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