The Will

A will is the foundation for estate planning. It allows you to decide how you want your property to be distributed at your death. In Texas, you may choose someone as your independent executor. That person can distribute and close your estate without court supervision in most cases. Or, if you prefer, you may select someone as a dependent executor, who must have court approval for almost every action taken regarding the probate of your will. Generally, I discourage my clients from using a dependent executor.
In determining how to draft your will, you need to decide several matters. For example, if your community property estate exceeds $1,000,000, additional provisions will be necessary to avoid excessive estate taxation. Also, you may wish to put some of your estate in a trust. These items need to be discussed and decided before executing a will.

If you have, or plan to have, or plan to adopt a child, you can decide in advance who you want to serve as the guardian of your child and who you want to hold in trust any estate or life insurance proceeds you leave to your child. The guardian should have good parenting skills, and the trustee of the funds should be good with financial matters. One person can do both, or you may want to have two people serve in those capacities.

You may also wish to leave part of your estate to a minor who is not your child. You may also appoint a trustee of that property to ensure the minor will receive your gift as you desire.

First, decide how you want your property distributed, and to whom. Then decide on one or more “default beneficiaries” whom you would want to have your estate if your first choice, or choices, are not able to receive your estate. A default beneficiary becomes necessary, for example, if your first choice dies before you do. I encourage you to have, as a last resort, some entity to receive your estate in the event none of your other beneficiaries can. This entity is called a "residual beneficiary." Clients have selected, for example, churches, colleges, and the United Way. The purpose of this “last chance” beneficiary is to keep your estate from being taken by the state, or “escheated.” The negative effect of a residual beneficiary is it can increase the cost of probating your estate after your death.

Next, decide who you want to be the executor of your estate, and whether you want to appoint that person as an independent executor. Then select someone as your "successor executor" to serve if your first choice cannot or will not serve. I believe it is a sound practice to have a second successor executor, as well.

Dying without a will, called “dying intestate,” will be troublesome for your survivors. If you die intestate, someone must file an “application for determination of heirship” to dispose of your property. In effect, this is creating a “family tree” to determine how many relatives survive you, and what percentage of your estate each shall receive. I have done these declarations of heirship, and the process costs far more than drafting a will. Perhaps what is more important, your property will be distributed according to the Texas Probate Code, not according to your wishes.

The Durable Power of Attorney

The next essential document is the durable power of attorney. The durable power of attorney gives the person you designate power over all of your matters (excluding health care decisions), or only over the matters you choose. For example, you may give someone durable power of attorney to handle your affairs if you are temporarily out of the United States. Or, you might give someone whom your child is visiting power of attorney to take your child for medical treatment. A durable power of attorney can go into effect when executed, or on the occurrence of some specific event, such as your becoming incapacitated.

First, choose someone to serve as your “attorney in fact.” That person does not have to be an attorney at law. Your choice must be someone you trust with power over all your possessions. The person you name as your attorney in fact will have the authority to do whatever you grant in the durable power of attorney.

In my practice, most married couples choose their spouses as their attorneys in fact. Many of my single clients choose a sibling, or an adult niece or nephew. You may also choose a successor attorney in fact, just as you should for your will. You should also decide when to have your durable power of attorney go into effect. Also, you can execute more than one power of attorney to meet your needs, as long as their conditions do not conflict with one another.

The Medical Power of Attorney

Finally comes the medical power of attorney, one of several types of documents known as “advance directives.” You probably have heard of a “living will,” which is in the same category. The purpose of advance directives is to direct health care providers not to use “heroic” measures to save your life. These are sometimes described as “do not resuscitate orders."

I encourage my clients to execute a medical power of attorney as their advance directives, rather than a living will. The medical power of attorney goes into effect when your doctor certifies in writing you are no longer capable of making your own health care decisions. Your attorney in fact will then have the authority to make any health care decision you could have made had you not become incapacitated. This includes the power to issue a do not resuscitate order. Provisions can also be made to avoid HIPAA regulations keeping your health care agent from reviewing critical medical records.

The care to exercise in choosing your health care agent is obvious. Most of my married clients choose their spouses. As with your will and your durable power of attorney, I also encourage you to designate at least one successor health care agent. Many times a spouse simply cannot issue an order not to resuscitate, knowing full well that is the desire of the person who is incapacitated. The successor attorney in fact, therefore, should be someone who can issue, without hesitation, a "do not resuscitate" order for you.

After you have considered these items, please call me and let me know how I can best assist you in executing these documents. Ordinarily, it will take about an hour to determine which forms will work best for you, and that can be done on the telephone or by mail. I will then complete the documents and submit them for your review and approval. When you are satisfied, we will need two disinterested witnesses and a notary public. I can provide those people at my office. These documents can be executed in other locations, of course, but an additional travel charge may apply.