Estate planning is a complicated legal matter that is unique for everyone who engages in it. It affords you the ability to ensure that your assets are protected into the future and that they will flow effectively and efficiently to your loved ones according to your wishes when the time comes, in addition to offering other forms of protection.

Because the legal intricacies of estate planning are complex, reaching out for the professional legal guidance of an experienced Temple, Texas, estate planning lawyer is always to your advantage.

One: Your Will

When it comes to estate plans, your will is of primary importance.

Your will is a legal document that outlines your specific wishes regarding your estate, or the assets and properties you have acquired over your lifetime, and how it will be distributed upon your death. Your will does not become legally binding until your death – at which point it must be verified by the court during the probate process.

In Order for Your Will to Be Legally Binding

There are specific rules in place that must be upheld in order for your will to hold up to the rigors of the court’s verification process. These include the fact that it must be in writing, which can mean being handwritten, typed, or printed.

If you handwrite your will, the entire document must be in your hand and must be signed by you, but there are no additional requirements regarding witnesses.

If your will is either typed or printed, you must sign it in the presence of two witnesses, and choosing disinterested parties as witnesses can further bolster the document’s authenticity. For a witness to be considered disinterested, they must have no inheritance rights and must not be named as a beneficiary in the will.

Attaching a self-proving affidavit to your will adds an additional layer of assurance. Doing so expedites the court’s verification process by not requiring witnesses to testify regarding the document’s legitimacy. Your self-proving affidavit must be signed by you in the presence of two disinterested witnesses who also sign it, and it must be notarized.

Your Will and Probate

Many people harbor the mistaken belief that having a will means skipping probate, but this is not how the legal process works. If you pass and do not have a will, you die intestate, which means that the probate process will be more involved and that state laws will dictate how your assets will be distributed.

It is also important to point out that the state’s decisions on the matter may be very different from the choices you would have made.

If, on the other hand, you have a legally binding will in place at the time of your death, it will guide the distribution of your estate according to the directions you include. You can also expect the process to be less cumbersome. Further, additional estate planning tools are available that can help you minimize the assets that will be subject to probate.

The Protections Afforded

Ultimately, your will serves as a vital backup tool. For example, if you have minor children, your will should address the matter of their guardianship in the event they lose both parents before reaching adulthood.

Additionally, your will can specifically address the distribution of any assets or properties you may have acquired since you last updated your estate plans.

Keeping Your Estate Plans Updated

Reviewing your estate plans regularly is always advised. It is not, however, realistic to keep your plans updated to the moment. And as a result, your will should include instructions regarding those assets that are not addressed by any other estate planning tools.

Probate and the Administration of Your Estate

Even if your assets are addressed by other estate planning tools, such as beneficiary-based accounts, managing the administration of your estate should also be considered. This includes taking care of concerns like the following:

• The verification of your will’s authenticity

• Any pending debts

• Your final taxes

Smaller Estates

As a final note, it is important to mention that most estates are probated – whether you have a will or not. The only exceptions in Texas are smaller estates that can be resolved through a small estate affidavit. In Texas, the cutoff for small-estate qualification is a total of $75,000 in assets, which does not include your homestead – or your primary residence.

Two: Statutory Durable Power of Attorney

A statutory durable power of attorney is a legal document that allows you to assign specific financial authority to an agent of your choosing. This authority extends to making financial decisions on your behalf in the event you are either temporarily or permanently incapacitated or are not available to make them on your own behalf.

Your agent’s authority is determined by the scope of the power of attorney you create.

Having a statutory durable power of attorney does not interfere with your ability to make financial decisions for yourself but, instead, is only triggered in accordance with the document you have created. This can be in the event that you are incapacitated or that you are not available to conduct an important financial deal.

Your agent takes on a fiduciary role, which comes with important legal responsibilities, which include all the following:

• A duty to prioritize your financial interests above their own and to act honestly and in good faith

• A duty to disclose any conflict of interest or potential conflict of interest

• A duty to exercise reasonable skill and care in relation to managing your finances or providing you with financial advice

• A duty to act with the reasonable prudence of someone who is familiar with the financial matter at stake

Three: Medical Power of Attorney

Assigning a medical power of attorney ensures that someone whom you trust to do so will be on call to make medical decisions on your behalf in the event you are either temporarily or permanently disabled. This legal document in no way lessens your right to make medical decisions on your own behalf, as long as you have the capacity to do so.

