorization allows you to name an individual or individuals to have access to your medical records and other medical information, without having to go through any court process or hiring an attorney just to get the records. 

     As you can see, it is important to have the proper documents in order for your estate.  Working with a qualified estate planning attorney is necessary to make sure things are prepared properly to relieve any concerns you might have.

    Want more information on what's included in an Estate Plan? Read our article, Estate Planning 101.

  • What are the requirements to write a Will in Texas?

    To prepare a Will in Texas, you must:

    • Be at least 18 years old, legally married, or serving in the armed forces.
    • Be of sound mind at the time of executing the Will.
    • Not be forced or deceived to make the Will.
    • Have the intention to distribute property upon your death.

     

    For information about writing a Will in Texas, request our FREE Book, Do I Really Need a Will?

  • What is a Durable Power of Attorney for Healthcare?

    A durable power of attorney for healthcare (also known as a Medical Power of Attorney) is a document that allows the person or persons you have designated to make medical decisions on your behalf.  This document can only be used if you are incapacitated and are not able to make your own medical decisions.

    You definitely want to choose this person carefully.  The person you choose should be able to do three key things:

    1. Have a full understanding of your medical situation regarding your health and treatment.

    2. Always keep your best interests and wishes in mind when making medical decisions pertaining to you.

    3. Be able to handle the stress of making tough medical decisions.

    Want more information on what's included in an Estate Plan? Read our article, Estate Planning 101.

  • What is a Statutory Durable Power of Attorney?

    The statutory durable power of attorney is a document that allows the person or persons you have designated to handle your finances.  This document is used if you are incapacitated and are not able to manage your financial affairs yourself.

    A statutory durable power of attorney can also be used if you need someone to take care of your finances immediately, for example if you are planning to be out of the country for an extended period of time but will need someone to continue taking care of your house or bills.

    The person you designate must act in your best financial interest and according to your wishes.  Basically, this document answers the question, “If you become incapacitated, who do you want stepping in on your behalf?”  Without a power of attorney, the judge is the one who will answer this question, not you. That's why it's so important to have your estate planning documents in order.

    Want more information on what's included in an Estate Plan? Read our article, Estate Planning 101.

  • How soon does an executor need to distribute the assets of an estate?

    There is a not an exact time frame in Texas for the distribution process, but we recommend that you collect all of the assets of the estate first. You must also make sure before distributions can be made, whether or not there are going to be any taxes owed, such as, income tax from the first of the year till the time of the person's death, and any estate tax (If the estate is over the estate tax exemption amount). Also, there are ways the beneficiaries of the estate can attempt to force you to make distributions, but they must first go through the Probate Court.

    There are a number of documents to settle your loved one's estate, use our Probate Checklist to help make sure you have the correct documents needed during the probate process.

  • What is the difference between Probate Assets and Non-Probate Assets?

    Probate Assets

    Includes all interest and assets, real or personal, tangible or intangible, that are owned outright by a person at the time of his or her death. "Probate assets" are those assets that have no beneficiary designation and will pass under the terms of the Will.

    Non-Probate Assets

    These assets pass upon death to the named survivor or beneficiary "outside of probate." These assets are those that do not pass under the terms of a Will. They are assets that pass to a beneficiary named on the document that was signed when the asset was created.

     

    Our article, Probate Assets vs. Non-Probate Assets goes into more depth on the difference between these assets.

  • Can I get alimony in the state of Texas?

    No. In Texas, you cannot get alimony, but you can request spousal support. It is not awarded often and there are many requirements that you have to meet before it is awarded.

    Find out the criteria that has to be met in order to qualify for spousal support in our blog, Understanding Spousal Support & Alimony in Texas.

  • My Loved One Passed Away, What Information do I Need to Probate their Estate?

    There are a number of documents that may be needed to settle your loved one’s estate. Once you locate these important papers, make sure and put them together in a safe place. Here is a list of documents you may need:

    • Last Will and Testament or any other estate planning documents
    • Safe deposit rental agreement and keys
    • Passwords for computers and online accounts
    • Living trust agreements
    • Life insurance, health/accident and sickness insurance policies
    • Financial statements, including those pertaining to bank accounts, pensions, individual retirement accounts (IRAs), certificates of deposit, stocks and bond certificates
    • Income tax returns for the past three years
    • Birth and death certificates
    • Deeds, deeds of trust, mortgages and mortgage releases, title policies, motor vehicle titles, lease statements for auto or real estate rentals
    • Military records and discharge papers
    • Unpaid bills and notes
    • Bankruptcy filings and releases
    • Nuptial agreements, marriage license, divorce papers

     

    A qualified probate lawyer can be a great asset to help you make sure that you are handling the estate correctly as well as assist you with any legal matters.  If you haven’t already contacted your loved one’s attorney or hired one on your own, you should do so soon.

    For more information, request our free book, What to do When a Loved One Dies.

  • What is Mediation? Why Am I Being Ordered To Do It?

    Mediation is an informal process allowing parties to work with a neutral third party to help negotiate and settle conflicts. Mediators don’t take sides and are used for the sole purpose of trying to help people reach a settlement.

    A high percentage of divorces are handled in mediation. In fact, most Dallas judges will want you to attend mediation first, to try to reach a settlement. They want the parties to agree to creative settlements that could not otherwise be ordered by a court during trial. Resolving disputes during this mediation process is very cost-effective. It can save both parties thousands of dollars.

    Find out more information about the mediation process by requesting our free divorce book or reading our article on Using Mediation in a Divorce.

  • What is the difference between Community Property & Separate Property?

    In Texas, property is viewed as separate or community. If you are married, unless there is clear and substantial evidence to the contrary, any assets that are acquired during the marriage are deemed to be owned one-half by the husband of the marriage and one-half by the wife of the marriage. If you are single, a single individual’s estate in Texas consists of all property owned by such individual at the time of death.

    Many couples are confused and think that once they are married, everything that they have is community property. This is not true. If you are married, here is a list and description of assets that would be considered separate property

    1. If you owned any property prior to getting married, that is your own separate property.

    2. Any property that was acquired during the marriage by a gift,  devise, or descent, which could be from an inheritance from Uncle Ted or some other friend or relative, would be viewed as separate property and not community property.

    3. If you acquired property during your marriage that was traceable as a change that occurred from previously owned separate property you had, this property may still be considered as separate property.

    4. If you have property that was transferred from one spouse to another in the form of a gift, this is viewed as separate property.

    5. Damages awarded from a personal injury lawsuit, except for damages representing your earning power, would also be separate property.

    However, income from separate property during the marriage is considered community property. It gets complicated if one of the spouses dies without a Will, especially if there is separate property involved.

    If you’re uncertain whether or not your assets are community property or separate property, you need to consult a qualified attorney.