I am married with young children. Do I really need a Will?
Yes. For most couples their most important asset is their children; consequently, it is important to provide not only for who will manage any assets they may receive at your death, but perhaps more importantly, who will have actual physical custody of your children. Your Will is the means by which you can express your plan for how inherited assets will be managed for your children (a Trust) and the means by which you can determine who will have the important job of raising your children (the designation of a guardian of the Person). You owe it to your children to have your Wills prepared to address these important issues. If you fail to do it properly, a Court will likely decide who will care for your children, and who will be in control of their assets.
What happens if I die without a Will?
A person who dies without a Will is said to die “intestate”. In this case, state law controls who will receive the decedent’s property, depending on the nature of the property, and the family circumstances of the person who died. Although the law passes the property to family members, it sometimes produces surprising results the decedent would not have wanted. For example, if a husband dies intestate leaving a wife and their children, his half interest in their community property is inherited by his spouse. However, if he has children from a prior marriage, they will receive his half interest in the property, with no provision for his surviving spouse other than a “life estate” interest in their homestead. Further, if the property is inherited by minor children, they will be unable to do anything with the property until they reach 18 years of age. If it is necessary to sell their property to pay for their education or medical bills, a guardian may have to be appointed to handle the property, at a great expense. If a person who dies without a Will has debts, an administrator for the estate must be appointed. Normally, the administrator must serve subject to the court’s supervision and must post a bond. Overall, the intestate proceeding can be expensive in court costs and attorney’s fees.
My husband or wife just passed away, what do I need to do?
Most of the time when a person dies, some action will need to be taken to settle his estate – particularly if the person owned real estate at the time of his death. Consequently, you should contact your attorney, schedule an appointment and let him go over with you what will be required to settle your husband’s estate. He will probably provide you with a letter which will outline the information you will need to bring to a meeting.
Medicaid / Long-Term Care Planning
Medicaid eligibility requirements in Texas are ever-changing, but they can include limits on the amount of income received or resources owned by the Medicaid applicant. You may have heard of things such as a Miller Trust or Ladybird Deed before, both of which are tools discussed in Medicaid planning, but there is no “one size fits all” plan for Medicaid. To get the most up-to-date information on Medicaid and long term care planning, please give us a call and schedule an appointment to visit with us about your individual situation.
Financial Powers of Attorney
Powers of Attorney are designed to avoid the complication, expense and trouble of a Court supervised Guardianship which could be necessitated should you suffer a stroke, senility, Alzheimer’s, an automobile accident, or any other disabling, incapacitating event. A Power of Attorney is no longer valid as of the death of the person who made and granted the Power of Attorney.
Medical Powers of Attorney
These Powers of Attorney authorize your designated agents to make health care decisions for you, and again without the necessity of having to have themselves appointed as guardians for your benefit through the Probate court. Guardianships are something which should be avoided in Texas at all cost.
The federal Health Insurance Portability and Accountability Act (HIPAA), 45 CFR Sec. 164.508, limits disclosure of your medical information unless you authorize it. Of course, it is essential that the persons who you trust have access to your medical information so that they can make medical decisions for you if you are incapacitated. By signing a HIPAA Designation and giving it to those whom you trust, they will then be authorized to submit it to medical providers to, in turn, secure the information which they will need on your behalf.
Declarations of Potential Guardian
Declarations of Potential Guardian are designed to supplement the financial and health care Powers of Attorney. The document prohibits any one from being appointed as Guardians other than those you name, and in the order you name them.
Declarations of Appointment of Guardian for My Children in the Event of My Incapacity
This document appoints the persons you have selected to serve as guardians for your children should you become incapacitated.
Directives to Physicians (Living Wills)
“Living Wills” are authorized pursuant to the Texas Natural Death Act, and should you be in a coma, for example, and unable to make decisions as to termination of life support systems in the event of a terminal illness, then you authorize your appointees to make that decision for you, but only within the guidelines as set forth in your Directive.