Law Office of Eduardo T. Saucedo

Estate and Business Planning, Probate & Tax

Frequently Asked Questions

At the Law Office of Eduardo T. Saucedo Law Firm, we continuously strive to provide the most accurate and useful information to our clients. Here are some questions most oftenly asked of us.

• Guardianship FAQs

What is guardianship?

Guardianship is the legal process for appointing a person to protect and care for the Person and/or property of and individual, often referred to as a "Ward," who does not have the capacity to manage his or her own interests.

Are there different types of guardianship?

Yes, there are two different types of guardianships. A Guardian of the Person is responsible for the Ward's personal, medical and welfare decisions. A Guardian of the Estate manages the Ward's property and assets. A person can be appointed both Guardian of the Person and Estate for a Ward.

When should one seek guardianship?

When a disabled child reaches the age of majority, as their parents do not remain their natural guardian. When a minor inherits or is awarded money or property. In Texas, a minor is presumed incapable of managing finances, but the law does not automatically provide that the minor's parents can manage the inherited money or property. In this instance, a Court has to appoint a guardian of the estate.
• When an elderly person who has been affected by a physical or mental condition that has left them unable to:
• Feed, clothe or shelter him or herself;
• Care for their individual physical health; or
• Manage their personal financial affairs.

Are all of the Ward's rights removed?

No, the only rights that will be removed are those the court deems the proposed Ward is unable to handle on their own. These rights may include the right to:
• Determine residence
• Consent to medical treatment
• Make end of life decisions
• Manage, buy, or sell property
• Marry
• Vote

What is the first step in attempting to gain guardianship over an incapacitated person?

In order to begin the guardianship process, the proposed guardian must file an application with the court stating their request for appointment. With this application, a letter from the proposed Ward's doctor or psychiatrist must also be filed to verify that the proposed Ward is, in fact, incapacitated.

Who can become a guardian of an incapacitated person?

The best choice is a person who is acceptable to the proposed Ward and who sincerely and unselfishly cares for the person with a disability. In addition, the guardian should live near that person so that the guardian can be active in his or her care, treatment, and training.

Will anyone be representing the proposed Ward's interests?

Yes, the Court will appoint an Attorney ad Litem to represent the proposed Ward. The Attorney ad Litem will usually visit the incapacitated person in order to gain a full understanding of the proposed Ward's situation and needs.

• Probate FAQs

What is the probate process?

The probate process is the administration of a person's estate after the court has recognized their death. This process occurs whether a will has been created or not.

What is an estate?

An estate consists of the assets owned by someone at the time of their death. Examples of assets would be cash, real estate, bonds, cars, etc.

Who is the executor or administrator?

The executor or administrator is the person entitled to represent the estate. The main tasks carried out by this person are:
• Identifying and collecting the assets of the decedent's estate;
• Paying any debts owed by the decedent; and
• Distributing remaining assets according to the will or pursuant to Texas law if a will does not exist.

Are any of the family members or heirs responsible for the decedent's debt?

When someone dies, any creditors that the decedent may have at the time of his or her death are entitled to recover their debt only against the assets owned by the decedent at the time of his death. With a few exceptions, other family members are not personally liable for debts of the decedent.

How is an estate administered if someone dies without a will?

If the decedent does not leave a proper will, he or she is said to have died intestate. In that case, heirs are determined by the Texas Estates Code. The estate is then divided and distributed amongst those heirs.

Are the different ways to administer an estate?

Yes, in Texas, the four most common types of estate administration are:
• Testate Administration- Probating an estate in this manner requires that the decedent left a valid will. The person who is to become executor or administrator is named in the will. He or she will then file the will for Probate with the court and ask to be appointed executor. The assets will be distributed as outlined in the decedent's will. In general, this style of probate administration is much less complicated that those without a will.
• Dependent Administration- In this type of probate all actions made by the executor or administrator (e.g., selling real estate, casing in stocks) of the estate are dependent on the court's approval. The administrator must also file accountings of the decedent's estate each year the probate case continues. This style of probate exists to secure the rights of the heirs and to provide a greater level of protection to the administrator. Dependent Administration is always used unless all beneficiaries agree otherwise.
• Independent Administration- Under Texas law, it can be decided that the administrator does not have to depend on the court for approval when distributing the decedent's estate. Also, yearly accountings of the estate are not required for filing with the court. In order for the court to authorize this type of probate the will must specifically allow for independent administration or all heirs and beneficiaries must be in complete agreement.
• Muniment of Title- Under this method, the will is recognized by the Court as valid, but no executor or administrator is appointed. Rather, the will is recorded in the deed records of the county in which the decedent resided at the time of his death, and that recording serves to link the chain of title in any property from the decedent to the persons named in the will. Thereafter, a certified copy of the will can be used to transfer title to any property. This probate process may take place four years after the decedent's death.

