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Dallas Estate Planning Law Blog

The need for a living will was shown in Joan Rivers' death

Due to medical advances and active lifestyles, many Texas residents look forward to living to a ripe old age.  Even so, unexpected events can occur that can change everything. Without a living will, family members may never know what their loved one would have wanted when it comes to making end-of-life decisions.  With the recent death of Joan Rivers, many people may be rethinking their estate plans.

Rivers was 81 years old and seemed to be in good health and full of life.  However, during what should have been a minor procedure, she had a massive coronary event that resulted in her being placed on life support.  Reportedly, Rivers did not want her life prolonged by machines.  Therefore, Rivers' daughter took her off life support in accordance with her mother's wishes. 

Estate planning usually means much more than just a will

In Texas and anywhere else, elderly family members sometimes die without leaving all of the pertinent information to guide their heirs in processing matters as they would have wished. There are matters, such as papers relating to the right to a military burial, that may be never passed on to assure that such a burial occurs. One woman's right to have her remains cremated and scattered at sea was never confirmed prior to death. Special circumstances like these must be incorporated into estate planning documentation and discussed with family members during the loved one's life.

Perhaps the most important document at the center of the estate planning process is the will. According to one elder law attorney associated with AARP, a will can sometimes be the main document in an estate planning inventory, and living trusts may not be necessary. She gives that conclusion in opposition to some common wisdom that says it's best to avoid the after-death probate process by administering the assets during life through living trusts.

Add elder law care needs to the estate planning equation

When planning to help out one’s family members, a person may be so generous as to ignore some basic needs of his or her own. However, one should not be so generous in gifting to one’s children and grandchildren that it depletes what the person needs to survive in the future. Thus, the estate planning process in Texas or elsewhere should not ignore the elder law planning needs that must be incorporated into any strong and effective plan.

Although a grandparent naturally wants in particular to help his or her grandchildren to have all the opportunities and benefits of a good life, large or lavish gifting can interfere with basic elder law concerns. The first concern, then, is to set up the basics of long-term care planning for the individual prior to deciding what gifts to give to one’s grandchildren or other family. The huge expenses involved in long-term care in assisted living quarters or in a nursing home should not be ignored.

Estate planning should prepare for long-term care possibilities

One danger not fully appreciated or planned for by seniors in Texas and elsewhere is the financial ravages that can occur if the individual becomes permanently disabled and in need of long-term care and nursing home care. People may think that their Medicare covers long-term care, but it doesn’t. Most people have not prepared by purchasing private long-term care insurance, nor have they engaged in estate planning with an elder law attorney to establish protections for those eventualities.

The U.S. Department of Health predicts that 70 percent of the population over 65 will need some type of long-term care, and more than 40 percent will need nursing home placement. An elder law attorney can explain how Medicaid and other government programs can be used to solve the problem. At the same time, the elder law professional will assist in setting up legal protections for assets and income.

Developing a will helps surviving family members

When it comes to talking about creating a will, many people in Texas may shy away from the subject and prefer to talk about more lighthearted topics. Putting together a will, however, is essential for making sure that one’s earthly possessions are passed on to the right individuals when one dies. It also helps to prevent discord among surviving family members -- discord that can alter family relationships permanently.

Research shows that more than half of people don’t have a will. In addition to directing family and friends on how to distribute one’s personal items in the event of one’s death, it can also provide hope and encouragement. It is also wise to create a health care power of attorney, a document that spells out who can make health care decisions on a person’s behalf if the person can’t communicate on his or her own.

Estate planning is important for both small and large estates

Estate planning in Texas is an essential tool to distribute your estate, no matter how large or small, in the way that you want and to the people that you choose. Complications can arise if one does not put estate planning into place. For example, bickering among relatives may occur after death where there is nothing to guide them as to your intentions.

Lack of planning can also cause added frustration during difficult times. In one’s last illness, for example, without the proper living will and healthcare directive drawn up, your people will not have the authority to assist or direct the physicians regarding medical determinations. With the living will, one can tell the medical providers what to do regarding artificial means of life extension.

After moving, one should review estate planning documents

When moving from one state to another, it’s wise to have estate planning documents checked for compliance with the new state’s laws. Although most of those estate planning documents should remain effective in a move, it’s nonetheless prudent to have everything reviewed in the context of the procedures and laws in the new state. The old saying, “When in Rome do as the Romans do,” may actually make some sense in this situation. Therefore, if the move is to Texas, it’s recommended to find out how it’s done here.

For example, the format and legal references in many documents, such as a living will, are usually written and phrased according to each state’s preferences and laws. Although this will probably not affect the legality of one’s living will from another state, it may cause confusion and result in a waste of time at some inauspicious future time. Furthermore, there are different legal requirements from state to state for such documents.

Personal representative must access decedent's digital assets

In Texas and all other states, the extensive use of online services by the average person has led to a need for the estate of a deceased person to be able to access that person’s online digital assets. That need has given birth to organizations concerned with addressing the issue. Just recently, a lawyers’ commission completed and introduced the Uniform Fiduciary Access to Digital Assets Act. When a person dies and probate is forthcoming, the passage of this or similar legislation will provide a framework to guide the estate’s personal representative with respect to the decedent’s digital assets.

When a person dies, if there is a will, it is presented to the appropriate court for probate. A personal representative, appointed in the will, acts on behalf of the decedent to collect all assets, pay all bills, and make final distributions to the specified beneficiaries named in the will. If there is no will, things go a bit differently and they must follow what is called the intestate laws. These laws basically take the choices out of the decedent’s prerogative and give instead a statutory framework for asset distribution.

In estate planning, legal directives execute the maker's wishes

Because an estate plan in Texas and elsewhere consists of a variety of “legal instruments” that must pass muster under state law, it’s best to give up any thoughts of doing them yourself. Consider working with professionals to get your estate planning done as a classic ‘team effort’ geared toward accuracy and legal compliance. It’s true that estate planning also seeks to maximize the value of the estate’s assets, and to minimize tax drains, and these efforts are included in the process.

The power of attorney is usually an indispensable tool in the arsenal of estate planning documents. This is a document in which a person, the principal, confers a certain authority in a second person, an agent, for the agent to sign the principal’s name and to do basic acts of business and conduct affairs on behalf of the principal. The power of attorney can authorize a wide range of actions, and it should be drawn up to carefully designate which powers are being conferred.

Estate planning allows targeted action regarding children

One important benefit of estate planning in Texas concerns the treatment of minor children. By proper estate planning, people can say who will take care of their children if the need should arise, and they can also appoint a trustee for the money and assets left for the children. If this is not done prior to death by will or even in life through living trusts, the court may appoint a guardian to exercise custody over minor children and a guardian or conservator to take control of the children’s money.

If a person does not provide for the desired appointments to take care of the children’s needs, going through court proceedings to have persons appointed can be long and expensive, especially if disputes or conflicts arise. Indeed, the court does not always appoint someone whom the disabled person, the decedent or the family would approve. A court appointee is often a stranger who has no background in understanding the decedent’s life or circumstances. A court appointee does not always turn out to be an entirely helpful influence in the process.

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Austin, TX 78734
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Addison, TX 75001
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