You should choose an agent who knows you well, who understands your preferences and values as they relate to health care, and who is capable of making critical decisions under pressure – such as in the face of a medical emergency.

While your spouse or a close family member may be a good choice, you should also consider the emotional burden of having to make primary healthcare decisions on your behalf while grief-stricken in relation to your condition. Only you know the best choice for you, but giving careful thought to the delicacy of the situation is advised.

Four: HIPAA Release

HIPAA release, which is also called HIPAA authorization or HIPAA consent, is a legal document that signals your authorization to release protected health information to those you name. While this form does not grant those named the authority to make medical decisions on your behalf, it can work well in unison with your medical power of attorney.

Before the agent named in your medical power of attorney is entitled to information regarding your condition, you generally must be incapacitated, which means they may have to wait. With a HIPAA release in place, however, everyone named is entitled to this critical information.

If the only person named is also your agent, you can rely on them having the information they need to make difficult decisions for you regarding your medical care early on, which can help them make better-informed decisions moving forward.

Five: Living Will

A living will is an advance directive that is also called a directive to physicians, and it outlines the common emergency procedures that you consent to and that you do not consent to – in the event that you are incapacitated and cannot address the matter yourself.

Having a living will in place is especially important for those with firm beliefs, preferences, or values that relate to emergency medical care.

For example, some people refuse blood transfusions based on their religious beliefs, and they implement living wills to help ensure this belief is honored. Additionally, some individuals choose not to be resuscitated in the event they become incapacitated, which is referred to as a do not resuscitate (DNR) order and which can be included in a living will.

Having a living will in place ensures that both of the following apply:

• Your decisions – as they relate to emergency treatment and care – will be upheld. Common examples of the kind of care addressed include mechanical ventilation, resuscitation, and artificial hydration or nutrition.

• Your decisions as they relate to other primary categories of care, including pain management and palliative care, will also be honored.

If you do have strong preferences or beliefs that relate to life-sustaining care, having a well-considered living will in place can afford you considerable peace of mind.

Six: Declaration of Guardianship

Declaration of guardianship is a legal document that allows you to name an individual who will serve as the guardian of your estate or of your person if you become incapacitated at some later date. A declaration of guardianship also allows you to prohibit someone whom you do not want to serve as your guardian from doing so.

By including a declaration of guardianship, you officially state your preference on the matter if it ever arises. The declaration of guardianship goes beyond assigning someone to make decisions on your behalf – the way power of attorney (POA) does. Instead, you nominate someone whom the court is ultimately called upon to appoint.

With a POA, you set the parameters for your agent’s decision-making authority, while the court sets these parameters when guardianship is ordered.

Including a declaration of guardianship in your estate plans helps to ensure that, if the POA you have in effect does not address the full scope of your needs, your choice on the matter will be taken into careful consideration and given priority by the court.

By naming a nominee, you help to establish that they will take over the more comprehensive responsibilities of guardianship if the need ever arises.

Seven: Designation of Burial Agent

You can also assign one or more individuals whom you want to assume authority regarding your final arrangements.

This document allows you to define your wishes in considerable detail, including regarding burial or cremation, where your body or your ashes will be buried, who will receive them, and how they will be addressed if they are not buried.

You can also share your preferences regarding your obituary, your funeral service, and any post-service gatherings.

The Matter of Beneficiary-Based Estate Planning Tools

Those assets that are addressed in beneficiary-based financial tools bypass the probate process, which means they will pass more smoothly to your named beneficiaries when the time comes.

Probate comes with additional costs, is more time-consuming, and can add another layer of stress to an already difficult situation, which makes limiting the assets that are addressed by probate advised.

Common examples of beneficiary-based estate planning tools include life insurance policies, investment accounts, retirement accounts, and trusts. Trusts are legal arrangements in which you – as the grantor – assign another party who serves as the trustee to manage the assets and properties you include in the trust.

In a revocable living trust, you can serve as both the grantor and the trustee until the time of your death – when the trust becomes an irrevocable trust, and the terms you have included will prevail.

Make the Call to an Experienced Temple Estate Planning Lawyer Today

At the Law Office of Brett H. Pritchard, our clients benefit from a dedicated legal team that includes attorneys with extensive experience in Texas probate and estate planning. Brett Pritchard brings decades of legal leadership and trusted client service to every case, ensuring you receive attentive and knowledgeable support.