Practice
Area

Media

Austin Wills & Trusts Attorneys

Kirker Davis

Who we are?

Kirker Davis LLP is a boutique family law firm in Central Texas with a focus on high-end family law cases. We handle divorces involving professionals, family-owned businesses, custody matters, and complex litigation. The Firm’s core business philosophy is based on fidelity to the practice of law and a commitment to client service.

We are committed to providing concierge level family law services to truly make a difference in our community

Estate Planning: The Will

Oftentimes, when people hear “Estate Plan” they assume it includes just a Will. However, an Estate Plan is comprised of much more than just a Will. That being so, drafting a Will is oftentimes the best place to start. A properly drafted Will sets forth your intentions as to how your property should be distributed after you die, who should be guardian of your minor children, and other significant considerations. One of the main benefits of a Will is its ability to reduce potential family conflict after your death.

What is a Will?

A Will is a legal document expressing your intentions regarding how you want your assets to be managed and distributed upon death. In Texas, certain formalities need to be followed in order to make a valid Will.

First, Texas recognizes two types of written Wills:

  • An attested Will must be (1) in writing; (2) signed by the testator or another person on the testator’s behalf, in the testator’s presence, and at the testator’s direction; and (3) signed by two credible witnesses over the age of 14.
  • A holographic Will must be written wholly in the testator’s handwriting. Any typewritten information that is surplusage will not invalidate the Will, but often leads to pitfalls. No attesting witnesses are required and the Will may be self-proved if the testator attaches an affidavit stating it is her last Will.

Notably, a Will has no legal effect until it is admitted to probate; a judge must find it to be valid and enforceable. In fact, any assets that are passed through a Will or through the laws of intestacy (see below) need to go through the court-supervised process known as probate. This process can be extremely time-consuming and expensive and proper estate planning can minimize its role after your death.  When there is a Will, during probate that Will is authenticated, assets are located and appraised, debts are paid, and the estate distributed.

 “Last” Will

If you have previously executed a Will, the Will you wish to be enforced should indicate that it is your “last” Will and that you revoke all other prior Wills. A Will may be impliedly revoked if it was last seen in the testator’s possession and cannot be located. A Will may be contested up to two years after it has been admitted to probate.

Texas Intestacy

If you die without a Will, it is called dying “intestate.” If you die intestate, Texas courts will determine your heirs. Typically, heirs include any children, including those from past relationships. Notably, Texas courts do not consider your significant other, friends, or stepchildren as heirs. Your grandchild will not inherit from you unless their parent (your child) dies before you do. In addition to identifying your heirs, the probate court must classify any property you own as either real estate or personal, community or separate. Dying intestate can be a time-consuming and costly process, with fees paid from your estate. While a Will is not a method by which to avoid probate entirely, it ensures that your property passes to the individuals you select in a manner that you dictate.

Estate Planning: What is a Trust?

A legal trust refers to an arrangement by which an individual (i.e., the grantor, trustor, or settlor) creates a trust. Another individual, the “trustee,” holds legal title to the trust property for yet another individual, called the “beneficiary.” In some circumstances, the grantor and trustee will be the same individual. For example, a parent could be both the grantor and trustee of a trust which contains a piece of real property for a child beneficiary. Certain trusts even permit the grantor to be both the trustee and the beneficiary.

A revocable living trust refers to a trust that an individual creates during their lifetime, as opposed to one created upon their death pursuant to the terms of their will. Any beneficiaries named in this living trust will receive the trust property upon the grantor’s death. A revocable living trust is quite flexible: the owner can change the terms at any time, remove beneficiaries, designate new ones, and more.

By contrast to revocable living trusts, irrevocable trusts cannot be revoked or modified once they have been signed. The main benefits of irrevocable trusts are that they can minimize the grantor’s estate tax liability and offer asset protection from lawsuits and creditors.

In Texas, all trusts are presumed revocable unless expressly provided for otherwise. Moreover, revocable trusts are becoming increasingly popular to avoid the probate process. This is more common in states that don’t have independent administration as Texas does.

