In this blog, we will discuss the What, Why, Can I Do This Myself? and the How Much Does it Cost? of Texas Estate Planning.
We will address the following estate planning instruments:
- Last Will and Testament
- Durable Power of Attorney
- Medical Power of Attorney
- Living Will (Directive to Physicians and Family or Surrogates)
- Declaration of Guardian
- Declaration of Guardian for Minor Children
- HIPPA Authorization
- Transfer on Death Deed (T.O.D.D.)
- The Texas Probate Process
1. Last Will and Testament
What is a Last Will and Testament?
A will is a legal instrument that dictates how the testator’s property is to be distributed upon their death. A testator is a person who creates the will.
Why do I need a Last Will and Testament?
Everyone should have a will. In the absence of a valid will, your property will be distributed entirely according to Texas law and not necessarily according to your wishes.
In addition, the disposition of your estate could cost you and your family more time and money without a proper will. The Texas Probate process, while friendlier than some other states, has rules and procedures that must be followed in order to fully distribute the estate. You can read more about the Texas Probate process below.
Can I can create a Last Will and Testament myself?
The short answer is yes, you can create and execute a will yourself.
However, if any of the formalities required by Texas law are not present or properly executed, your will could be invalid. Allow the experienced Texas Wills Lawyers at Joyner + Joyner to properly draft and execute your will, providing you with the ‘peace of mind’ that your loved ones will be provided for upon your death.
How much does it cost?
- Individual Wills – starting at $399
- Couples Wills – starting at $699
2. Durable Power of Attorney
What is a Durable Power of Attorney?
A power of attorney (“POA”) is a legal document by which you, the principal, appoint an agent and confer upon that agent the authority to perform certain specified acts on your behalf. Durable means that the POA does not expire if you become incapacitated, rather a Durable Power of Attorney lasts a lifetime or until it is revoked.
In Texas, a Durable Power of Attorney must [Tex. Prob. Code §482]:
- be in writing;
- signed by an adult principal;
- designate another person as attorney in fact or agent;
- explicitly state whether the agent’s authority continues after the principal becomes disabled, or becomes effective when the principal becomes disabled or incapacitated; and
- be acknowledged by the principal.
Why do I need a Durable Power of Attorney?
A Durable Power of Attorney allows you to appoint someone you trust to engage in business, financial, and legal transactions on your behalf. By signing a Durable Power of Attorney, you will have complete control in determining who will handle your affairs.
In addition, when you have not executed a valid POA, some other potential agent can petition the court to be named your guardian or conservator should you become incapacitated. Not only are guardianship and conservatorship proceedings much more expensive and time-consuming as compared to establishing a POA, but you also risk the appointment of someone you might not prefer to handle your personal affairs.
Can I create a Durable Power of Attorney myself?
Yes, you can create a Durable Power of Attorney yourself.
However, if any requirements are unfulfilled, the Power of Attorney will be ineffective and will not allow the person of your choice to conduct your affairs on your behalf. And, as mentioned, the potential also exists that a court could appoint a guardian or conservator who you may not prefer, or would not have chosen, should you become incapacitated.
How much does a Durable Power of Attorney cost?*
- Our Durable Power of Attorney starts at $99.00.
3. Medical Power of Attorney
What is a Medical Power of Attorney?
A Medical Power of Attorney (“MPOA”) is a document created and signed by a competent adult granting an agent the authority to make health care and medical decisions in the event that a doctor certifies that the principal (the person granting the power) is no longer able to make the decisions themselves.
In Texas, for a Medical Power of Attorney to be valid:
- The principal, before executing the MPOA, must sign a statement that he/she has received, read, and understood the statutory disclosure statement [Health and Safety C § 166.162];
- The principal must sign the MPOA, or, if the principal cannot physically sign the document, he/she can direct another to sign it in his/her presence [Health and Safety C § 166.154(c)];
- The principal must be an adult [Health and Safety C § 166.151(c)]; and
- The MPOA must be either: (i) acknowledged before a notary public, or (ii) signed by two adult witnesses who were present when the principal signed the MPOA [Health and Safety C §§ 166.154(a)-(b); 166.003(1).]
Why do I need a Medical Power of Attorney?
A MPOA allows you to make your own medical and health care decisions even when you are incapacitated or unable to communicate. However, in order to do so you must communicate your wishes in advance by executing an MPOA.
Can I create a Medical Power of Attorney by myself?
Yes, you can create the MPOA yourself.
Although, like most other legal documents, you must comply will all the formalities required by Texas law in order for the MPOA to be valid. The other wrinkle associated with the MPOA is that the use of the statutory form is mandatory. So, while it is possible to create an MPOA yourself, you run the risk of creating an ineffective directive rendering your predetermined healthcare and medical decisions worthless.
How much does it cost?*
- Our Medical Power of Attorney starts at $99.00.
4. Living Will (Directive to Physicians and Family or Surrogates)
Typically included in our Wills package, a Living Will or Directive to Physicians and Family or Surrogates provides direction for a physician to do any of the following in the event a patient has an irreversible or terminal condition [Health and Safety Code § 166.03(1) & (2)]:
- administer life-sustaining treatment;
- withhold life-sustaining treatment; or
- withdraw life-sustaining treatment.
5. Declaration of Guardian
A Declaration of Guardian allows a person, with capacity, to designate a certain individual to serve as guardian of their person and/or guardian of their estate should they become incapacitated. [Texas Estates Code § 1104.202(a).]
In addition, a Declaration of Guardian can be used disqualify certain persons from serving as guardian of your person or guardian of your estate. By specifically disqualifying persons, the person(s) named will never be appointed guardian under any circumstances. [Texas Estates Code § 1104.202(b).]
6. Declaration of Guardian for Minor Children
A Declaration of Guardian for Minor Children allows a parent to designate a guardian for their minor children.
This designation can be done as a separate document or can be included in the declarant’s will.
The benefit of executing the Declaration of Guardian for Minor Children as a separate document is that it can take effect upon incapacity of the parent. Whereas, a Declaration as part of a valid will only becomes effective upon the death of the parent.
7. HIPAA Authorization
The Health Insurance Portability and Accountability Act (HIPAA) is a federal law that restricts the disclosure of your protected health care information by healthcare providers and insurance companies.
A HIPAA Authorization gives healthcare providers and insurance companies permission, or authorization, to share your protected health information with a trusted individual of your choosing.
8. Transfer on Death Deed (T.O.D.D.)
A T.O.D.D. allows you to transfer your real property (e.g. your house) to a designated beneficiary outside of the probate process. This means that your designated beneficiary will not need to hire an attorney to initiate a legal proceeding to affect a transfer of the property. A T.O.D.D. also supersedes any contrary provision contained in a person’s will.
Using a T.O.D.D. to transfer your real property, not only expedites the transfer of, potentially, your largest asset, but it also alleviates some of the expense and hassle associated with the probate process.
Similarly, Texas law also provides a “transfer on death” option for automobiles outside of the probate process.
9. The Texas Probate Process
The Texas Probate process refers to the process by which Texas courts recognize someone’s death and authorize the distribution/administration of their estate. In Texas, a will may be admitted to probate no later than 4 years from the date of the testator’s death.
If you die without a will, you are said to have died intestate. What this means is that your estate will be distributed according to the Texas Intestacy Laws, often resulting in a distribution you would not have chosen had you died with a valid will. Dying intestate can put a strain on your loved ones as they must rely on the court’s procedures and findings while awaiting the distribution of your estate.
*All pricing may vary depending on the size of your estate and the complexity involved in drafting the requested document(s).