WILLS

 

A will is a document in which you direct where your property should go upon death. A will names who will serve as Executor of your estate and can help ensure that any minors or disabled persons inherit property in ways that protect them while preserving benefits.

Texas law recognizes two types of wills. The first type is a written will signed by the testator and two witnesses. To avoid the need for the witnesses to appear in court at a future date, a will should also have special language added to make it "self-proved." A will should be executed with the testator, witnesses, and the notary in the same room at the same time with a formal ceremony to reduce the likelihood of issues down the road. Beneficiaries in the will should not serve as witnesses.

Texas also recognizes a holographic will, which is a will written entirely in your OWN handwriting (not someone's else's handwriting). A holographic will does not require witnesses. Although recognized under Texas law, holographic wills often leave out important items that an attorney-drawn will would not. They are also typically more expensive to probate and might invite will contests. Nonetheless, a holographic will can suffice in an emergency until more comprehensive documents are in place.

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PITFALLS OF DIY WILLS

 

Today, there are plenty of companies claiming to offer you the option of making your own will. While the low cost may seem appealing, DIY wills can leave your will open to misinterpretation, which means your final wishes may be completely overlooked. We have seen DIY wills in our office that were insufficient to carry out the decedent’s requests, causing their loved ones to face the prospect of complicated and expensive intestate (no will) proceedings. Additionally, a DIY will does not come with legal counsel from an attorney that may help you avoid costly mistakes. Finally, even DIY wills almost always require an attorney to probate them, so one advantage of using an attorney for estate planning is having an attorney for your family to turn to when the time comes.

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TRUSTS

 

Some persons utilize trusts in their estate planning in addition to wills. Trusts are entities that are formed to legally hold property and distribute it according to a set of directions. Properly written and funded, a trust may help avoid probate. Trusts can be especially useful in the following circumstances:

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• When you have real property (houses, land) outside of Texas

• When you have a blended family

• When you already have a trust or are a beneficiary of a trust

• When a beneficiary has special needs or receives government benefits

• When you need confidentiality of your assets after your death

 

Note that neither a will nor a trust typically disposes of jointly held financial accounts, life insurance proceeds, or retirement or investment accounts when individuals are named as beneficiaries. These assets are considered "non-probate assets" and are viewed as a contract between the person who set up the accounts and the financial institution.

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POWERS OF ATTORNEY

 

Powers of attorney authorize another person (the “Agent”) to make financial or medical decisions for you (the “Principal”).

A Durable Power of Attorney, sometimes called a “Financial Power of Attorney,” can authorize an Agent to handle transactions related to real estate, banking, investments, retirement, and lawsuits. The Financial Power of Attorney can be made effective either as soon as it is signed or in the event of your incapacity (as determined by a physician). In certain circumstances, it is helpful for the Financial Power of Attorney to authorize the Agent to take actions that would help you qualify for government benefits (like Medicaid) or to protect assets from an estate recovery program. For instance, an Agent may be given the authority to execute a Lady Bird Deed or Transfer on Death Deed on behalf of the Principal.

A Medical Power of Attorney authorizes your Agent to make medical decisions when you are not able to make your own. These decisions include giving consent to surgeries, authorizing medications, and making end-of-life decisions. 

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DIRECTIVE TO PHYSICIANS ("Living Will")

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A Directive to Physicians and Family or Surrogates, also called a “Living Will,” enables you to express your wishes regarding life sustaining treatments (e.g., feeding tubes, ventilators, etc.) in the event that you have a terminal or irreversible medical condition and can no longer communicate your desires.

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GUARDIANSHIP DESIGNATIONS

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Along with a will and other estate planning documents, you should also designate a guardian for your minor children. This is the person (or married couple) who would take care of minor children in the parents’ stead. Additionally, there are times when adults need guardians, so it is advisable to name your preferred guardian of your person (to make medical decisions) and estate (to make financial decisions) before the need for a guardian arises. The preferred guardian of the person can be the same or a different individual as the guardian of the person’s estate. Persons can also be excluded from serving as guardians.

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LONG-TERM CARE PLANNING

 

Having to think about long-term care for yourself or a loved one is hard enough without trying to figure out how to pay for it. However, without a plan, long-term care can deplete assets quickly. Planning for long-term care and utilizing government benefits, when appropriate, can help preserve assets and provide for the spouse still living at home. It is important to speak to an attorney knowledgeable about both qualifying for benefits and legally preserving as many assets as possible upon the person’s death.

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AVOIDING PROBATE

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If you have a simple estate, it is sometimes possible to avoid probating a will with proper planning and advice from an estate planning attorney. If your only assets consist of financial accounts that are jointly held or have beneficiary designations, they will normally pass outside of probate. Even a house can pass outside of probate if a Lady Bird Deed or Transfer on Death Deed was utilized. A properly drawn and funded trust can also help to avoid probate.

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