Estate Planning FAQ

Why Do I Need a Will?

The answer depends on your circumstances, but basically, if you have a will, you get to say who gets your stuff when you die. If you don’t, the Texas Estates Code controls and that REALLY can have some unintended consequences!  For example, if you’re married, have only been married to that spouse and all the kids are with that spouse, your spouse gets all the community property from the marriage but only a partial and temporary interest in any separate property real estate (think “inherited lake house”).  If either of you was married before, you get even less and you may even end up owning your house with your stepkids.  Nobody wants that.  These are just a few examples and your answer will depend on your circumstances.  It’s worth a chat to talk through your options, and you can see my explanation of a will here.

I Need to Help My Mom with Her Finances. What Kind of Document Will I Need?

The document we recommend is a Statutory Durable Power of Attorney.  Also called a financial power of attorney, this document lets you designate somebody to, in essence, be you to third parties.  With this document, the person you designate can either have the power to do some things but not others (making it a special power of attorney), or to do anything in your name (the general power of attorney).  Either way, you can also designate whether it takes effect immediately and doesn’t terminate when you’re determined to be incompetent, or whether it doesn’t become effective until you’re incompetent. This is an exceedingly powerful document, so choosing the right person is critical.

I Have My Dad's Power of Attorney but The Hospital Won't Talk to Me About His Medical Condition. What Do I Do?

A financial or Statutory Durable Power of Attorney doesn’t work for medical treatment.  The answer depends on the circumstances.  If your dad is competent, he can sign a HIPAA authorization that designates you as one of the people his healthcare providers can talk to.  You should also discuss a Medical Power of Attorney with him and a Directive to Physicians (also called a living will).  If he’s not competent and you don’t have an MPOA or HIPAA form, the Health and Safety Code lists the people who can consult with his healthcare providers and you and your siblings are right after his spouse.

My Mom Is Very Sick and Executed a Directive to Physicians. Is This the Same Thing as A "DNR"?

No, it’s not. A Directive is also called a living will and is the document whereby you direct, in advance, what you want your physician to do if you have a terminal or irreversible condition and you can’t communicate with your Health Care Providers.  The normal choices are either, “Do everything you can, even if it’s futile” or “Keep me comfortable and let me go.” The difference between this and a DNR, or Do Not Resuscitate order, is that the Directive lets the doctor institute a DNR if the conditions for one are met. Click here for a video explanation of Directive to Physicians.

What's the Difference Between a Will and A Trust?

How much time ya got? Seriously, there are several types of will and many types of trust, but the main difference between a will and a living trust is that a will says who gets your stuff when you die, whereas a living trust takes effect while you’re still alive (hence the name), when you transfer your property into the trust.  It’s an estate planning tool that also has some liability protections associated with it.  It’s a lot longer conversation, so give The Jacobson Law Firm, P.C. a call and we can schedule a discussion.

My Spouse and I Want to Get Away for A Short Trip While Our Kids Stay with Their Grandparents. Do We Need to Give Their Grandparents Some Kind of Authorization in Case the Kids Get Sick or Hurt?

Yes, it’s a very good idea to get a lawyer to draft a power of attorney “in loco parentis” to leave with your folks.  That way, if somebody gets sick or breaks an arm, they can show authority to seek medical help.  There are other things that can be authorized as well, like enrolling the child in school, etc.  Here’s a link to a blog post I did on the subject:

I Just Got Divorced and My Ex-Husband Is Named as The Beneficiary in My Will. Should I Change the Will?

A good question, and the answer applies to any life insurance policies you have as well: Texas law provides that for purposes of inheriting or collecting on life insurance, an ex-spouse is treated as though he/she died before the person making the will or owning the insurance policy.  This means that your ex won’t inherit under normal circumstances.  In some cases, people still want the ex to inherit or serve as executor under the will or to receive life insurance proceeds.  In the case of the will, you would have to execute a new one or a codicil that specifically states that “my ex-spouse” will inherit/serve as executor.  For the insurance policy, you would fill out a new beneficiary designation form, dated after the date of divorce, that names the ex.

I Made out A Will 30 Years Ago when I Was in The Military. Is It Still Any Good?

Generally speaking, a will that was valid when, where, and in the manner it was executed remains valid until revoked.  So the short answer is yes; however, a lot of things have probably changed since you were an Airman Basic (y’know, wife, kids, house, parents deceased, etc.) and it’s a very good idea to review your will with an attorney every few years and discuss your circumstances to see whether you want to update your will and other documents.

I Need to Change My Executor in My Will. Do I Have to Do a Whole New Will?

You don’t have to, you can have an attorney write a codicil, which is basically an amendment to your will that changes the executor but reaffirms the rest of your will.  However, since 1) you’ll have two documents to keep track of, 2) a will and codicil make your probate a little more complex (and costly) and 3) there’s not a huge price difference in just doing a new will, you might want to discuss the alternatives.

How Old Do I Need to Be Before I Get a Will?

Every case is different; however, anyone 18 or older can make a will, and (as you’ll see all over this page), having a will is virtually always better than not having one. Exceptions might be where you don’t own a home and ALL of your personal property (bank accounts, investments, vehicles, etc.) has a beneficiary designated to receive it when you die.  There are ways around having to probate an estate, but they need to be discussed with an experienced estate planning attorney.

I Am in My 30s, Married with Two Young Children. