Experienced, Compassionate Estate Planning Attorney
Many people believe that estate planning is only for people who are particularly wealthy, have elaborate schemes in mind for passing their money to their heirs, or for people who are acutely ill and contemplating their death. This could not be farther from the truth! Estate planning is for every husband, wife, mother, father, grandparent, business owner, professional, or anyone else who has someone they care about, are concerned about providing responsibly for their own well being and for the well being of those they love, and for anyone who seeks to make a difference in the lives of others after they’re gone. Estate planning is not ‘death planning’; it’s ‘life planning’, and an essential and rewarding process for individuals and families who engage in it.
When done properly, estate planning requires that a highly trained individual lead you through one or more in-depth meetings to uncover your hopes, fears, and expectations for yourself and for those who are most important to you. This process almost always requires the preparation of several sophisticated legal documents, but those documents themselves are not ‘estate planning.’ Planning is a process, represented by a complete strategy that is properly documented and maintained by a professional who has taken the time to get to know you, and who is committed to continuing to serve you.
Components of an Estate Plan
A will – or a ‘last will and testament’ – is a legal document that tells the probate court how you want your property distributed after you die, and who has the power and responsibility to wrap up your affairs. Through the probate process the court will give the ‘executor’ of your will the authority to gather all of your property, pay any remaining creditors’ bills, and distribute your remaining property as you specify in your will. A properly designed Texas will can minimize court administration costs and make things simple and easy for your executor.
In addition to transferring property, your will also appoints a guardian for minor children and may disqualify anyone you do not wish to serve as a guardian for your children.
Because the will takes effect only after a court determined that it is a valid document, a judge must act before your executor can step in and manage your estate in most cases.
Revocable Living Trust based estate plan provides instructions that will allow you to:
- Control your property while you are alive
- Take care of you and your loved ones in the event of disability
- Pass your property to your heirs when and how you want while maintaining privacy
- Ensure that you and your spouse have sufficient assets to maintain your standard of living now and in retirement.
- Maintain maximum control and flexibility during your lifetime.
- Provide for you in the event you become disabled.
- Simplify administration as much as possible upon your death or disability (avoiding probate & guardianship).
- Avoid having your private matters being made public unnecessarily.
- Ensure that the efforts you desire are used to save your life.
- Have your property continue to benefit the survivor after one of you dies.
- If married, protect your assets so that they cannot be lost as a result of remarriage after the death of one of you.
- Ensure that the persons you select in fact become the guardians of your minor children.
- Protect your children’s or grandchildren’s inheritance from mismanagement.
- Structure your children’s or grandchildren’s inheritance in such a way that it installs values and virtues.
- Educate your children and grandchildren.
- Reduce the risk of litigation from heirs who receive less than they think they are entitled to.
- Minimize income taxes to the extent possible.
- Avoid or minimize capital gain tax on the sale of assets.
- Eliminate as much estate tax as possible.
The Medical Power of Attorney lets your trusted friend or family member to make medical treatment decisions for you if you are unable to communicate your wishes to doctors. Without one, either a guardian must be appointed on your behalf, and a person you don’t trust may become responsible for making decisions for you. A healthcare power of attorney not only saves precious decision making time, but it also makes sure that the individual you trust the most has the power to make these most important decisions for you if you are unable to make the decisions on your own. Included with the Medical Power of Attorney is a HIPAA Release, which allows the people making your medical decisions to have access to your health care records, for your benefit.
The Directive to Physicians, or living will, provides your medical power of attorney with your life-sustaining treatment preferences should you be faced with a condition where survival is not expected without permanent life support measures. While it is often uncomfortable to make this decision or think about these decisions, especially if you are young, you can give your medical power of attorney clear directions about your care. One note is that this document is different than an out of hospital Do-Not-Resuscitate order.
Major medical decisions often must be made on short notice, and both first responders and your doctors particularly want to know who to contact in an emergency. In addition, if you have minor children, it is important to have contact information for who will take care of them while you are in the hospital. Because of this need, The Weeks Law Firm, PLLC is proud to be affiliated with DocuBank, a nationwide medical directive storage and emergency contact information clearinghouse for your trusted friends and family members to be quickly informed about any emergencies.
