By: Lynn Foster and Lonnie Foster
Everyone in Texas who has attained the age of eighteen or who is or has been lawfully married, or who is a member of the armed forces of the United States or of the auxiliaries thereof or of the maritime service at the time the will is made, being of sound mind should consider a Will regardless of age.
If you have financial accounts only, or financial accounts and a house and certainly if you have children. This is true if you are young or old. Texas has a very simple method of probating a Will and provides for an Independent Administration which will save having to be subjected to an expensive method of dealing with your property.
Once the Will is probated the only requirement of the Court is to provide a final inventory of property. Your appointed Executor will not have to go back to the Court under most circumstances.
You can provide for a Trust for minor children in the Will and appoint a Trustee. The Trustee will be able to take care of the kids financially as you would have if you were still alive. It is important to pick someone who is financially stable and has the same beliefs and morals a you. The money from the trust can be turned over to the kids at any age that you choose, just not before eighteen (18).
You can also appoint a guardian for your children if something happens to both parents at the same time or something has already happened to your spouse. This gives the parents the ability to tell the court who they want to raise their kids if they are gone. Typically the court will honor this request unless they are not qualified to serve at that time or it is not in the child’s best interest.
Further, having a Will allows you to make provision that might save you money if yours is a taxable estate for Federal Estate provisions. You can also make specific bequests of items that you want to go to a certain person. You may have some item that has been handed down through the family that you want to stay in the family. You may have certain jewelry you want to go to a certain child or niece.
Without a Will, your family may have to go to the Court for Administration which is very expensive, requires bonds, inventories, and court approval of nearly everything that is done. It also prevents your property from going to the people you want it go to. The court will divide your property between your heirs at law. If you are married and have children from a previous relationship this can be very complicated and difficult for your spouse. You will also have no say in who is guardian for your kids. There is a provision in the Texas Probate Code that deals with Descent and Distribution. This covers division of community property, separate property. This will affect you if you have no Will. This may not be the way you want your property to go. Making a Will is much less expensive then not having one and you control what happens with your children and your property.
All adults should also look into having Power of Attorney’s (POA). There are two types of Power of Attorneys’s that you should have. There is the Medical Power of Attorney and the Statutory Power of Attorney. These two documents are designed to avoid guardianship.
The Medical Power of Attorney lets you designate who, whether spouse or someone else, that will make medical decisions for you if you become incapacitated. Once you gain your capacity back to make your own decisions then the person having the power is removed. If you become incapacitated again and have not revoked that Power of Attorney then it is still good.
The Statutory Power of Attorney lets you designate someone, and alternants who will be allowed to make financial decisions for you. This Power of Attorney can be effective Immediately or upon disability. I never recommend to have one effective immediately unless there is some specific limited need such as needing some one to sign closing papers and you are unavailable. This type should be limited in time also.
The Statutory Power of Attorney is very powerful. The person appointed can do anything with your financial holdings that you could do unless you limit the scope of the Power of Attorney. It is important that you pick someone who is financially stable themselves and who has the same values and beliefs as you. The combination of the Medical Power of Attorney and the Statutory Power of Attorney is try to prevent the need for a guardianship upon your disability. If you have neither of these then if something happens and you are incapacitated for some period of time, thens someone will have to apply for a guardianship which can be very costly and time consuming. Power of Attorney’s are designed to avoid guardianship but are not a guarantee of avoiding the guardianship.
If someone wants they can file a guardianship even if POA’s exist. However the person you name in the POA is going to be given preference by the court to be the person appointed in the guardianship unless they are unfit or unwilling to serve. Power of Attorney’s expire upon death and that is when the will directs what is to happen with your estate.
Wills are just a piece of paper and have not legal bearing until probated. They are only probated if there is a need. If you name beneficiaries on all of your financial accounts, this includes checking, savings, money market, life insurance, investment accounts and any other accounts you may have, they will transfer upon submission of your death certificate. The will does not affect these accounts, they transfer to the beneficiary without any probate needed. There is also now a Transfer on Death Deed for Texas property. If you do this document as well and setting up the beneficiaries on all other assets then you will may not need to be probated. The will is there however incase an asset is in the name of the deceased and does not name a beneficiary.
It is very important to get with an attorney and discuss options for your estate planning needs. This again is important for all ages and wether you have kids or not.