There comes a time in every person’s life in which we pass away, sometimes leaving family and loved ones with no direction for how to distribute all of the assets and treasures we leave behind. Texas has statutory provisions for determining the distribution of your assets, if you do not leave behind any instructions such as a Will, meaning you have died “intestate.” The State’s distribution plan may or may not be according to your wishes. Therefore, one of the most simplistic ways to avoid the Texas plan of Asset Distribution is by creating and executing a Last Will and Testament (“Will”).
A Will provides an instruction manual to the court as to how you would like to have your belongings distributed, to whom they should go and in what amount or percentage. A will also designates who will carry out your wishes, also known as the Executor/Executrix. Everyone should have the right to determine who receives your keepsakes and other possessions, instead of the court. A Will can also specify who will take care of your minor children by appointing a guardian for the children, which avoids the possibility of your minor children living in an orphanage or in foster care as a ward of the State of Texas – even for a temporary period.
Those of us who have witnessed our loved ones in critical health conditions understand the guilt and conflict associated with either maintenance on life support or “pulling the plug.” With a Health Care Directive, your loved ones won’t have the pangs of guilt for removing you from life support, because you have already made that decision for yourself—you’re asking that your loved ones merely carry out your wishes. A Health Care Directive is not a legally binding document, but it does provide health-care professionals (and your loved ones) with instructions on how YOU would like your end-of-life treatment and care once you can no longer physically communicate those interests. This document should be kept by those loved ones you trust to make end-of-life decisions on your behalf should you become incapacitated, as well as your physician.
Alongside the Health Care Directive, you should have another document granting Permission to Access Personal Medical Information by granting your trusted loved ones with “permission” to access personal medical information. This document allows your loved ones to view your medical records and discuss your situation and care with your medical providers in order to determine the best course of action for your care.
Granting the Power of Attorney (“POA”) acts as another critical step in estate planning. The POA allows your designated agent the legal authority to make important financial and business decisions, as well as other matters, in your place. The specific powers you would like to have granted to your agent will be decided by you in the Power of Attorney document.
Trusts are widely customizable instruments for holding your property through the establishment of a Will or as a standalone entity known as a “Revocable Living Trust.” Trusts, in general, are legal entities with three parties: Creator, Manager (Trustee), and Beneficiaries. With most Revocable Living Trusts, you initially wear all three hats. Trusts are advantageous as an avenue to avoid probate through the courts, as well as to veil the privacy of your assets from the public’s eye. Depending on the language, a Trust may also act as a valuable form of asset protection from your creditors.