Texas family law attorney Megan Rachel proudly represents clients in the communities of Allen, Frisco, Rockwall, Carrollton, Garland, Richardson and McKinney as well as all of Collin, Denton, Rockwall and Dallas Counties. From her offices in Plano, TX, Ms. Rachel provides skilled, compassionate legal counsel to clients with issues related to family law, divorce, adoption, child custody, child support and division of property as well as wills and probate.   Please click on the following links for more frequently asked questions about  Divorce,  Wills and Probate.

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Frequently Asked Questions About Divorce

1. How long will it take to finalize my divorce?

The Petition for Divorce, which is the first pleading filed in a divorce action, must be on file with the court for a minimum of 60 days before the divorce can be finalized. If the divorce is an agreed divorce, meaning that the parties agree to all terms of the divorce and sign the final decree or a waiver, it can be finalized as soon as the sixty-day waiting period expires. If there is a dispute involving the conservatorship of the children or the division of the martial estate, the divorce proceeding could take much longer.

2. If my spouse and I agree to divorce and agree on all the terms that are to be included in the divorce decree, can we use the same attorney?

No. An attorney cannot represent both parties in a divorce action. However, while it is in each party's best interest to obtain an attorney, there is no requirement that both party's be represented by an attorney.

3. Does Texas have legal separation?

No. You can not file for a separation, only for divorce. If you file for divorce you can request temporary orders from the court to deal with issues such as who will live in the house while the divorce is pending, who will have temporary custody of the children, what the visitation schedule with the children will be and how much temporary child support and/or spousal support will be paid. Temporary orders remain in effect during the pendency of the divorce.

4. What is the difference between a restraining order and a protective order?

A protective order will be issued if the court finds that family violence has occurred and is likely to occur in the future.

In general, a restraining order is intended to keep a party from harassing, threatening and/or causing physical harm to the other party. A restraining order is also intended to keep a party from draining financial accounts prior to the time that a hearing can be held. A restraining orders is also intended to keep a party from destroying, hiding or selling community assets prior to the time a hearing can be held. In other words the purpose of a temporary restraining order is to help maintain the status quo between the parties until there is a hearing.

5. Because Texas is a community property state, does that mean all assets will be divided equally?

Not necessarily. If the parties are unable to reach an agreement with respect to the division of the community assets, the court will make a division in a manner that is just and right. When making a division of the community assets the court can take into consideration many different factors including but not limited to fault in the break up of the marriage, the earning capacity of the spouses, the health of the spouses and the age of the spouses.

6. Is alimony available in Texas?

Yes. The party from whom alimony is sough must have, within a certain time frame been convicted of a crime that constitutes an act of family violence, or, the parties must have been married for at least ten years prior to the time the divorce action was filed. Under the latter requirement, the court must also determine that the party seeking alimony lacks the ability to provide for their own minimum needs. Additionally, there are numerous other factors that the court must consider when making a determination of whether alimony is appropriate in a particular case.

7. If I am involved in a divorce action will I be required to attend mediation?

More than likely, yes.

8. If my spouse and I are named joint managing conservators of the children, does that mean the children will live with each parent one half the time?

No. There is a presumption under Texas law that parents should be named joint managing conservators. Joint managing conservators are awarded certain rights and responsibilities with respect their child. Possession and access is a different and separate issue. Parties can be named joint managing conservators with one joint managing conservator being awarded primary possession of the children and the other joint managing conservator being awarded visitation.

9. If I am awarded custody of the children, how much child support can I expect?

As a general rule a party who is awarded custody of the children can expect to receive child support equal to 20% of the non custodial parent's net income for one child, 25% for two children, 30% for three children and 35% for four children and so on. As additional child support the non custodial parent will be required to either provide health insurance for the children or, if the custodial parent is providing health insurance for the children, reimburse the custodial parent for the cost.

10. Are bonuses included in gross income when child support is calculated?

Yes. Money the party paying child support receives from any source, including bonuses and dividends from investments is included as income.

11. What is wage withholding?

In any proceeding in which child support payments are ordered, the court must order that child support be withheld from the paychecks of the person who is obligated to pay child support.

