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Estate planning is for everyone, not just the elderly or those entering into retirement. If you have a car, a home, checking or savings accounts, life insurance, furniture, and other personal possessions, you have an estate. The size of your estate is irrelevant when it comes to planning for how you want your assets divvied up after your death. We know that it is difficult to think about preparing for the end of your life. However, to ensure your personal belongings are given to the people or organizations you care for most, you need to provide instructions. Consulting with the caring and experienced Texas Estate Planning Attorneys at The Carlson Law Firm to discuss the handling of yours or a family member’s estate can give reassurance that your family will be taken care of.
No matter if you’re planning or dealing with the loss of a loved one and in need of a probate attorney, The Carlson Law Firm’s team of experienced estate planning attorneys can help your matter run smoothly. We are ready to answer your questions related to several areas concerning estate planning.
Our firm’s Texas estate planning attorneys handle the following:
- Last Will and Testament
- Power of Attorney
- Advance Medical Directives/ Living Wills
- Designation of Guardianship
- Beneficiary Designations
What is Estate Planning?
Estate planning involves making a plan in advance and naming who you want to receive your possessions after you pass. This is a simple explanation and only covers your belongings. But a qualified estate planning attorney will ensure that your documents contain much more information. Proper estate planning should also include the following:
- Designates an executor.
- Names a guardian for minor children.
- Names an inheritance manage for minor children.
- Provides for your dependents.
- Designates a caretaker for pets.
- Specifies alternative beneficiaries should initial beneficiaries not survive.
- Specifications for how debts, expenses and taxes should be paid.
- Instructions for ensuring your values are honored.
- Instructions for your care should you become disabled before you die.
- Directions for allocating business assets.
- Instructions for the care of family members with special needs without disrupting government benefits.
- Provides and set limits for financially irresponsible loved ones.
- Provides for loved ones who may need future protection from creditors or divorce.
- Life insurance to provide for your family after death.
- Disability income insurance to replace income if an illness or injury prevents you from working.
- Long-term insurance to help pay for your care in the event of extended illness or injury.
- Minimize taxes, court costs and unnecessary legal fees.
Further, estate planning is an ongoing process. It should not be a one-time event. Your plan should be reviewed and updated as your family, financial situation and laws change over your lifetime. The best time to begin your estate planning is when you are of sound mind and healthy. To ensure your wishes are carried out the way you want, you need a qualified Texas Estate Planning Attorney on your side.
Is probate a part of estate planning?
Probate is one of the final steps in the estate planning process. Once a person passes, their family members will need to probate a will through their county courts. During the process, the court will identify the rightful heirs of a will. The process can take as little as 4-6 months to as much as four years.
What is a Will?
A will—also called a last will and testament—is a simple document that states your final wishes. At its core, a will provides a plan for who will raise your children, who manages money left to minor children, as well as who gets your property after your passing. Without a will, state law determines who gets your property, and a judge will decide who will raise your children.
Wills are what most people think of when they think of estate planning. And that’s for a good reason. Writing a will is the single most important thing you can do when it comes to estate planning. Wills ensure that your wishes are carried out the way you want after you pass. There is no such thing as having modest finances or being too young to write a will.
A valid will has to meet certain standards. For starters, the person making the will, or the testator, must be at least 18 years old and of sound mind. Also, the testator will to appoint an executor, provide for the distribution of property after death, and sign and date the document in the presence of witnesses. As long as these standards are met, a testator has the option of drafting several different types of wills.
Simple wills are best when the finances of the testator are uncomplicated. While many testators write simple wills themselves, the assistance of an estate planning attorney can prevent mistakes that might prevent their wishes from being carried out. Simple wills should be printed instead of handwritten. In addition, these should include the following:
- The testator’s name, address and marital status
- Statements indicating how assets should be distributed between beneficiaries
- A section that appoints an executor
- A section that appoints a guardian for minor children if the other parent is deceased
- Spaces for the testator and witnesses to print and sign (The number of witnesses depends on your state)
- Date the will was signed by all parties
Testamentary Trust Wills
A testamentary trust will put at least some of your property into a trust. A trust distributes assets to a beneficiary but is administered by a third person who controls how and when the property is given to the trust beneficiary. These wills are used when a testator is leaving trust assets to a financially irresponsible beneficiary. The trust administrator distributes trust assets gradually rather than in one lump sum.
Testamentary trust wills must include the same information as a simple will.
A joint will is created when two testators leave their property each other. Basically, the testator who dies first gets everything. Further, joint wills specify how the estate will be distributed when the second testator dies. These wills cannot be changed or revoked without the consent of testators. In other words, a joint will is irrevocable when one of the testators dies.
These will can be similar in format to that of a simple will.
