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Wills/Trusts

THE IMPORTANCE OF A WILL

A Will is necessary if you intend to leave property to someone who is not your blood relative, e.g., a domestic partner, a friend or a charity. It is also extremely important if you have children who are not also your spouse's children.

What happens if you die without a Will

The Texas Estates Code provides default rules for the distribution of deceased persons' property for those who die without a valid Will ("intestate"). There can be significant problems when you let the legislature decide how your estate will be distributed by not providing for it yourself through a Will.  A few of the more typical problems are described below.

Separate Real Property and the Surviving Spouse - In cases where the Decedent leaves behind a surviving spouse and an estate that includes separate real property, the surviving spouse is often shocked to learn that he or she does not inherit the separate property, even if the surviving spouse made payments on it. In fact, in cases where the Decedent leaves descendants who are not also children of the surviving spouse, the surviving spouse inherits only a "life estate" in the separate real property. This means that the surviving spouse can live on the property for the remainder of his or her own life, but cannot sell or mortgage the property without the cooperation of the descendants. If those descendants are minors, they may not be able to give legal consent.

Minors or incapacitated persons as heirs of the Estate - Many courts will require that a guardianship be established in order to receive that portion of the estate that is passed to heirs who are incapacitated or who are minors. Furthermore, many Courts will not allow an independent administration in cases where incapacitated persons or minors are heirs of the estate. Thus, in cases where the Decedent leaves behind descendants who are incapacitated or who are minors, significant court involvement in the estate may be required. Significant court involvement usually means significant attorney fees.

Community Property and Children from a Previous Relationship - In cases where the Decedent leaves behind descendants who are not also children of the surviving spouse, the Decedent's 1/2 share of the community property estate passes to the Decedent's children, not the spouse. Thus, the surviving spouse will now share the community property estate with the Decedent's children. This means that the surviving spouse cannot sell or mortgage the community property without the cooperation of the other heirs to the property.

DUCKWORTH & RAY, L.L.P. WILL PACKET ($750 for single, $1,250.00 for couple)

A Will Packet consists of a Simple Will, a Financial Power of Attorney, a Medical Power of Attorney, a Declaration of Guardianship, and a Directive to Physicians.

Simple Will

A Will that leaves the person's entire estate to another person (i.e. their spouse) or to several people (i.e. their children) equally, without a trust. In other words, wording such as “to my spouse or if my spouse fails to survive me to my children, equally” is a Simple Will.

Financial Power of Attorney

Although you can make it effective immediately, it generally takes effect if you become incapacitated. It is a plan for management of your financial affairs whereby you designate the person you would like to act as your agent in financial matters. This person would be able to manage your accounts and pay your bills. 

Medical Power of Attorney

Although you can make it effective immediately, it generally takes effect if you become incapacitated. This is the document wherein you nominate another person to make medical decisions on your behalf when/if you are no longer able to do so. The named person will work with your physician to decide on the best course of treatment. This document also contains a HIPAA release so that the medical providers have your permission to speak with your appointed person regarding your medical condition.

Directive to Physicians

A medical power of attorney does not contain the necessary language for end of life treatment. The Directive to Physicians allows you to leave instructions regarding treatment in the event of a terminal or irreversible condition. 

Declaration of Guardian

This takes effect if you become incapacitated. This is the document whereby you designate a person who you would like to be appointed as the guardian of your person and/or estate should you ever become incapacitated. This document works hand in hand with the Medical Power of Attorney, but serves a different purpose. One way to think of it is that the Medical Power of Attorney gives the authority to decide your treatment wherever you are. The Guardian decides where you are.

Sometimes, people struggle with choosing among children regarding these powers. The question often arises about nominating co-executors, guardians, and powers of attorney recipients. DON'T DO IT. The better answer is to divvy up who has the powers and name alternates. Just be thoughtful about your choices. Do not give Guardianship to someone who lives hours away from you. Do not give Medical Power of Attorney to someone who can't make good decisions under pressure. Do not give Financial Power of Attorney to the child who is less responsible.

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Duckworth & Ray is committed to answering your questions about law issues in Conroe, TX. We'll gladly discuss your case with you at your convenience. Contact us today to schedule an appointment.

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