12. How old does a child have to be before they can choose who they want to live with?

A child who is 12 years of age or older may sign a statement to be filed with the court setting forth the name of the person who the child prefers to the exclusive right to designate the primary residence of the child. Such preference is subject to the court's approval.

13. Once a court orders a specific amount of child support, can that amount ever be changed?

Yes. If you become aware that the party who is paying child support has a greater income than when the court ordered the child support, either because of a raise, a promotion, a new job etc., you are entitled to seek an increase in child support. Conversely, if a party who pays child support has a lesser income then when the court ordered child support, that party is entitled to seek a decrease in child support.

14. If my ex spouse has failed to pay courted ordered child support, what can I do?

You may be entitled to file a Motion for Enforcement of Child Support Order. If the court finds that your ex spouse has failed to pay child support under an enforceable order and he/she has the ability to pay, the court can hold your ex spouse in contempt of court, commit him/her to jail for a period of time and order him/her to pay your attorney fees and court costs.

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Frequently Asked Questions About Wills

1. Where is the best place to keep my signed original will?

The best place is probably in a safe deposit box because it will protect the documents from theft, fire, accidental loss, and most other types of damage or harm. A potential problem, though, is getting it opened after your death.

If you decide to keep your will in a safe deposit box, consider naming a family member or your Executor or trustee as a joint holder on the box. That should simplify matters following your death because someone will be able to get into the box without delay. Also, if you live in a flood zone, be sure to put the document in a water-tight plastic bag. As many shocked Texans have learned, water damage caused by flooding can ruin the contents of a safe deposit box.

Many people keep their original will at home in a secure place. If you have a safe at home, that can be a good place to keep it. Be aware though, when thieves enter your home and discover a locked safe, they often take the whole safe thinking they'll find cash and jewelry. The last thing they want is a file containing your will, but that's one of the things they'll get if you keep them in your safe. Therefore, unless your safe is bolted to the foundation of your house, it may not be the best place to keep your original.

More people than you would expect keep original wills and other estate planning documents in an air-tight plastic bag at the bottom of their freezers. Freezers are well insulated and heavy, and have a way of withstanding fires, hurricanes, and tornadoes. Also, they don't die or move away, and they are stolen far less frequently than in-home safes.

2. If someone's will is in a safe deposit box at a bank when he or she dies, how do you get access to it?

There are three ways to get the will out of the box.

The easiest way is if another person is named as a joint holder of the box. That person can retrieve the will with no problems or delays.

If no other person has access to the box, Texas law allows a spouse, child, grandchild or the Executor named in the will to examine the contents of the box while in the presence of a bank employee. If a will is found, the bank will be required to send it to the court. Note, though, some banks will give it to your lawyer and allow that lawyer to file it with the court.

Another option is to go to court to request that a judge order an examination of the box. If a will is found, it will be sent to the court. This should be the option of last resort because it takes longer, requires the filing of papers with the court, and usually involves a lawyer and the associated legal fees.

3. Should I give copies of my will to my children and to the Executors of my estate?

For some people, their wills are as private as their income tax returns, and nobody is ever given copies. For other people, wills are no different than a spare key to the house, and every family member and Executor and/or trustee named in the documents is given a copy.

If you are the type of person who values your privacy, who does not especially trust your children, Executor, or trustee, or if you have written a will which does not treat all the children equally, then it may not be a good idea to hand out copies. Also, you may have more money than your children expect, and depending on how your will is written, giving them a copy may be letting them know too much about your personal business.

4. I have a will and I want to make a minor change. Is there a way for me to make the change myself without hiring a lawyer?

Yes, there are a few ways. One way is to make the change yourself by writing an amendment to your will (called a "codicil") entirely in your own handwriting. Of course, if the change is important and you want to be sure it's done right, you should not try to make the change yourself, but instead you should hire a lawyer to prepare a codicil for you.

5. What is the difference between a Medical Power of Attorney and a Directive to Physicians?

A Medical Power of Attorney is a document that allows you to name an agent to make medical treatment decisions for you in accordance with your wishes if you are not able to do so yourself.

A Directive to Physicians (also known as a Living Will) is a document that allows you to address what kind of medical treatment you would like to receive if you ever face a terminal or irreversible medical condition. It is often referred to as the document where you tell the doctors to "pull the plug." Most people request that all treatments other than those needed to keep them comfortable be discontinued or withheld so they can be allowed to die as gently as possible.