State laws for the execution of each type of will vary and should be checked thoroughly. This is why it is so important to seek assistance from a qualified Texas Estate Planning Attorney from The Carlson Law Firm. Our firm’s expert estate planning attorneys can help you determine which type of will is best for you.
Benefits of a will
When you pass, you no longer have a say in how your property is handled. But when done right, even those most basic will is a legally binding document that:
- Leaves your property with the people and organizations you choose.
- Names a guardian for your minor children.
- Names someone to manage property left to minor children.
- Designates an executor.
What is an executor?
An executor is a personal representative named in a will. This person is in charge of handling how property is distributed. The executor is in charge of collecting property, as well as paying any debts and taxes of the deceased. Whatever is left after debts are paid, the executor will distribute among heirs and beneficiaries. Also, the executor handles any probate court proceedings and notifies interested parties of the death.
Establishing a Trust
A trust is another popular aspect of estate planning. However, many people generally associate trusts with the super wealthy. But trusts are actually much more than just money in an account. Trusts primarily help individuals maintain greater control over their assets. They are generally the best way to ensure your wishes are carried out after you die. Because wills must go through a process called probate, many people are opting to establish trusts.
A trust provides more control over how funds are passed to heirs in ways that a will doesn’t. For example, a trust keeps assets from creditors during bankruptcies and lawsuits. Trusts are made up of three parts:
- Trustor. The person who creates the agreement to grant the trustee control over their assets, estate, or property.
- Trustee. This is the party that the trustor appoints to be responsible for managing the property or assets in the trust.
- Beneficiary. The person or people who receive the assets of the trust in accordance with the terms of the trust agreement.
Trusts can be used both during life and after death. There are many types of living trusts. A Texas estate planning attorney can help you determine which living trust best fits your needs.
A living trust is a written legal document that places your assets into a trust during your lifetime. You still have access to these assets while you’re alive. But trust assets will be transferred to designated beneficiaries at your death. A chosen representative called a successor trustee will distribute the trust. While living trusts cost more upfront than wills, a living trust saves your beneficiaries the expense and delay of probate.
Also called a will trust, testamentary trusts are agreements where a beneficiary receives assets once the trustor has passed. These trusts will detail how assets must be administered after the trustor’s death. Testamentary trusts cannot be changed or altered.
A revocable trust is a trust that can be changed, terminated or otherwise altered during trustor’s lifetime. These trusts are often set up to transfer assets outside of probate. In many of these cases, all three parts of arrangements (trustor, trustee and beneficiary) are often the same person who can manage their own assets. However, control of the trust will be given to a successor trustee and other beneficiaries upon the original trustor’s death.
An irrevocable trust is one that a grantor cannot change or alter during his or her lifetime. In addition, an irrevocable trust cannot be revoked after the trustor has died. Because irrevocable trusts cannot be moved back into the possession of a trustor, they are often more tax efficient. Irrevocable trusts often carry little to no estate taxes at all. For this reason, they are the most popular types of trusts. They transfer assets completely out of the trustor’s name and into the beneficiary’s name.
Funded or Unfunded Trusts
Funded or unfunded trust agreements that either have funds (assets) put into them or do not. These trust can become funded at any point. Funding can occur either during life or after the death of the trustor.
An insurance trust is a type of trust allows a trustor to combine their life insurance policy into their trust. This effectively shields insurance payouts from taxes.
There are several other types of trusts, but each must follow the same basic structure with three parties. A Texas estate planning attorney can help you identify which trust is suitable for your situation.
What is a Power of Attorney?
A power of attorney is a document that appoints a person or organization to manage your affairs should you become unable to do so. Selecting a power of attorney is another situation where it doesn’t matter how healthy you are, it always a good idea to appoint someone the authority to make decisions on your behalf should you become unable to do so. But, like most things in law, there are different types of power of attorneys, and each one does something different than the other.
General Power of Attorney
A general power of attorney gives broad powers to a person or organization, known as an agent or attorney-in-fact, to act on your behalf. These power include handling:
- Financial and business transactions
- Buying life insurance
- Settling claims
- Operating business interests
- Making gifts
- Employing professional help
A general power of attorney is most effective if you will be out of the country or need someone to handle certain matters. In addition, a general power of attorney is especially helpful if you are physically or mentally incapable of managing your affairs. A POA is a crucial part of an estate plan to make sure someone can handle financial matters.
Health Care Power of Attorney
A healthcare power of attorney grants your agent the right to make a medical decision for you if you are unconscious, mentally incompetent or otherwise unable to make your own decisions.
*If you become mentally incapacitated because of an illness or accident while you have a power of attorney in effect, you may be unsure if the document will remain valid. To safeguard against any issues, you can sign a durable power of attorney. A durable power of attorney is essentially health care power of attorney with a durability provision that keeps the current power of attorney in effects.
