Many of my clients have heard me declare my belief that everyone eighteen years of age or older in the State of Texas should have a will. I usually follow that up with another statement regarding the need for a living will, durable power of attorney, and a medical power of attorney. These documents are not only useful for people with large estates but they can prove very important for people with very small estates as well. If you die in Texas without a will, then certain statutes under Texas law will dictate how your assets will be divided among your heirs. The statutes also determine who may be appointed as a guardian over your minor children, and it may be somebody you would not have chosen. This month’s article will discuss some of the more persuasive reasons why I feel estate planning is essential to protecting your interests.
Do You Really Need Estate Planning?
Like many people in Texas, there are those who do not have minor children, significant personal or real property, or extended family. This is a scenario in which after speaking with you I tell that you may not actually need a will (although my official advice would still be to draft a very simply will just to cover any property that you may not even know you owned – yes, that happens). However, you and your loved ones would benefit tremendously from estate planning documents such as powers of attorney for medical, financial, and health care. These documents, to which I alluded above, afford you with the peace, security, and comfort of knowing that your interests will be taken care of in the event you become incapacitated and cannot make sound decisions for yourself. A living will makes your wishes know about whether to administer life prolonging medical treatment. Sometimes this is called an advance directive or directive to physician. For example, you may recall that in 2005 Ms. Terri Schiavo’s case was in the national news because her husband and guardian argued that she would not have wanted life support. In fact, Terri had been in a persistent vegetative state since 1990. It was a heartbreaking case of medical ethics and the right freedom of an individual to control and limit medical intervention. A durable power of attorney authorizes your agent to manage and make decisions about your income and assets in the event you become incapacitated. A medical power of attorney allows you to assign an agent to make decisions about your medical care in the event you become incapacitated. Importantly, this also allows you to provide your agent, family members, and healthcare providers with written instructions regarding the type of treatments that should or should not be given.
Okay, So You Need a Will
You may have heard the stories about people writing their wills on napkins or hotel stationary. I have even read a story about a man who, after accidentally rolling his tractor over onto himself, wrote his last will on the fender of the tractor just before dying. Any person eighteen years or older or any married minor or minor in the Armed Forces, and who is of sound mind may make a will in Texas. The basic requirements for a valid will in Texas depend on what kind of will you want to make. A typewritten will must (1) be signed by the person making the will (testator), or signed in the presence of the testator at the testator’s direction; and (2) be witnessed (attested to) by at least two witnesses over the age of 14. Texas law also provides for a holographic will, which is a will that is wholly in the handwriting of the testator and then signed by the testator. This will does not need to be signed in the presence of witnesses. A Texan can also make an oral will but this is only valid for personal property. An oral will is valid if made by the testator in his or her last illness and at his or her home, unless he or she has been take sick away from home and dies before returning home. This type of will may require a certain number of witnesses. As one can imagine, the typewritten will is the best option to avoid challenges to the probate of the will.
Intestacy
Intestacy means that a person has died without leaving a last will. In this scenario, the State controls how your property is divided among your heirs. Some surveys show that up to 70% of Texans die intestate. Even well-known Texas billionaire Howard Hughes dies without leaving a will. Intestacy laws in Texas are extremely complex and require the deceased’s heirs to work within the Court system to administer an estate. Other intestacy considerations are whether the person was married or unmarried, surviving descendants, surviving parents, surviving siblings, and the degree of relationship among the heirs of the deceased.
Everyone who has the privilege of making a will should do so. It can be one of the most important items to leave behind for your heirs, and it can save them a great deal of time and expense. Also, the other estate planning documents should be drafted so that your wishes can be made known to your loved ones and to your doctors. I would encourage you to meet with an estate planning lawyer to discuss your specific details and goals. Moreover, I would be happy to schedule a time to review your situation or previous will to assist you with implementing an estate plan or making a change to your current will.
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