Inter vivos and Testamentary Trusts

Another important distinction to understand is the difference between inter vivos (living) and testamentary trusts. An inter vivos trust is effective during the Settlor’s lifetime, whereas a testamentary trust is created through a Will and, therefore, is only effective upon death and the Will being admitted to probate. All the elements of the trust must be contained within the four corners of the Will. Inter vivos trusts are further classified as those that are revocable or irrevocable (see above).

Contact Austin Wills & Trust Attorneys

We offer comprehensive estate planning services, including the creation, review, and modification of Wills and trusts. To create or modify your Estate Plan, contact Kirker | Davis LLP and schedule a meeting with an attorney today.

Request Consultation

    TESTIMONIALS

    • "The divorce process is not an easy one, but I always felt fully supported, informed, and guided by Chris and the staff. Chris always laid out the options, made me aware of the risks, and provided me with recommendations, but he also gave me the flexibility to work out things with my ex where I could, to speed up the process and avoid some legal expenses. I highly recommend Chris for family law representation. ”

      David - Divorce Representation

    • "I’m a lawyer myself and Holly helped me with my recent divorce. She did an amazing job. She covered all the little issues that would have collectively cost me a bunch of money in the long run if she had not been so detail-oriented and focused. She is a tenacious advocate for her clients who aims to resolve matters amicably but will fight tooth-and-nail for her clients if that is what it takes to reach a...”

      Anonymous - Holly is the lawyer who lawyers hire for their own divorces

    • "Chris handled my case professionally, efficiently, and demonstrated a very strong knowledge of family law. Chris took the time to learn and understand all aspects of my situation and used that knowledge to develop a focused strategy that led to a successful outcome. I highly recommend Chris. ”

      Martin - Excellent Lawyer

    • "Ashley Morgan and her paralegal Aleks were both so amazing to work with. They were second to none in responsiveness and work ethic. I would recommend her work to anyone looking for family law, and could not be happier with my decision to work with them. Just a great group of people who are knowledgeable and passionate about the work they do. ”

      Josh Campbell - Family Law

    • "This was as good an experience as you can possibly have with a divorce situation! Candice and Laurie were professional yet compassionate. They treated me with great respect and were always available to answer my questions. The best part is they always had my best interest at heart. I would highly recommend Kirker Davis and Candice Derelye and Laurie Theriot. They are the best! ”

      Susan Morris - A divorce situation

    • "This was my first time ever working with lawyers and words cannot express how grateful I am for Ashley Morgan and her team. I needed direction during a difficult time and she provided step by step service. Would highly recommend! ”

      Erik Jurado - Highly recommended

    • "I praise Attorney Alyse Donnelly for all the hard work and hours she put in my divorce case. I believe that her experience, knowledge, and quick thinking resulted in beneficial results on my behalf. Ms. Donnelly along with Paralegal Stacy O’Brien and Attorney Michelle Fontenot are definitely assets to the Kirker Davis law firm. ”

      Bertha Solis - My divorce case

    • "My experience with Kirker Davis has been amazing. Candice Deyerle has been my attorney and in just under a month she helped to correct severe deficiencies in my custody case. She and her team respond within minutes or hours to even the most mundane requests. From the moment I walked in the office, I was greeted with an exceptional level of service, and even the receptionist inspires class and confidence. I wh...”

      Daniel Kearns - Custody case

    • "From my first visit, I felt like Candice listened to every word I said and showed concern about my pending situation. My ongoing experiences throughout our working together, made me feel like they were genuinely concerned about me and my integrity. If I wandered off course, Candice would guide me back online! Fantastic results! ”

      Edward Novess - Fantastic results

    Austin Family Attorneys

    Is Divorce Imminent

    Download “The 4 Steps In Every Divorce” eBook so you can be better prepared

    Download Now

    Austin Family Attorneys

    Request Consultation

    A strategic step towards resolution

    Submit a Request
    • Austin Office

    • San Antonio Office