Special Power of Attorney
A special power of attorney specifies exactly what powers your agent can exercise. This is often used when a person is unable to handle certain affairs because of other commitments or health reasons. Common matters a special power of attorney may have control over include the following:
- Selling personal and real property
- Managing real estate
- Collecting debts
- Handling business transactions
Because of the amount control a power of attorney has over your affairs, it is vital that you select a trusted friend, relative or attorney to look out for your best interests. In addition, a trusted party will respect your wishes and will not abuse the powers granted to them. If you are interested in establishing a power of attorney, contact The Carlson Law Firm. We offer free consultations with a qualified Texas estate planning attorney. Our attorneys are prepared to answer any question you have about establishing any power of attorney.
Advance Medical Directives
An advance medical directive is a broad category of legal instructions for your healthcare should you become incapacitated. A durable power of attorney, living wills, do not resuscitate (DNR) orders and organ donations fall into this category. A free consultation with a qualified Texas estate planning attorney can help you decide the best medical directive for you.
Living wills do not distribute property after the death of a testator. Instead, living wills give instructions to the type of medical treatment you wish to receive if you become too ill to communicate. These types of wills decline medical treatment that only serves to postpone the moment of death. For example, a person can deny a feeding tube should they become brain dead, or other life-saving measures if they are terminally ill and death is imminent. Living wills specifically deal with deathbed issues.
Generally, living wills do not take effect until a patient meets certain conditions, such as a terminal injury or illness. However, when living wills take effect or if they are permitted depends on your state. A Texas Estate Planning Attorney can help you determine how Texas laws will affect your living will.
Durable Power of Attorney for Health Care
A durable power of attorney for health care is a document that designates a person or representative to make medical decisions for you. The document gives the representatives instructions about the kind go medical treatment you want. While living wills are limited to only deathbed concerns, durable power of attorney for healthcare covers all health care decisions. The document only lasts as long as you are incapable of making decisions for yourself. If you do not have a living will, your durable power of attorney for health care document can also include information on how you wish for them to act should death become a concern.
Do Not Resuscitate (DNR) Order
A qualified doctor writes a do not resuscitate order. The document instructs medical personnel not to perform CPR if you go into cardiac arrest or stop breathing. In the best situation, patients discuss creating these documents with their doctor before an emergency. There are two types of DNRs. The first is effective only while you are in the hospital and the other is in effect when you are outside of the hospital.
In addition to speaking with the patient, the doctor may also write a DNR after consulting with the durable power of attorney for health care or the patient’s family. Do not resuscitate orders are specific to CPR. These are typically part of a hospice care plan. The goal of hospice is not to prolong life, but to treat symptoms and maintain comfort.
Organ Donation Form
Most states allow you to decide whether or not you want to donate your organs upon your death. In Texas, for example, you can make this decision at the DMV and have your donor status on your driver’s license.
While each state provides advance medical directive forms, the expert advice from a Texas estate planning attorney can help you determine the medical directive that is right for you. The Carlson Law Firm’s living will attorneys can assure that all of your wishes are met should the need arise. Contact us today to schedule a free consultation.
What Is Probate?
Probate is the legal process that wraps up the estate of a deceased person. It is the procedure that allows assets to legally pass from the deceased to his or her heirs or beneficiaries. The process involves:
- The collection, inventory and appraisal of assets
- Handling of will contests and estate disputes
- Filing and payment of estate taxes, payment and collection of debts
- The distribution of remaining estate assets to rightful beneficiaries
Types Of Probate Proceedings
In Texas, there are three types of probate proceedings.
- Dependent Administration: This form of probate has a very high level of court supervision. That means the administrator needs the court’s permission to enter into almost any transaction, from paying the estate’s debts to selling a property.
- Independent Administration: This is the most common type of probate administration in Texas. Compared to dependent administration, this process is much less expensive because the administrator does not need to go to court very often, nor does he or she usually have to post a bond.
- Muniment of Title: This method of probate is unique to Texas. There is no appointment of an executor or administrator to distribute property. Rather, once the court certifies that the will is truly the last will of the deceased person, the court’s order itself transfers title to the intended beneficiaries.
Probating a will is another element in ensuring your loved one’s wishes are met. Without probating a will, state laws will go into effect and trump your loved one’s wishes. Contact a Carlson Law Firm Texas estate planning attorney to schedule a free consultation. Our compassionate team can guide you seamlessly through the probate process while you’re dealing with your loss.
How The Carlson Law Firm Estate Planning Attorneys Can Help
We have a team of experienced, dedicated Texas Estate Planning Attorneys and legal assistants who have nothing but your best interests in mind. They know the importance of estate planning and understand the difficult process of probating a will after a loved one passes.
Contact us today for a free case evaluation, or to schedule an appointment with a Texas Estate Planning Attorney.