Life can be uncertain. We all need to appoint trusted people to handle our affairs in case we are unable to do so. Also, most of us prefer to choose who will inherit our assets, and how those assets will be managed. If you fail to make an estate plan, the State of Texas makes those choices for you.
What is an Estate Plan? An estate plan is a set of documents that provides a plan in case of emergencies and death. It is more than just a will. A complete estate plan could include any of the following important documents, depending on your unique situation:
1. Will. This designates who will receive your assets when you pass, who will manage your estate, and how it will be managed. It may also designate a guardian for minor children and set up a trust to spring into being for the management of assets.
2. Living Trust. This is a legal document that creates a trust to hold and manage your assets both while you are living and beyond. Many people want a trust to avoid probate, but there are simpler and more inexpensive ways to accomplish this. However, if you have property in another state, want anonymity, or have a very large estate, it may be appropriate.
3. Financial Power of Attorney. This designates a trusted person to handle your financial affairs when you are alive but unable to handle them for any reason, such as sickness.
4. Medical Power of Attorney and HIPAA Release. This allows a trusted person or persons to make medical decisions for you when you are unable to make them, such as being unconscious. The HIPPA Release allows your agent to obtain medical records and talk to medical professionals on your behalf.
5. Survivorship Agreement or Revocable Transfer on Death Deed (TODD). These are revocable deeds that allow you to designate the surviving spouse and/or beneficiaries of real property. This transfers title to real property without the need to probate the estate. These may be the most overlooked, but very important tools in estate planning.
6. Appointment for Disposition of Remains. This allows you to appoint a person to handle the burial or cremation arrangements after your death.
7. Declaration of Guardian. This allows you to choose a guardian for yourself if you should need one. Otherwise, the court may decide and choose someone other than who you would have chosen.
8. Directive to Physician (“Living Will”). This is used in the hospital and allows you to choose whether you would like life-sustaining treatments or treatments to keep you comfortable if you are diagnosed with a terminal or irreversible condition.
9. Out of Hospital DNR (Do Not Resuscitate). For the very elderly or terminally ill, this document is used outside a hospital (in a home or nursing home) and directs EMS or other medical providers not to resuscitate.
10. Advice on designating beneficiaries or business succession planning to avoid probate. An overlooked, but important part of setting up an estate plan is designating beneficiaries on all non-probate assets. An attorney can help by guiding the client through the process and reviewing the beneficiary designations to make sure primary and alternative beneficiaries are properly designated on life insurance, bank accounts, investment accounts, retirement accounts, and pension funds. Also, an attorney can draft or review company agreements to make sure the company has successors in interest.
1. Blended Families. Without a will, a TODD, or a Survivorship Agreement filed in the property records, children outside the current marriage receive all of their deceased parent’s share of community property, including the community property residence, and the current spouse receives nothing except the right to live in the residence. Estate planning is a must for blended families.
2. Single Adults. Single adults may not wish to leave their estate half to their parents and half to their siblings, which is what the State of Texas has chosen for them in the absence of a valid will.
3. College Students. Once a child turns 18, parents are no longer able to talk to financial institutions or medical facilities on behalf of their child unless the child so designates in a financial or medical power of attorney.
4. Elderly. Elderly people often need assistance with their financial and medical affairs. This can protect them from exploitation. Having a will saves loved ones from having to untangle a mess of asset transfers. This is especially important to do before the loss of mental capacity when it is too late.
5. Charitable Giving. An estate plan can direct charitable giving.
Where should you go for an estate plan? Visit an experienced estate planning attorney who listens to you and develops a custom plan based on your unique needs. A good estate planning attorney can provide advice on how to avoid probate, which saves time, money, and stress for your loved ones during a difficult time of loss.
About the Author: Elizabeth Morrison Dean is a managing member of Allen Texas Attorneys, located at 80 E. McDermott, Allen, TX75002. If you have questions about estate planning, you can call the office at (972) 390-1608 to schedule a consultation or visit www.AllenTexasAttorneys.com.
Most of us prefer to choose who will inherit our assets, and how those assets will be managed. If you fail to make an estate plan, the State of Texas makes those choices for you.