Frequently Asked Questions
Can I go to a notary public and get a contract written there?

A notary public is not authorized to practice law and should not be helping you to write contracts unless he or she is also a lawyer. Most contracts do not need to be notarized, as this is only necessary in certain situations.

I called the judge in my lawsuit and he/she wouldn't return my call. Aren't they elected officials who are supposed to help members of the public?

A judge is absolutely prohibited from having ex parte communications with anyone whose case is before that court, and prudent judges will refrain from specific communications with anyone who might ever have a case before his/her court. You should never try to ask a judge anything about any case, including your own. If you have been sued, you should move quickly to hire a lawyer, and it will be your lawyer's job to represent you and explain things about your case to you.

What happens if I don't have a will?

Why should I hire a lawyer to write my will when I can find forms on the internet?

While many forms are available on the internet, every state has specific laws regarding the drafting and execution of wills and you may not find the exact language that you need for a valid Texas will. The most commonly misdrafted aspect of the “homemade” Texas will is the self-proving affidavit, which has to be very exact to meet statutory requirements. Without a proper self-proving affidavit, your estate will have to produce witnesses in court in order to probate your will, and this will create considerably more expense to your estate than if you had a properly drafted will in the first place.

Why does the Probate Court require me to have a lawyer to probate my relative's will?

Every probate case which involves court testimony (this includes the normal probate of a properly written and executed will) has to be filed by a lawyer. The County Clerk’s office will not accept pro se probate cases. The reason for this is that the clerks who work at the courthouse cannot give legal advice, and people attempting to handle their own cases will inevitably ask for assistance. A probate case is normally unopposed, but the court has to treat every case as if it will be adversarial, just in case that happens.

Why are there two different statutory powers of attorney?

One is the Medical Power of Attorney and the other is the Statutory Durable Power of Attorney. The first is for medical purposes: for when you are unable to make your own medical decisions. The second is for a situation where you have a long-term disability and need someone to take care of your finances. The Durable Power of Attorney is especially important because without it, the spouse of a disabled person is unable to sell property belonging to both unless a formal guardianship is created. This is an expensive and cumbersome process which this document effectively prevents from happening.

How can I prevent the Terri Shaivo situation from happening to me?

Texas doesn’t have a statutory document called a “living will.” However, you can take care of any situation in which you cannot make your own medical decisions by having a Medical Power of Attorney, wherein you name who you want to make decisions for you (any, very importantly, you also name alternates in case your first or second choice is not available). You also need a Directive to Physicians, another statutory document in which you can specifically say whether you want to be kept alive indefinitely or not.

What is a corporation and how does it work?

A corporation is a business entity which can have perpetual duration – that is, it is a legal person that can live forever. It consists of three basic parts: The shareholders, who own the corporation and are entitled to its profits, the directors, who make the larger plan for the business of the corporation and literally direct its operations and who are appointed by the shareholders at an annual meeting, and last, the officers, who run the business on a day-to-day basis and are hired by the board of directors. The only officers required by Texas law are a president and a secretary, although there can be vice-presidents, a treasurer, assistant secretary, etc.

Why would a business want to incorporate?

There can be many reasons for a business to be incorporated, but usually the most attractive reason is the limitation on liability which incorporation affords the principals in a business enterprise. With a sole proprietorship or a general partnership, there is personal liability for the owners with regard to all aspects of the conduct of the business. With a corporation, the personal assets of the people involved as shareholders, directors and officers are generally not available to creditors of the business.

Can one person form a corporation in Texas?

Yes, in Texas, one person can form a corporation and be the sole shareholder, sole director and also serve as the president/secretary. Many corporations consist of a husband and wife team, and are often referred to as “mom and pop” businesses.

Can one person form a non-profit corporation in Texas?

No, a not-for-profit corporation has different laws which govern its formation and operation in the state of Texas, and at least three people have to serve on the Board of Directors.

What is a limited liability company?

An LLC, as it is commonly called, is a newer kind of business entity which can be treated as a partnership for tax purposes, but which offers the same kind of protection from liability as a corporation. Instead of shareholders, it has members, who can manage the business directly or hire managers to run the day-to-day operations.

Copyright 2009, Jennifer J. Mattingly