Elder Law and Texas Estate Planning
A
well-formed Estate Plan is designed with
several objectives in mind. The primary goal
is to protect the welfare of the principal,
should incapacity arise at a later date.
This usually involves the designation of
another family member to serve as the agent
of the principal, or as his “surrogate
decision maker.” By appointing a third
party to step into the shoes of the
principal, one may avoid the need for a
court-ordered and supervised guardianship
proceeding, in the event of later
incapacity. Typically recommended documents
include a financial power of attorney, a
medical power of attorney and a designation
of guardian. Due to historical abuses,
mistrust and misunderstanding, these
documents do not always work as well as
might be expected.
Texas Living
Trusts
In
most cases, a Living Trust
arrangement will be more readily accepted
than a power of attorney. In the typical
Living Trust, the original Grantor serves as
both the Trustee and the primary beneficiary
of the Trust. All of the trust assets remain
at the Grantor’s disposal and the Trust,
itself, is revocable, during the Grantor’s
lifetime. The successor Trustee takes over
the management of the Trust, upon the death
of the Grantor, or in the event of the
Grantor’s incapacity, prior to death. In
this way, a Living Trust functions not only
as an alternative to Guardianship, but also
as a means of avoiding the probate of a
Decedent’s Estate. To be effective for these
purposes, a Living Trust must be fully
funded during the lifetime of the Grantor.
Living Trusts are not essential components
for every estate plan; however, they are
frequently used in particular situations. A
Living Trust is an excellent option when a
long period of incapacity is anticipated
prior to death (i.e. an Alzheimer’s
patient), or when the Grantor owns realty in
several states (as a means of avoiding
estate administration in multiple venues.
Texas Wills
A
Will is an essential element of every
Estate Plan, even with the
establishment of a Living Trust. A properly
drafted Texas Will usually names an
Independent Executor, with authority to wind
up the Decedent’s affairs, without the
requirement of court supervision or a bond.
Of course, the Will should contain
provisions designed to effectively dispose
of all of the Decedent’s property, upon
death and a “self-proving” affidavit should
also be attached. The lack of an effective
Will may cause catastrophic consequences,
particularly when dealing with situations
involving children and multiple marriages.
Texas law affords ample protection to both
spouse and child when the Decedent dies
intestate (without a Will), but the
adjudication of these rights often spawns
hostile and divisive confrontation among
family members and serious legal bills for
all concerned. A simple and relatively
inexpensive Will may preserve family
harmony.
A
qualified attorney should always be
consulted when preparing and implementing an
Estate Plan. Do-it-yourself kits or homemade
devices frequently cause more problems than
are solved. These documents are likely to be
generic in form and not “Texas-specific.”
By the same token, a Will drafted by an
out-of-state attorney may also lead to
problems. The Texas statutes contain
specific forms and provisions that should be
incorporated into your estate planning
documents. Forms that do not contain these
provisions may not be well received. An
attorney should assist you in developing a
customized plan that fits your needs.
Located in
Weatherford Texas probate attorney
Gary F. Westenhover is board certified in
probate law and estate planning. This firm maintains
an active probate litigation practice
throughout North Texas, particularly in the
following cities and counties:
-
Weatherford (Parker County)
-
Mineral Wells (Palo Pinto County)
-
Jacksboro (Jack County)
-
Cleburne (Johnson County)
-
Fort Worth (Tarrant County)
-
Decatur (Wise County)
-
Graham (Young County)
-
Stephenville (Erath County)
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