Estate Planning
  • What is Estate Planning?

Estate planning involves putting your affairs in order so as to maximize the benefits that your assets can provide to you during your life and to those you desire to benefit from it after your death. An estate plan should include at least these four key documents: a will, medical power of attorney, durable (financial) power of attorney, and a living will. However, there are many other documents that can address the specific needs of your situation.

  • When should an Estate Plan be reviewed?

You should review your documents every 3 – 5 years or after any major life change. Significant life changes may include such things as birth, death, divorce, disability, significant change in net worth, purchase or sale of a business, or moving to another state. It is important to consider the life changes of those named in your documents as well. A change in their life might change their suitability for the task you’ve designated for them.

  • How does divorce affect my property and Estate Plan?

If you divorce your spouse and do not update your will and other estate planning documents, benefits to your ex-spouse in your will are nullified, because your ex-spouse is treated as if he or she died before you. Additionally, all beneficiary designations in life insurance policies in favor of the ex-spouse are nullified, unless (1) the divorce decree designates the former spouse the beneficiary, (2) the spouse re-designates the former spouse after the divorce, or (3) the former spouse is designated as the beneficiary to receive the funds in trust for your children. If the beneficiary designation of a spouse is nullified and you do not name an alternate, the proceeds are paid to your estate.

Powers of Attorney
  • If I have a will, why do I need a power of attorney?

A will deals only with what should happen after your death. If you become incapacitated, a will has no power to appoint a person to manage your affairs during your incapacity. Powers of attorney allow you to name who should handle your finances and make medical decisions if you are unable. Furthermore, there are separate documents for financial and medical decisions so that you can easily name different people for these tasks if you wish.

  • Do I need a will?

Yes, a will simplifies the process for your heirs. A properly executed Last Will and Testament assures that your property passes to the loved ones that you choose. The preparation of a will can be accomplished simply by writing it in your own handwriting and signing it, but it is much safer to use an attorney to draft your will and supervise its execution.

  • What happens if I die without a will?

If you die without a will the State of Texas will determine how your estate is handled in probate. If you are a resident of Texas, your property will be distributed to your heirs as determined by Texas law. Your property does not pass to the State unless your heirs cannot be located.

  • Can I name a non-family member as guardian of my children?

The natural parents of a child always have priority. You cannot pass over your child’s other parent because you don’t think they will do a good job. However, you can name any adult or married couple to care for your child if you pass away.

  • What happens if I don’t have a living will?

If there is no living will, the person named in the medical power of attorney or the next of kin will be asked to make decisions regarding your terminal or irreversible condition. The benefit to the living will is you will have expressed in writing your wishes for this situation. It will provide peace of mind to the decision-makers because they know exactly what you want.

  • Does everyone need a trust?

A trust is not necessary for everyone. Texas has a fairly simple and inexpensive probate process. If any assets are left out of the trust by accident, then probate will be required regardless. There are several reasons to consider a trust, however. Some are tax planning, owning property out of state, funding for special needs or disabled family members, a medical diagnosis of dementia or a degenerative disease, and planning for blended families and same-sex couples.

  • Why should blended families consider a trust?

Many couples wish to ensure their surviving spouse is cared for throughout their lifetime. The secondary concern is ensuring your children benefit from your work instead of the surviving spouse’s new spouse. By leaving assets in trust and designating the surviving spouse as the primary beneficiary and the children as secondary beneficiaries, both goals are achieved. The surviving spouse can use the assets for his or her needs during life, and at their death, it goes to the children.

  • Why should a person consider a trust after a dementia diagnosis?

A dementia diagnosis means you need to assess every aspect of your life with an eye for the future. By placing your assets in trust you allow for an easier transition when you are no longer able to manage your financial affairs. The new trustee needs to only take one step to manage your affairs for the future. If your assets are not in trust, your future financial caretaker must deal with each of your bills, banks, and financial providers or asset holders individually to take control. This process outside of a trust can be time-consuming and difficult.

  • What is probate?

Probate is the legal process that transfers the property of a person who has passed away to their heirs or beneficiaries. If a will exists, it is submitted to the court and upon proper proof, the executor is accepted and granted letters testamentary. The executor may then carry out the business of wrapping up the estate.

  • How does probate work if you don’t have a will?

There are several options depending on your particular situation. A determination of heirship is a court process that allows the judge to formally declare the heirs and appoint an administrator to handle the affairs of the estate. Some estates can be transferred with an Affidavit of Heirship which is filed in the county property records.

  • When can I probate a will?

Wills must be probated within four years of the person’s death except in very limited circumstances.