The main difference between the two documents is that the Directive to Physicians is where you actually express your own specific preferences as to the use of life sustaining treatment, and the Medical Power of Attorney is where you name one or more persons to make most medical decisions for you.

Within a Directive to Physicians, it is also possible to name an agent to make medical treatment decisions for you in accordance with your personal wishes if you do not also have a Medical Power of Attorney. Even so, most people go ahead and sign both a Directive to Physicians as well as a Medical Power of Attorney, and they do not name an agent within a Directive to Physicians.

7. If I name someone to make medical decisions for me in a Medical Power of Attorney, can that person later decide not to turn off the machines even though I have signed my Directive to Physicians?

If you have both a Directive to Physicians and a Medical Power of Attorney, there certainly can be some overlap.

For instance, a decision made by your agent under a Medical Power of Attorney may have the effect of ending your life within hours or days even though you may not yet have reached the point at which your Directive to Physicians would have applied to your medical condition.

In situations where there is overlap, Texas law states that your attending physician and the agent you have named to make medical decisions must act in accordance with your directions. Presumably, this means that if your physician has determined you are in a terminal or irreversible condition, your Directive to Physicians should be honored. However, since the law is not as clear as it could be, it is a good idea to include a provision in your Medical Power of Attorney requiring your agent to comply with a validly executed Directive to Physicians.

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Frequently Asked Questions About Probate

1. Which assets are handled outside of probate?

There are a number of different kinds of properties that may pass outside the provisions of your will.

The list includes life insurance, retirement plans, individual retirement accounts, and annuities. When you purchased or set up these types of assets and accounts, you were probably asked to fill out a form listing the beneficiaries who will receive payments upon your death. These investments will pass to the named beneficiaries regardless of whether you have a will. However, if you don't have a beneficiary named, if the beneficiary named is your "estate," or if all the beneficiaries are dead, then those investments will be paid to your estate and pass under your will.

Certain bank and brokerage accounts will also pass outside your will. For instance, payable-on-death accounts (sometimes called "POD" accounts) will be distributed to the named beneficiary. Additionally, accounts set up by one or more persons as joint tenants with rights of survivorship will pass to the surviving account holder or holders.

Some banks allow you to set up what they call trust accounts even though there is no written trust agreement. These types of accounts will pass to a named beneficiary without going through probate as well.

Not all joint accounts pass to the survivor. When joint accounts are set up as tenants in common, the portion of the account that was owned by the decedent passes under his or her will.

Many people have decided to create revocable or irrevocable trusts as part of their estate plan. Virtually all such trusts are designed to pass directly to persons or other trusts named in the document rather than under a last will and testament.

You may find that most of your estate consists of non-probate property. Therefore, it is extremely important to coordinate the beneficiaries of all these properties to make certain your assets will be distributed as you want when you pass away.

2. Must a will be probated if the estate is less than $1,000,000? Are insurance proceeds included in that total?

There is no requirement that you probate a will no matter how much the estate is worth. Wills need to be probated only if property is not transferred by some other means.

You may be confusing probate with the filing of a federal estate tax return. Regardless of how the property is transferred at death, if an estate is valued at $1,000,000 or more, then a federal estate tax return must be filed. And yes, you must include proceeds of life insurance owned by the decedent in computing the $1,000,000. (This $1,000,000 amount will be increasing in stages to $3,500,000 by 2009).

The probate process is primarily a method of changing title from the deceased to the person or persons who inherit the property. Some assets require probate, such as real estate and bank accounts held only in the name of the deceased, while others do not, such as life insurance policies or retirement plans payable directly to named beneficiaries.

3. I'm named as the executrix of my father's will. What do I do when he dies?

There are some steps you must take and other steps you may need to take. Exactly what you must do depends on the types of assets your father owns and the size of his estate.

Find the Will. Locating an original will can sometimes be difficult. Many people keep their wills in a safe deposit box, while others keep them at home or some place else. It may be a good idea to talk to your father and find out where his is kept. If it's at the bank, be sure you're authorized to enter the box, otherwise it may be harder to get the will out.

