FREQUENTLY ASKED ESTATE PLANNING QUESTIONS
What is estate planning?
Estate planning enables you to make vital personal decisions about the management and distribution of your assets, as well as your health and personal care if you become unable to do so yourself. An effective estate plan allows you to accomplish your personal and family goals for distribution of your assets and personal care, while providing peace of mind regarding management of your financial and legal affairs. Depending on the value of your estate, some estate plans also include measures to reduce taxes and other expenses. Having a proper estate plan in place is extremely important. Unless you make your wishes known, the state of Texas has laws in place that will make the decisions on your behalf.
What is a Last Will and Testament?
A last will and testament is a document that state laws recognize as legally enforceable to convey your real and personal property upon your death in whatever manner you direct. A will offers you great flexibility for accomplishing your wishes.
What is an executor?
An executor is the person you designate in your will to administer your estate. Once appointed by the court through the probate process, he or she has the legal authority to carry out your wishes as stated in your will.
Why do I need to appoint a guardian for minor children?
If you should die without a will and fail to designate a guardian, the courts will decide who takes care of your minor children. The court system does not know your children and can't have an understanding of your wishes for them unless you have a legal document such as a Will appointing one.
You should state in your Will who you want to serve as the guardian of your children in the event you and your spouse pass away before your children are legal adults--age 18 in Texas. You can name any person you choose, and you can also provide a list of persons in order of preference. You may name two persons to serve, but they must be married to each other.
Where do I list my personal property?
You can list your personal property and household effects such as artwork, furniture, jewelry, collections, china or anything of personal value in a document titled “memorandum regarding personal belongings” which allows you to handwrite personal items and whom you would like them to be distributed to. Your Last Will & Testament will make reference to the document and request your Executor to honor your wishes written in the memorandum.
Should I inform my attorney if I have a special needs child or have concerns my child will be unable to manage his/her financial affairs?
Yes, you will want to inform your attorney of any special needs or concerns of your children so she can tailor your estate planning to ensure their inheritance is protected and managed according to your wishes.
How frequently should last wills and testaments be updated?
It’s a good idea to review the terms of your will from time to time to determine if events, such as the following, require that it be revised:
· Death of the individuals named in your will to receive all or a portion of your estate;
· The birth of children or grandchildren subsequent to the preparation of your will;
· Acquiring or disposing of assets;
· Children who were minors when the will was prepared reaching the age of majority.
It is a good idea to go over your will every five years regardless of events in your life to identify anything you might want to add or change.
What happens if someone does not have a medical power of attorney or durable power of attorney and he or she becomes incapacitated?
In the event that an individual becomes incapacitated and can longer care for themselves or manage their own financial affairs, a court may appoint a legal guardian to do so on behalf of the incapacitated person (also known as the “ward”). An individual may be appointed either guardian of the person or guardian of the estate, or both, depending on the needs of the incapacitated person.
It is important to prepare ahead of time by having a Medical Power of Attorney and Statutory Power of Attorney completed to avoid the lengthy and costly court proceedings involved in a court ordered guardianship.
What is the difference between a Will and a living will?
A living will, also known as a directive to physician, allows you to designate in advance medical treatment for end of life care, specifically regarding the use of life-sustaining treatment in the event of an irreversible or terminal condition. However, a Will is a document used to specify how you would like your assets distributed upon your death.
What is a Statutory Power of Attorney?
A Statutory Power of Attorney is a document in which you designate an agent to handle your financial affairs in a situation where you are incapacitated and unable to do so for yourself. You can make the Power of Attorney effective immediately or upon your incapacity. It is more common to make the document effective only upon incapacitation due to the broad powers the document enables the agent to make.