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I can’t count the number of times I’ve spoken with a potential client about an estate plan and they say something like, “I don’t have an estate” or “I don’t need a will because my family knows who gets what.” Well if you die without a will, intestate in legal terms, and you have property, particularly titled property such as cars, boats or real estate, then your wishes, even if your family knows what they are, are going to be difficult and expensive to carry out. And just because you believe your next of kin may be aware of what your wishes are, doesn’t mean everyone will abide by or agree with those wishes when you die.  

For the purposes of this article, suffice it to say that, in most cases, dying without a will, will result in a lengthy and expensive legal proceeding to establish your heirs. Your assets will, more than likely, be distributed to your heirs according to Texas State statutes and what’s more if you haven’t appointed a guardian for your minor children a judge may make that decision, despite knowing nothing about your family.

It’s important to understand that much of what makes up an estate plan has to do with what happens in the event you become incapacitated and don’t necessarily die. After all, even if you have a will, its provisions won’t take effect until you pass and as you get older the likelihood of incapacity increases, even more so than death. Think about it. What if you have a stroke or suffer some other catastrophic medical event that leaves you alive, but in no condition to make medical decisions, much less take care of other important day-to-day matters like dealing with insurance, doing your banking or paying your bills?  

At the Law Office of Steven C. Buitron, PLLC we recommend that everyone, regardless of age, marital status, wealth or health have, at a minimum, the following estate documents in their important papers.

1. A Will.  

Your will should be professionally drafted, up-to-date, and properly executed.

2. A Texas Statutory Power of Attorney 

A Texas Statutory Power of Attorney, also known as a Durable Power of Attorney allows you to appoint a family member or friend as your agent in order to oversee and manage your finances in the event you become incapacitated. In the event you become incapacitated and don’t have a Durable Power of Attorney then a legal guardianship proceeding may be required to appoint an agent for you. Guardianship proceedings can be very expensive and time-consuming.  

3. A Texas Medical Power of Attorney 

A medical power of attorney permits you to appoint an agent, a family member or friend that you trust, to make medical decisions for you in the event you become incapacitated and are unable to make healthcare decisions for yourself. All adults should have a medical power of attorney because regardless of age or health we are all vulnerable to unexpected injury or illness. 

4. Declaration of Guardian for Self or Declaration of Guardian for Self and Minors

Under Texas law you may designate a guardian for yourself (your person) or your estate in the event that a court finds you incapacitated. The court must formally appoint the person you designate as your guardian and will do so unless the judge determines that the appointment is contrary to your best interests. You may also declare in this document who you do not want to be appointed as either the guardian of your person or your estate. It is possible to designate your guardian in your will, but we also like to use this document in the event issues arise with hospitals or healthcare providers regarding the healthcare directive or medical power of attorney and in the event of your incapacity. 

Additionally, under Texas law, a parent may designate, again by written declaration or will, who, in the event of the parent’s incapacity, shall be his or her minor children’s guardian of the child’s person and estate.  

5. A HIPPA Authorization

HIPPA or the Health Insurance Portability and Accountability Act is a federal law that created rules and guidelines concerning who may gain access to or view your medical records or receive health information. A HIPPA authorization permits you to name someone that may have access to your medical records and information. This access may be necessary in order for the person you authorize to obtain information for your healthcare providers or insurance should you become incapacitated.

6. A Texas Living Will (Directive to Physicians)

A living will or directive to physicians is a document that permits you to let your doctors know what your wishes are regarding the use of artificial means to keep you alive in the event you are diagnosed with a terminal or irreversible condition.  

7. Appointment for Disposition of Remains

The appointment for disposition of remains is a document that appoints an agent of your choosing, a trusted friend or family member, to possess the authority and monetary responsibility for the disposition of your remains. For example, your desire to be cremated or buried in a particular place would be outlined in this document. If the executor of your will is appointed he/she may use funds from your estate for any costs associated with the distribution of your remains. The document should also name a successor agent in the event that your first choice is unable or unwilling to serve as your appointed agent. Agents and any successors must sign the document accepting their appointment.

Steve Buitron, JD, MPA

The Really Hard Part

When I’m handling a divorce for a client with children under the age of 18 I often find myself telling him or her, more than once, that their interactions with their future ex won’t end once the divorce is final as much as they might hope for that. Unless their future ex is someone who will never, by their own choice, have any contact with his or her children again after the divorce is final, a very rare and usually undesirable occurrence, then they will have to learn to get along, at least enough to co-parent their children effectively.  

Everything else involved in dividing up the marital estate is just stuff, fleeting artifacts I remind them, that pale in comparison to the most important product of their marriage, their children. After divorce children have an understandable desire and expectation that their parents will be able to do far more parenting than merely being able to tolerate standing in the same room together. Children hope with all their hearts, whether they can or do actually verbalize it, that their Mom and Dad will be able to actually co-parent them; talk about their problems and concerns together and actually be their parents and not merely distant individuals whose only interactions concern pick up and drop off logistics.  

What children fear most in divorce, apart from the inevitable periodic separation from one parent, is that that separation will be forever and that Mom and Dad now hate each other and that the family they were once comfortable with is now changed forever, and not for the better. Of course, there are situations where the acrimony between spouses is so great and sometimes violent that divorce and permanent bad feelings are inevitable, but in my practice, that is usually not the case. In my experience, both spouses are usually good parents that just cannot be married any longer. The reason or reasons are, where their children are concerned, unimportant.  

There is no denying that the transition from a married couple to two people attempting to co-parent their children is difficult. If there weren’t already bad feelings between the spouses they wouldn’t be divorcing, but note that difficult is not even in the same universe as impossible. As hard as it may be, divorcing spouses must separate their divorce and the inevitable conflicts and compromises along the way. What is imperative, is that they must, for the sake of their children, be able to work together going forward, to raise their children together and be able to rationally discuss the many issues, (school, medical, religious, etc.) that will arise during the years before their children are emancipated. I recommend to my clients that they participate in co-parenting classes in order to learn how to master what is, without a doubt, a tough, but necessary skill. Parents need to come to grips with the reality that just because they cannot be married does not mean that they can’t still be effective parents. It’s not easy. It takes work, compromise and the willingness to put one’s hurt feelings, anger, and resentment away in the interest of doing right by your children.  

Remember, Mom and Dad, you wouldn’t hesitate to run into a burning building or leap into a raging river to save your children, well, in a very real sense, they need your saving now. Don’t let them down. 

Steve Buitron, JD, MPA