Estate Planning FAQ

Do I need a Will?

Yes, unless you want the State of Texas to provide one for you. The Texas Estates Code Chapter 201 provides for persons who die without a will in the “Intestate Succession” provision. If you die without a will (Intestacy), your assets will be distributed according to a formula that does not take into account your wishes and unique circumstances. See the Intestate Succession Chart. A will, however, allows you to designate how and to whom your assets should be distributed.

Why should I hire a lawyer and not use DIY tools such as LegalZoom or Quicken Willmaker?

The benefit to hiring a lawyer is that lawyers have the knowledge and experience to assist in planning for the future and the unknown ahead. Lawyers help to evaluate potential paths that appear to be solid today, but can become a nightmare for heirs in the future. Each state has its own probate laws and a lawyer may raise issues that you might not have considered. This is especially true for matters of guardianship for minor children. Software and other DIY tools cannot provide legal advice.  These products provide disclaimers that the services are not the substitute for attorney advice.  Software programs cannot review your answers for legal sufficiency, draw legal conclusions or advise you of the law based on your particular situation. The Texas Legislature passed major changes to the Texas Probate Code, now the Texas Estates Code in September, 2013. DIY products do not guarantee information that is correct or updated.

What basic Estate Planning documents do I need?

Last Will and Testament: A legal document that provides instructions for how to distribute assets after death. A will may also (1) state the guardian for minor children and/or (2) appoint an executor to administer the estate in accordance with the Testator’s wishes.

Durable Power of Attorney: A legal document that allows you to appoint a family member or trusted friend to serve as an agent for you to manage your finances and legal affairs if you are no longer able to manage them yourself. This document is necessary in the event you become either temporarily or permanently incapacitated.

Medical Power of Attorney: A legal document that allows you to appoint a family member or friend to make medical decisions for you in the event you become unconscious or mentally incapable of making those decisions on your own.

HIPPA Authorization: HIPPA is the Health Insurance Portability and Accountability Act that was passed by Congress in 1996. HIPAA lays out rules and places limits on persons who are able to review your medical records or receive your health information. Doctors and medical staff who violate HIPAA regulations are subject to civil money penalties or imprisonment in extreme cases. Having a HIPAA Authorization in place allows you to name a family member or friend to have access to your medical information so that your health care provider or insurance company may share medical information with persons named on the authorization.

Medical Directive: A legal document, also known as the living will, that directs physicians to administer, withhold or withdraw life-sustaining treatments in the event of a terminal or irreversible condition.

Declaration of Guardianship: A legal document that appoints a family member or trusted friend to care for you in the event you are unable to care for yourself.  Without this document in place, should you become incapacitated, the Court will order a guardianship for you. However, a Court-ordered guardianship is both time-consuming and costly.

What is Probate?

Probate is the legal process in which a decedent’s will is proved to be valid or invalid by the court.  The process involves appointment of an executor (in the case of a will) or an administrator (no valid will) of the decedent’s estate.  Simply explained, the executor or administrator, once appointed, is charged with paying the decedent’s liabilities and distributing the decedent’s assets.  In the case of a will, the distribution will occur according to the decedent’s instructions.  Without a will, the distribution will occur according to the formula set forth under Texas Law.  See the Texas Intestacy Chart.

May I name an Executor who does not live in Texas? May I name a Guardian who lives outside of Texas?

 Yes, if you file the correct documents. Under the Texas Estates Code, §304.003, nonresidents of Texas are excluded from serving as an executor or administrator unless the nonresident has appointed a Texas resident to accept service of process in all actions or proceedings with respect to the estate and filed the appointment with the Court. Similarly, under the Texas Estates Code, §1104.357 nonresidents of Texas may not be named guardians if the nonresident failed to file with the proper court the name of a Texas resident agent to accept service of process in all actions or proceedings with respect to the guardianship.

Will my Life Insurance be considered as part of my Will? 

No. Life insurance and retirement plans are considered non-probate assets. In other words, these items are not part of the will. However, these assets could be tied to your will with some additional legal steps if you choose.

My sister is really great with my children, but not great with money. May I name someone else to manage my estate and name my sister as my children’s Guardian?

Yes. In fact, it is not uncommon to name one trusted family member or friend as Guardian of your minor children and a second person as manager of the estate (Trustee).

If I have a Revocable Trust, do I also need a Will?  

No, but it may be wise to have a “pour-over” will in the event that you forgot to include a piece of property in that revocable trust. A revocable trust allows the trustee at your death to manage assets held in the trust according to the terms of the trust. However, if you inherited a piece of land, or acquired property after creating the trust (or forgot to include it at the time the trust was created), that property will not be included in the trust. In that case, without a will, the property not named in the trust will be distributed according to the Texas Intestacy laws. A properly drafted “pour-over” will would allow for any assets left out of the trust to be directed to the trust from the estate and managed and distributed according to the trust terms.

What is a Special Power of Appointment?

In general terms, a special power of appointment is the power to direct who receives the trust property. The power may be given to a person for use during life or only at that person’s death (referred to as a testamentary special power of appointment). A special power of appointment is the same as a limited power of appointment. The power is limited to the persons to whom you allow the beneficiaries to appoint the property. The power can be exercised in favor of anyone other than the beneficiary, the beneficiary’s estate, the beneficiary’s creditors or the creditors of the beneficiary’s estate.

How would I plan my burial or cremation?

You could create a document that would appoint an Agent for Disposition of Remains. If you do not have such a document, and do not designate otherwise, Texas law provide a priority list of persons who have the right to control the disposition of your remains. These persons include your spouse, followed by an adult child, a parent, an adult sibling, and then an heir. You may designate someone to dispose of your remains, and in that case, that legal document controls instead of Texas law.

How can I see Medical Information for my child?

Custodial parents with children under 18 are generally designated by a health care proxy to have access to the child’s medical information.  For children over 18, a doctor is generally prohibited by law from giving the parent medical information unless the child consents. Your adult child may sign a HIPAA authorization (as described above) designating you as an authorized agent to receive his medical information.  That would allow his doctor to share medical information in the event your child is unable to give consent, as in the case of an accident