Hire a Lawyer. Most of the time, it's necessary to hire a lawyer. The judges in some smaller counties allow people to represent themselves in probate matters, but you still may have trouble preparing all the necessary forms that are required. It's safe to say, therefore, that lawyers must be hired in the vast majority of cases.

Application For Probate. The first document your lawyer will prepare is an application for probate. The original will is filed at the court house along with the application and a filing fee ($158.00 in Harris County). The application is usually several pages long, and it describes certain facts about your father, his will, and his property.

The Probate Hearing. After a ten day mandatory waiting period, a probate hearing will be held. Your lawyer will schedule this hearing for you. Under ideal circumstances, you can get your hearing two weeks after the application is filed. However, it often takes three weeks or longer to schedule a hearing because of the backlog in the courts and other scheduling conflicts. In Harris County, the hearings are held in a crowded courtroom, and dozens of cases are heard one after another. In surrounding counties, the hearing is often less formal, with the judge often shaking your hand at the door to his or her office, and then showing you to a chair right there in the office.

Testimony and Order. At the hearing, your lawyer will ask you a number of routine questions. Most of the time, the judge will then sign an order admitting the will to probate. The order is a document which your lawyer will have prepared and brought to the hearing. You will also be asked to sign the written document containing your testimony.

The Oath. After the hearing, you will need to sign an oath stating that you will fulfill your duties as independent executrix of your father's estate. The word "independent" means that you will not need to ask the court for permission to sell estate assets or to conduct any other duties as executrix.

Letters Testamentary. After your oath is filed, you will be able to order "letters testamentary" from the county clerk. The letters will authorize you to close bank accounts and collect and claim other estate assets. You can order as many letters as you think you will need.

Notices. Within 30 days of receiving letters testamentary, you must publish a "notice to creditors" in a local newspaper. This notice lets creditors of your father's estate know where they may file claims to recover money they are owed. It must be published even if your father has no creditors. Certified letters must also be sent to all of the charities named in your father's Will. Proof that you performed these tasks must be filed with the court as well.

File the Inventory. Within 90 days of qualifying as executrix, you must file an Inventory with the court. The Inventory lists all the assets which pass under your father's will. Importantly, the inventory doesn't always list everything a person owns, since you don't have to list assets that pass directly to named beneficiaries. For instance, life insurance, retirement plans, some joint accounts, and many other properties are designed to pass directly to a named beneficiary. After the Inventory is filed, the judge will sign an order approving the Inventory.

Tax Returns. Estates valued at over $1,000,000 must file a federal estate tax return and a Texas inheritance tax return within nine months of death. Taxes will be owed if the net estate exceeds that amount. The tax rates on assets over $1,000,000 start at 41% and go as high as 50%. You may also be required to file income tax returns for the estate. Often, the lawyer handling the estate will also prepare the estate and inheritance tax returns. However, few lawyers prepare income tax returns.

In answering this question, I have assumed the will was executed, witnessed and notarized properly, and that it contains all the right language. Not all probate proceedings are as easy as this answer indicates. For instance, you may find yourself in the middle of a will contest, or your father's will may have been written in another state, thus complicating the probate.

4. I've moved to Texas from Florida, where I had a simple will drawn with my daughter as the only beneficiary. Do I need to get a new will made in Texas?

Yes, you should prepare a new Texas will.

While it is true that Texas recognizes the validity of a will executed in Florida, your daughter will have an easier time probating your will if you have a new one prepared using correct Texas language.

For instance, there is almost no chance your Florida will names your daughter to serve as the "independent executor" of your estate. In fact, she is probably called your "personal representative" which is the lingo used in Florida. Being an independent executor means she will not be supervised by the court, the preferable way to administer an estate. If you don't state in your will that your daughter will be your independent executor, she can still make a special request to the judge after your death asking that she be allowed to act independently, but there is no guarantee that her request will be approved.

Also, the end of your will should have what is called a "self-proving affidavit" which is a long statement discussing the signing ceremony. Texas has its own unique form of "self-proving affidavit" and it is different from the one used in Florida. It is possible that the judge will refuse to recognize Florida's "self-proving affidavit" thereby causing your daughter unnecessary delays and expenses.

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Licensed by the Supreme Court of Texas for all areas of law practice.  Not certified as to any area of specialization.