Q:

What is a Will?

A:

A will is a legal document which may be accepted by a court with probate power and normally states how property is to be distributed after a person’s death. A person, who dies without a will, is “intestate” (in-TEST-ate) which means that person’s property will be distributed according to the state’s determination by statute as to who should receive the property. In Texas the beneficiaries will frequently need to go to court for a judicial determination of who receives the property if title must be established in order to obtain the property. This commonly includes land, bank accounts, stock and similar types of property. Failure to leave a valid will that clearly sets forth your intentions can greatly increase the cost of probate and delay the division of property. It is always advisable to prepare a will.

State laws regarding who gets your property may not be in accordance with your wishes. There are several advantages to a will in Texas. You may name the person or persons you want to manage your estate (executors); you may designate who you want to receive your property after the payment of your debts; you can provide that the Probate Court shall take no action in the administration of your Estate (except for the initial hearing to admit the Will, the filing of an Inventory and the notices to creditors) and you can permit your executor to serve without providing a bond. You can do all this and simplify the hearing by having a well drafted Will with a self-proving affidavit.

Q:

How to Avoid Guardianship

A:

There are methods outside of guardianship to manage and protect your person and estate while you are sick, injured and incapacitated. Guardianship is a complex, costly, court-supervised process for protecting and managing the assets, debts, and person of someone who is incapacitated. These steps should be taken before “incapacity”.

These choices include: Trusts, powers of attorney, and healthcare power of attorney. Planning can also include the use “convenience” accounts with financial institutions. The use of a convenience account permits a person to spend money from your account without giving an ownership interest in the account to the person. This can be a very dangerous grant of power, as can any of the other documents discussed and should used only after careful thought.

Perhaps the easiest course to take is to grant “power of attorney” to a friend or relative. This power must be granted by a person who is competent. Competence in a very general sense means that the person is aware of what he or she is doing and understands the powers being given. Lack of competence is called “incapacity”. The granting of powers in a power of attorney can be made effective either immediately or only upon actual incapacity. Waiting until you are too sick or injured often means you will be unable to use the simplified methods to avoid guardianship.

A trust is the transfer of control of property by the owner (trustor) to a (trustee) person to manage for the benefit of a person (beneficiary). It is possible to transfer property to oneself for your own benefit if in the future the property will benefit someone else under the terms of the trust. When this is done the trust is called a living trust or revocable trust. These terms mean the trust can be changed or terminated at any time prior to the trustor dying or becoming incapacitated.

After a formal document is properly created, the person granted power under a trust or power of attorney can legally handle financial transactions on the other person’s behalf. It is important to also consider having a durable health care power of attorney so that you have someone you trust to make medical decisions on your behalf. A power of attorney can be revoked at any time while a person is competent.

If the condition of the ailing person is severe and no trust or powers of attorney were created, a guardian for the person and estate may be appointed. All states, provide for the appointment of a guardian if the person is so incapacitated that he or she can no longer handle matters. Friends, family or interested persons may ask the court to be appointed as guardian. You may designate who you do or do not want to serve as your guardian. In Texas family members have the first right to serve. If a long-term disability is expected a living trust may be an appropriate choice.

Trusts and powers of attorney may only be created by a person before being “incapacitated”, i.e. losing competence. If you have any questions about guardianship, trusts or power of attorney, or concerns about your estate, it is important to consult an attorney.

Let an experienced Estate Planning attorney, help you with your all of your life planning legal needs. Mr. Kennedy serves clients in Dallas, Fort Worth, Arlington, Mansfield, Grand Prairie, and all surrounding areas in Tarrant and Dallas Counties.

*The Information provided in this website by Arlington elder care attorney Charles Kennedy is meant to be general in nature, not as advice for the exact circumstances you may face.