Who will make decisions for you if you are unable to make them for yourself? Who will have the power to sign documents on your behalf, or make sure your bills get paid if you are in the hospital for awhile?
Without a Durable Power of Attorney, someone who is mentally or physically incapacitated must be taken to a probate court to have a guardian named for them by a judge. A carefully written durable power of attorney will allow you to name someone you trust to make decisions for you if you become disabled to the point of no longer being able to make those decisions yourself. In addition, it can help you plan not just for incapacity, but for those who travel regularly, have exceptionally intense careers, or have extensive caregiving requirements for another, any of which can cause bills and deadlines to be missed. If necessary, a durable power of attorney can also be drafted to account for possible future long-term incapacity and facilitate planning for future special needs.
At The Weeks Law Firm, PLLC, our attorneys can help you choose and make sure that who you want to care for you will be the ones who take care of you, should you become no longer able to manage your affairs.
In addition, the state of Texas also includes additional, more specialized documents to account for individual and family’s needs, which are discussed in greater detail under specialized documents.
Estate Planning is not just about determining who gets what property. Both documents applicable during your lifetime and those applying after your death are expressions of important values. For example, who you choose to make medical decisions for you should reflect your moral, ethical, and spiritual values, so that when that person has to make decisions according to your wishes, he or she has a strong understanding of who you are. Simply completing your estate planning, whether simple or complex, sets a good example to your children and helps reduce the stresses and costs your surviving spouse and children will face at your death.
However, your estate planning gives you an opportunity to look at the values you wish to pass on to your children, an especially important consideration if they should be orphaned while young. If you or your spouse have prominent values you wish to transmit to your children, you can put certain specifications into their trust or trusts, such as instructing the trustee to provide your kids with a certain form of education. Similarly, if one or both of you had a formative experience on a journey, authorizing the trustee to provide for that experience you would have heartily given to your kids is a way to transmit those values.
There are several ways to expand upon this approach. One can be taken in the form of an ethical will to your children that usually takes the form of a letter written to them with wisdom, perspective and encouragement in their lives, and an honest appraisal of what you would encourage them to do differently. A supplemental tool can be a memo of intent in which you specifically inform your trustee about important family considerations, greater detail about experiences you wish to encourage, and the like.
Many people know about the medical and financial powers of attorney and the living will, but Texas also gives your family access to additional tools that can give great peace of mind. These documents, described below, give you a great deal of control over deeply personal decisions and give clarity to your loved ones.
- The Declaration of Guardian allows you to appoint a person or persons to officially and formally take care of you should you become incapacitated over the short and/or long term. It also allows you to make sure that someone you do not trust will not be taking care of you should expected or unexpected tragedy strike
- The Appointment of Guardian for Children supersedes the normal guardian designation in your will, but it provides some important benefits. One is that a will takes effect upon your death, whereas this document is available now. Second is that one of the biggest concerns families face is who would take care of the kids if one spouse is out of town and the other gets hurt or dies. By designating both temporary and long-term guardians, you can have peace of mind that the people you want taking care of your kids are the ones doing it.
- The Appointment of Health Care Agent for Children is essentially a medical power of attorney for your kids. If you travel frequently, frequently need someone to take care of your kids, or even want to know that a trusted friend or family member can make sure your kids can see a doctor if you’re unable to take care of them, this can be a great tool.
- The Declaration for Mental Health Treatment addresses one of the most difficult and distressing possibilities a person can face: acute severe mental illness requiring hospitalization. The uncertainty of an episodic attack or the prospect of likely mental illness in the future due to a family history of it can be terrifying. This document allows you to carefully and thoughtfully plan for any such future short-term incapacity by discussing what treatments you do and do not consent to, as well as the order in which they should be undertaken.
- The Gift by a Living Donor allows you to designate, with specificity, how and to what purposes your organs and tissues may be used, whether for transplant purposes, medical research, or anything in between. Related to this document is a separate form that permits donation of one’s body for medical study.
- The Appointment of Agent to Control Disposition of Remains is a tool that allows those for whom specific ideas, beliefs, or plans for their remains upon their deaths are extremely important to designate someone to carry out their final wishes.
These are specialized documents. Not everyone will want or need to address these issues, but if any of these issues are near and dear to your family, our firm can help you plan for them, so that your estate plan accounts for your care during life and what happens after your death.