What does a Will do in Texas?
A Will is the most common document that comes to mind when you think of death and estate planning. A Will does not take effect until after a person’s death. After you pass away, the Will is presented to the court and the named person applies to be appointed Independent Executor and to obtain Letters Testamentary. Once appointed the Independent Executor officially acts as the personal representative of the estate. Probating a Will can be a fairly simple process in Texas compared to other states, but it is important to have not only a valid Will but one with the appropriate language allowing for an independent administration or the probate will be much more complex.
When is a trust the better choice?
The most common type of trust is a revocable trust, which is a flexible tool we use for seamless transfer of property on a first death, maintaining the privacy of our clients and avoiding probate. It is the only alternative to a Will based plan (except, of course, you elect to go with the State of Texas plan for your assets). A revocable trust is also a reliable means of owning out-of-state property and avoiding conflict when a family has complicated or unique family dynamics. These trusts are sometimes called a “living trust” or a “loving trust”.
There are many additional types of irrevocable trusts in our “toolbox” that can be created and used as a solution for a variety of issues including asset protection, legacy wealth and estate tax avoidance, deferral or protection. Irrevocable trusts can also be an effective income tax and liability planning device. Special needs trusts can protect the family members who rely on governmental assistance by either keeping or protecting the benefits.
Which documents cover incapacity?
A Will or trust is not the only document you need when preparing your estate plan. In addition to these documents, which are in place to handle affairs upon your passing, our attorneys prepare several other “core” documents that will help facilitate your care and financial affairs should you become incapacitated or need someone to act on your behalf temporarily or permanently. These documents include a financial power of attorney, medical power of attorney, HIPAA authorization, directive to physicians, and declaration to appoint guardians for yourself or for your minor children.
We also feel these are critical documents for anyone over the age of 18, which is the age a child becomes legally recognized as an adult, and a parent loses the right to act on the child’s behalf. We call this a “GAP” set of documents.