Simplifying estate planning

Not Complicating It

Estate Planning is not just for the wealthy. “Estate Planning” is a term that is frequently misinterpreted. The term really just means that you have made preparations for life’s uncertainties – both during and after your lifetime.

Estate Planning in Texas is more than just drafting a Will. It also involves documents such as a medical power of attorney, a physicians directive (living will), a durable power of attorney, and more. These documents affect decisions that occur during your lifetime, not just afterwards. Estate planning can include trusts and other mechanisms that are useful during your lifetime and beyond.

Documents to consider in any estate plan include:

Last Will and Testament – Wills in Texas are one of the most important components of every estate plan. Generally speaking, Wills in Texas name beneficiaries, name the executor, make specific bequests, describe how administration of the estate should occur, set up trusts, and name the guardian for minor children. Most importantly, a will sets out to whom you want your property to be distributed after you are gone. If you do not leave a valid will behind, you lose all control over how your property is divided among your loved ones.

Most wills are typed documents. A typed will requires at least two (2) witnesses and a notary public. By contrast, a will that is completely in the Testator’s handwriting may also be valid. A handwritten will is called a “holographic” will. However, a will that is a mixture of typed text and handwritten text will face tremendous difficulty surviving a court’s scrutiny and will likely be invalid.

Trusts – A Living Trust (or inter vivos trust) is a trust created during your lifetime. Once created, the trust has a trustee that manages the trust assets. Most of the time, you retain the right to revoke your trust at any time. This is commonly called a “Revocable Living Trust” and can be revoked or amended at any time during your lifetime.

In most cases, a living trust should not be created merely to avoid probate; the trust creation and administration will often be more expensive and/or more burdensome than if the assets had just passed through the probate process through a will.

A living trust does have other advantages. First, many people do not want the whole world to know the size of the assets they own when they die. When assets pass through the probate process, anyone can find out the value of the estate. A living trust, however, can create privacy by preventing trust property from passing through the probate process.

There are many legal and financial factors to consider when choosing an estate planning tool. A living trust in Texas is recommended in some, but not all, clients’ situations. A dedicated trust attorney can help you weigh the pros and cons of a living trust in your particular situation. Consider contacting a lawyer for a consultation to help you choose the best estate planning for your unique situation.

General Power of Attorney – A durable general power of attorney grants authority to someone you trust to conduct financial, real estate, and/or legal transactions on your behalf. The person you appoint will have the ability to manage your personal and financial affairs in the event you are unable to do so for yourself.

Medical Power of Attorney – With a Texas Medical Power of attorney, you can designate someone, such as your spouse or some other loved one, to make medical decisions on your behalf if you become unable in the future.

HIPAA Release – Hospitals are not allowed to share your medical records with anyone absent your consent. If you want a loved one to have access to your medical files, you need to give the health care provider authorization to share your file with others.

Declaration of Guardian – A Declaration of Guardian designates who you would prefer to be your guardian should you become unable to care for yourself anymore. There are two basic types of guardian: a guardian of the estate and a guardian of the person. A guardian of the estate has the power to make decisions regarding your property. The guardian of the person has the power to make personal decisions for you, such as where you will live.

Advance Directive (Living Will) – Advance directives are legal documents that allow you to communicate your preferences regarding end-of-life care ahead of time. For example, if you are in a vegetative state, you will not have the ability to communicate with your family about your wishes for medical treatment. This advance directive relieves a tremendous burden on your loved ones, who may fear that they will make a decision that you would not want.