Top 10 Most Common Estate Planning Questions Answered
Top 10 Most Common Estate Planning Questions Answered
Death is not a topic that most people like to consider. However, it’s an unavoidable part of life. Unfortunately, there are many common misconceptions that exist regarding estate planning and planning for incapacity. Because of that, many people feel prepared when in fact they are not. In order to help you understand how estate planning and probate works, here are the top 10 most commonly asked questions regarding estate planning and probate answered.
1. 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.
2. I don’t have very much property. Can’t my family just divide my stuff on their own without court intervention when I pass?
The answer to this question depends more on what type of property you own as compared to how much property you own. Generally, it is possible to effectuate the distribution of personal effects among a family without court intervention. However, this will also depend on how amicable your family is during a very stressful family event. Community property is treated differently than your separate property under the intestacy laws of Texas (i.e. no will), and half-siblings are also sometimes treated differently under the Texas default rules. Some titled personal properties (such as cars and boats) can be transferred with an heirship affidavit, but this can also require a judicial determine of heirship when the proper witnesses and parties cannot be identified. For the most part, it is very difficult to transfer real property without court intervention. If you have a plan as to how you would like your property distributed, the most efficient method for your family is to execute a will or create a trust prior to.
3. Is it possible to wait too long to complete my estate planning?
Yes. Other than the obvious reason, Texas law requires that you have testamentary capacity to execute your estate planning documents. This includes a mental capacity element. If you have reached a point in which you no longer understand the heirs of your body and/or the nature of your estate, you will not be qualified to execute an estate plan. Statistical studies show that 55% of Americans die without a will or estate plan, so it’s best not to put off estate matters that are of importance to you.
4. If I have a will, does that mean that my family can avoid going to probate court?
Not completely, no. The only way to completely avoid going to probate is to create a valid trust and properly transfer all of your assets into the trust. However, if you have no trust assets, the process for probating a validly executed will is much more efficient in terms of time and money than a dependent administration of your estate (i.e. no will).
5. I have a will, but it’s been a while since I’ve updated it. Do I need to update my will?
Major life changes such as death of a family member, divorce, birth of a child, or changes in assets often necessitate drafting a new will, or a codicil (amendment) to your current will. Each case is different, so if you have had some of these changes, consult with an estate planning attorney.
6. I can go online and download forms to write my will, why should I use an attorney instead?
In recent years, do-it-yourself providers have emerged in many fields ranging from income tax preparation to legal and estate planning. These services purport to provide, at low cost, the ability to generate computer-drafted documents that may bear some of the hallmarks of professionally-prepared documents. These services do a fairly good job of getting their customers the right documents, but they cannot address each customer’s individual concerns. Not everyone’s estates are treated equally. I have seen many clients that have used online services to help their parents with estate planning, but the documents were not executed in accordance with Texas law making them useless in the court’s eyes. Those who seek to replace proper professional advice with a do-it-yourself online document in complex fields like estate planning should understand the effects of their actions. It can be done, but there is a high margin for error.
7. I want all life-sustaining measures to be taken. Should I still need to complete an advance directive?
Yes. The advance directive simply states what your wishes are regarding your health care treatment. You can state that you want all life-sustaining treatment, no life-sustaining treatment, or anything in between.
8. I’m already an organ donor on my Texas Driver’s License. Do I still need to appoint an agent to control disposition of my remains?
Yes. Although you have designated your intent to donate your organs and tissue with the Department of Transportation, this is not binding on your family. If you have specific wishes in donating your organs or tissue upon your death, including what you do and do not want to donate, you should appoint an agent to control disposition of my remains prior to your passing, and state your specific wishes.
9. When does an Advance Directive to Physicians come into effect?
The directive to the physician becomes effective when you have a terminal illness or irreversible condition AND you are no longer competent (“possessing the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefits and harms of and reasonable alternatives to a proposed treatment decision”) to make a health care choice. A Healthcare Directive to Physicians (a/k/a living will) is a very important estate planning document that may people overlook when simply preparing a will.
10. My mother passed away recently and left a valid will. Do I have to have an attorney represent me when I admit the will to probate?
Yes. This is one of the most common misconception surrounding the field of Probate proceedings (even legal zoom incorrectly states that an attorney in not required). Under Texas law, individuals applying for letters testamentary, letters of administration, determinations of heirship, and guardianships of the person or estate must be represented by a licensed attorney. This is because only a licensed attorney may represent the interests of third-party individuals or entities. The only time a pro-se applicant may proceed in court is when truly representing only himself or herself, which would be in a small estates proceeding or an application to admit a will to probate as a muniment of title. If you need to admit a will to probate, you will have to hire an attorney. Never fear, the cost of getting a validly self-proven will admitted to probate is fairly minimal. I will also add that hiring competent counsel to assist you in these matters will make the process more efficient and ensure that every act taken to close the estate is done in accordance with the law.
If you have questions regarding your estate plan or if you need help with the probate process, call The Larkin Law Firm today to schedule a consultation.