Tuesday, August 20, 2013

Will & other estate planning documents

I recommend that every Texas resident over the age of 18 think about have the following legal documents - especially if you are single:

  1. Medical Power of Attorney for Health Care with the Required Disclosure Statement
  2. Statutory Advance Medical Directive (commonly known by most people as a "Living Will") also known as "Directive to Physicians and Family"
  3. Declaration of Guardian in the Event of Later Incapacity 
  4. Appointment of Agent to Control Disposition of Remains
  5. Texas Department of Health Standard Out-of-Hospital Do-No-Resuscitate Order -- this is discretionary - do you want to be put on life support? - if you don't, then you need one of these documents! 
  6. A Texas will – probate in Texas is easy & expensive if you have a well written will (for example – the executor must be “an independent executor to serve without bond”.)
I will try to very briefly try to explain these complex legal documents.  I encourage you to talk to an estate planning or probate attorney about these wonderful forms.  

So what are these forms?

The medical power of attorney allows someone to make medical decisions for you if you are unable to speak for yourself.  So if you are in an automobile accident and in a coma, you need someone to speak for you if you are unable to do so.  You don't want the doctors to have to go to court and have a judge appoint a stranger to make medical decisions for you.  What if all of your siblings cannot agree?  So select one person that you know & trust to make decisions for you.  Once you are awake then you are back in control again over your life.  You can select more than one person just in case that person is unavailable.  

The living will tells the doctors what you want or do not want regarding extending your life.  It only applies if you are at the point of death.  Do you want to be hooked up to life support?  You can designate what you want done - pain killers? fluids? anything special or unique? 

The do not resuscitate order - if you don't want to be resuscitated -- you need to remind your family not to call 911 - If 911 is called then they will resuscitate you. EMS is not going to come out and watch you die! However, if you go into hospice this is relevant.  

The guardian form says that if for some reason you are found to be incompetent by a court  of law then who do you want to be named as your guardian. You can select one person to be guardian of your physical body and one person to be named guardian of your money.  Or they can be the same person.  You can also specify the people that you want to be excluded (omitted) as people to be your guardian.  So if you have a friend or relative that you don't trust, be sure to execute this legal document.  You need to be sure that anyone you select can get insurance to be a guardian.  So if the person has bad credit and/or a criminal record, they might not be able to get insurance. I recommend that you select more than one person, just in case.  Plus, they need to be Texas residents.  

The person to control your remains (body) will be the person to handle your funeral arrangements.  Unfortunately, sometimes people "fight" about funeral arrangements. Death/grief can make people behave badly. So select one relative or friend that you trust.  Also, this person has to be willing to pay for the funeral if your other friends and/or relatives don't agree.  So if this person has no money, that might be a problem. Be sure to select someone that is truly willing to assume this burden.  If the person is meek and afraid of fighting with all of the other relatives, perhaps you should not select this person.  I also encourage you to talk to this person about what you want.  Lastly, if you don't have a lot of money, then don't discuss a "diamond" funeral - be realistic. Funerals are expensive.  They can easily run $10,000 or more.  I encourage your family to shop around for smaller funeral homes willing to negotiate - there are some "cheap" companies available if you look on the internet or consider cremation.

In Texas, probate is very inexpensive & easy if you have a properly executed will. (PLEASE READ THAT SENTENCE AT LEAST 3 TIMES!!!) Otherwise, probate is a nightmare - AKA expensive.  The TX legislature, has determined how your estate will be distributed if you do not have a will.  The State does NOT seize your property if you do not have a will.  However, your possessions might not go where you want them to go without a will.  Therefore, please prepare a will and have it witnessed and notarized. Texas has some "strange" requirements that the on-line forms do not include so probate will be more expensive if you try a do-it-yourself will sold on the internet by an out-of-state company that claims they know what they are doing --I bet their guarantee is for 30 or 60 days -- it's worthless when the person is dead!  I urge you to use a TX form and save your heirs a lot of heart-ache!  The executor needs to include the "magic words" --  "an independent executor to serve without bond" or the judge will have to approve everything action the executor does -- that costs a huge amount of money & might wipe out your estate! Hopefully, that will scare you into doing it properly! Just those 7 little words could cost you thousands of dollars if not done properly -- lawyers make thousands of dollars every month because people try to save a couple of hundred dollars! 

Everyone over the age of 18 in Texas needs to have forms prepared and notarized -- some of these forms don't technically need to be notarized -- but I like to have them notarized since it makes them look more "official" and you already have to have a notary there for the will & it shows that you took the time & effort to do it! It impresses your friends & relatives & they tend not to argue if forms are notarized & they were prepared by an attorney. 

These documents should be reviewed every 5 years or whenever you have a life cycle event (like a baby born, marriage or death). 

Why do it every 5 years?  Because you change, people come & go in your life, and your income changes -- if the person that you chose to be your executor is dead -- you need to select someone else -- so every 5 years have a glass one wine & read your documents & celebrate that you are still alive!  

Additionally, if you have more than one will, if the last will is held to be invalid, then the will before it becomes valid.  Therefore, if you anticipate a will contest, having more than one will if often part of estate planning.  Having similar wills shows that you truly intended to leave your estate to the same person & that there was no undue influence. If you anticipate a will contest, hire an experienced probate/estate attorney to assist you.  PLEASE. 

Don't dread revising these documents -- make is a fun, celebration that you are still alive & kicking! Make it a fun, celebration with your friends & loved ones!  Preparing these forms are worthless unless your friends & loved ones know that they exist -- so tell them where the copies are located!  Give someone copies.  Why not turn the execution ceremony into a celebration of your life every 5 years!  Make sure that your medical care providers have copies.  Copies are as valid as originals - except for the will. 

There are some other forms that you can execute -- but I have not listed them.  There is a Statutory Power of Attorney for Financial Affairs.  It is very powerful.  I don't recommend executing this form.  Talk to an attorney before you execute this form. Many people that execute this form regret doing it.  Many financial institutions refuse to honor it unless executed in their office, on their approved form by their notaries because there has been so much abuse.  They are tired of getting sued so their attorneys have refused all forms not executed outside of their offices.  If you are interested in knowing about the other estate planning forms, then meet with an attorney & discuss your particular situation.  I only listed the basic forms above.  

Keep the forms where they can be located in an emergency – such on your refrigerator in an envelope marked – “emergency”.  Don’t put them in a safety deposit box!  Never put them in a safety deposit box - your friends & family need to be able to find them -- I have them on my bulletin board by my back door -- marked in red "EMERGENCY DOCUMENTS" so that anyone can see it if there is a crisis!  It's not a bad idea to keep an extra set in an envelope in the car in the glove box marked in large letters "EMERGENCY DOCS!". 

CAUTION:  Beware of kits sold on-line or in bookstores!  If they were not prepared by a Texas attorney, they might not meet Texas laws.  Probate is a state issue and each state has different laws and requirements regarding a properly prepared legal document.  Don’t try to save a couple of bucks and end up costing your heirs thousands of dollars!

I recommend Attorney W. Kevin Alter at 713-526-2333
I get no money from this referral.
He is very pleasant & gentle.
His rates are reasonable.
He is located at 2020 Southwest Freeway#225 (77098) 
(59/Shepherd Drive)

No comments:

Post a Comment