Estate Law

  

Estate Planning is that branch of the law which helps people to make arrangements for themselves and their estates when the time comes that they cannot do it for themselves.  Estate planning creates peace of mind for the planners as well as for their families and, in the end, usually saves on costs.  There are several different documents which accomplish several different tasks.  Every document is tailored to the individual’s needs.  This law is rooted in law centuries old and has some quirks which make it difficult for the average citizen to compile his/her own paperwork.  Some of the documents are listed below. 

Will - An individual’s Last Will and Testament is the document which allows you to make  final arrangements for your children and worldly possessions.  Through your Will, you will appoint an individual to see to it that the mandates of your Will are carried out.  You will name the persons who will receive the net assets which you own at the time of your death.  You will also name individuals who will take care of any minor children (guardians) and any assets that you devise to them (trustees). While it is always best that husbands and wives agree on the terms of their Wills, at least insofar as their minor children are concerned, it is not necessary and should not stand in the way of each putting down his/her wishes. 

The State of Texas has drafted a Will for everyone who resides in Texas who does not have one.  It can be found in the Texas Probate Code and is neither clear nor easy to administer.  The amount of money saved by not having a Will prepared is quickly dwarfed by the expenses of an intestate proceeding (the administration of the estate of a person who dies without a Will). 

Codicil - This is how Wills are amended and require the same formalities as when a Will is originally executed. 

Durable Power of Attorney and Revocation - The durable power of attorney is a document which is filed in the Real Property Records of the county of your residence and in every other county in which you own real property  which puts the world on notice that you have appointed someone who can act in your place, as your agent.  This document will spell out the terms of this person’s powers and will stay in place until revoked by an additional filing in the same records. 

The centuries old law of agency allows for the appointment of agents, but only recently has the legislature created a power of attorney which will survive when the person is no longer able to act for him or herself.  This defeated one of the main reasons for the powers to be used, so, now there is a process whereby you can avail yourself of the new law, skirting the old. 

If you do not have a Durable Power of Attorney and you become incapacitated, your loved ones will have no option but to establish a guardianship of your estate, which is a very costly and time-consuming endeavor that  requires the posting of a bond, court supervision and annual accountings. 

Medical Power of Attorney for Self  and Revocation - This document allows you to appoint someone specifically to make medical decisions for you and remains in effect until revoked.  Obviously, when you are not conscious, you are not in any condition to give your consent to medical treatment.  This document gives the medical personnel the legal comfort needed for them to move forward with your treatment, as specified by you while you were capable of making those decisions, or as dictated by your trusted agent. 

If you do not have a Medical Power of Attorney and you become incapacitated, then your loved ones will have no option but to establish a guardianship of your person – which is a very costly and time-consuming endeavor.  The post of a bond and annual reports are required. 

Medical Power of Attorney for Minor Dependent Children - This document allows you to appoint someone specifically to make medical decisions for your minor dependent children in the event that you are unable to do so yourself.  It, too, remains in effect until revoked, unless a shorter duration is established through the document.  This is important any time that you allow your children to travel with others, for example, or when you travel and leave your children with others. 

HIPAA Release for Self and Revocation - Under some of the new federal privacy laws, medical personnel cannot give out your medical information.  By signing a HIPAA Release, you are authorizing others, those whom you wish to have access to your medical records, to have the needed access.  This Release usually goes hand in hand with a Medical Power of Attorney.  These are usually given to spouses and children. 

HIPAA Release for Minor Dependent Children - If you have minor dependent children, then you can also sign a HIPAA Release authorizing the children’s medical records to be release to certain persons.  This Release usually goes hand in hand with a Medical Power of Attorney for Minor Dependent Children. 

Designation of Guardian Before Need Arises and Revocation  - This document does exactly what its name implies.  Whether we like it or not, some day many of us are going to lose the mental capability to take care of ourselves.  More often than not, if you have a Durable Power of Attorney and a Medical Power of Attorney, there will not be a need for a guardian of your person or your estate.  However, sometimes, even though you have Powers of Attorney, guardianships are needed.  Just in case the need for a guardian of your person or estate ever occurs, then this document allows you to make the decision of who you want, and who you do not want, to become your guardian.  Many times, as we age, our children will not be in agreement regarding which one of them should take care of us or how they should do it.  So the battle of the children’s running Mom and/or Dad to their attorneys to prepare Powers of Attorney naming them as each parent’s agent begins.  The only way to put an end to the ever-revolving new Powers of Attorney and revocations of Powers of Attorney is to establish a guardianship.  The Texas Probate Code sets out a listing of the order in which your closest relatives will have the right to be your guardian.  If you do not like the chronology of that list, then you need to establish your own list of successors – and specifically mention those whom you would NEVER want to serve as your agent.  It is an inexpensive protection to have. 

 Directive to Physicians and Next of Kin and Revocation - Our mortality is a certainty, but its timing is not.  This document gives instructions to the medical community and your next of kin regarding your wishes about  exceptional medical treatment.  Some people whose time is near simply want to pass along to the next adventure.  Others want to fight until the last tooth and nail are broken.  With this Directive, you will be able to make the choice for yourself while you are able and give comfort to your loved ones in that they will not have to be making these difficult decisions on your behalf. 

Declaration for Mental Health Treatment and Revocation - This is a document whereby you set forth your desires relative to any mental health treatment which you may require in the future.  It will remain effect until it is revoked. 

Appointment of Agent to Control Disposition of Remains and Revocation - This is a document whereby you name someone as your agent to dispose of your remains (body, ashes) at the time of your death.  It is important for someone who is unmarried and has no children, for example, to have one prepared – as it is for someone who is married but does not want his or her spouse to dispose of his or her remains. 

Gift by a Living Donor and Revocation - This is a document whereby you gift  body parts or YOUR entire body to science, after your death, to help save the lives of others when your life has ended or for medical research, for example. 

Declaration of Appointment of Guardian for Children - This is a document whereby you appoint someone as the guardian for your minor children or incompetent children  to serve, in your stead, in the event that you are unable to do so for reasons other than your death. 

Trust Creation and Administration - A trust is the original legal entity dating back centuries.  This device is a formal arrangement where one person or entity is given title to property for the benefit of a different person or persons.  These are used when a person would like to give an asset to a person who may not be quite able to handle that particular asset;  for example, minors or incompetent adults.  It can be used to allow for the education, welfare and benefit of one person for his or her lifetime and, after the death of the first beneficiary, then, with what is left,   for that of  a second beneficiary .  This is popular with second spouses and first marriage children.  While most people will never need a trust, we can help if you think you may be one who does need one. 

Links: 

Texas Probate Code:  After you arrive at the Texas Quick Search page, select "Probate Code" from the Code drop down menu. (More)

CONFIRMATION OF JOINT REPRESENTATION

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CONFIRMATION OF JOINT REPRESENTATION- UNMARRIED 

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