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.
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: