Estate Planning In Texas

You can save a lot of money, potential chaos and hard feelings between those closest to you by preplanning how you want your assets managed when you are now longer able to manage them yourself, and how your property will be divided at your death.

Powers of Attorney

In Texas, you can sign a power of attorney to appoint someone to handle your assets if you become incapacitated. At a minimum, a power of attorney should include the power to:

• Manage and transfer all assets
• Deal with the IRS
• Make gifts on your behalf
• Create and amend any trusts you set up

You don't need to transfer any assets at the time you sign the durable power of attorney, but it's a good idea to keep the person you've chosen informed about your ongoing financial matters.

You can also appoint a Power of Attorney for Health Care to make health care decisions for you when you're unable to do so yourself. This person can provide informed consent for treatment, or even refuse treatment for you.

Dying Without A Will

If you die without a will (known as dying "intestate") in Texas, your assets will be divided amongst your immediate family. If you're married and your children are also your spouse's natural children (or you don't have any children), your spouse will inherit your share of the community property (almost everything you've accumulated as a couple since your marriage).

If any of your children aren't also the natural child of your spouse, your one-half of the community property will pass to your children. But your spouse would be allowed to use and occupy your homestead during his or her lifetime.

If you aren't married, or have separate property (such as property you owned before your marriage or inherited from your family during your marriage), your real estate passes to your children (with a life estate for your spouse). If you have separate personal property such as furniture, cars and strictly financial assets, one-third of those would go to your spouse and two-thirds would go to your children or grandchildren).

If you have separate property, but no children, all of your separate personal property would go to your spouse. In that case, real estate would be divided one-half to your spouse and one-half to your parents or other close relatives such as brothers and sisters.

If you have only children, but no spouse, all property would go to your children or grandchildren.

Alternatives To A Will

Wills eventually become public after your death, with the details of what you owned and how much it was worth available to anyone curious enough to read the court file. So many people look for more private ways to transfer their assets.

In Texas, alternatives to making a will include:

• Life insurance policies or trusts
• Gifting cash or other assets before your death
• "Transfer On Death" ("TOD") or "Payable On Death" ("POD") bank accounts
• Holding assets by joint tenancy with right of survivorship ("JTROS"), with the assets transferring automatically to the other joint tenant at the time of death
• Retirement plans and Individual Retirement Accounts ("IRAs")
• "Revocable living trusts" (sometimes called "grantor trusts"), giving all your assets to a trustee for management before your death

Making A Will

In Texas, you can make an oral will as to your personal property by declaring your wishes orally during an illness at home, or if you are taken sick away from home and die before returning home. If your personal property is worth more than $30, there must be three or more credible witnesses to your statements.

You can also write a handwritten will - called "holographic" - that will be valid as long as:

• It is entirely in your own handwriting
• There are no typewritten additions
• You express your intent to dispose of your property at your death, such as with the words "This is my last will and testament"

A lawyer who does a lot of estate planning can explain the consequences of some of the most basic choices you must make, such as whether property you want to leave to your minor children should be put into a trust at your death. For that reason, it makes sense to consult with a Texas estate planning lawyer and have him or her draft your will, so that you don't make costly mistakes or accidentally not accomplish what you intended.

Providing For Young Children

There are many kinds of trusts, but the most common is one you would set up for your minor children or incapacitated adult relatives for their care after you are gone and until they are old enough or well enough to take care of themselves. A parent can name a trustee to be in control of the finances and decide whether to sell or keep property, and manage assets such as real estate. The trustee, usually a family member or trusted friend, can be paid an hourly rate or a set monthly amount for their services out of the trust assets.

You will probably also want to name a guardian- sometimes called a "conservator"- for your children. This is someone who would have physical custody of and take care of your children on a daily basis should you or your spouse be unable to do so.

Probate

"Probate" is the public process of:

• Filing and validating a will in court
• Paying all the debts and taxes of the deceased person
• Dividing up the assets according to the will or Texas law

If you have no debts and no "titled property" such as real estate or vehicles to pass along to heirs, there may be no need for probate. Texas law also allows for what's called "independent administration" of an estate. After an independent executor or administrator is appointed and an inventory of assets is filed with the court, the executor or administrator takes over without further court involvement.

Texas probate lawyers generally charge by the hour, and make sure everything gets processed according to the law.

Related Web link:

Texas Health Care Power of Attorney and Health Care Directive Forms

Estates, Wills and Probate Message Board for more help