• Estate Planning FAQs

Why is it important to establish an estate plan?

If you do not make proper legal arrangements for the management of your assets and affairs after your passing, the state's Estates Code will dictate the distribution of your estate. This often results in family members, whom you may not have otherwise chosen, receiving your assets the estate pays the tax, if any. Probating an estate without an estate plan can be expensive and tie up the assets of the deceased for a prolonged period before beneficiaries can receive them.

What is included in my estate?

Your estate is simply everything that you own, including:
• Your home or any other real estate that you own
• Any interests you may have in any business
• Your share of any joint accounts
• The full value of your retirement accounts
• Any life insurance policies that you own
• Transfers made to a trust within 3 years of death.

Does estate planning include documents other than a will?

Yes, your plan should include the following documents:
• Medical Power of Attorney- This form allows you to designate an agent, the person you would like to make medical decisions for you in the event you are unable to. This document should include a Health Insurance Portability and Accountability Act (HIPAA) release which allows the release of protected medical information to your agent.
• Statutory Durable Power of Attorney- This documents assigns who you want to manage your finances in the event you cannot make financial decisions for yourself. This form is only valid while you are living.
• Directive to Physicians- This document is used to provide instructions directly to a doctor regarding a patient's desires for being placed on life-support if that person ends up in either 1) a terminal condition or 2) an irreversible condition. On the face of the form, options are provided for either allowing or restricting life support. The form also provides definitions for what constitutes a "terminal" condition or an "irreversible" condition. Likewise, it defines what life support or "life sustaining treatment" is.
• Declaration of Guardian Before Need Arises- This document allows you to choose who will protect and care for you and your property if you become incapacitated.
• Declaration of Guardian of Minor Children-This will specify who you want to be guardian of the person and estate of your child in the event one is needed.
• Trusts-Your estate plan may need to include a variety of trust documents such as an Irrevocable Life Insurance Trust, a Revocable Living Trust or other documents depending upon your desires and the needs of your family.

• Special Needs Planning FAQs

Why is it important to create a Supplemental or Special Needs Trust?

It is likely your special needs child or disabled loved one will be disqualified from any government assistance if you leave money, property, or any other assets to them after your passing. This means that he or she would not receive any Supplemental Social Security Income (SSI) or Medicaid Benefits. A Supplemental or Special Needs Trust ensures the high quality of life that your disabled loved one deserves by receiving both the assets you choose to leave them as well as government assistance.

Will SSI and Medicaid benefits be enough to support my disabled loved one?

No. Supplemental Social Security Income and Medicaid provide only the bare minimum your loved one needs. If a Special Needs Trust exists along with government benefits, certain life-enhancing expenditures are allowed for without disqualifying your loved one from public benefits. Special needs planning may allow your loved one to enjoy additional education and tutoring, annual check-ups at an independent facility, hobbies or recreational activities, funds for trips or vacations, etc.

Is it necessary to partake in special needs planning if our family is wealthy and not interested in government assistance?

Yes. A Supplemental Needs Trust addresses the specific needs of the disabled beneficiary and their future lifestyle. Likewise, it also safeguards the trust from being depleted by living necessities and medical bills that would otherwise be covered under government aid.

When is the best time to create a Special Needs Trust?

A Supplemental Needs Trust can be established at any time before the beneficiary turns 65. It is very common to create a Supplemental Needs Trust early in a child's life as a long term means for holding assets to benefit the disabled family member. This is particularly true of parents who wish to leave funds for a child's benefit after their deaths.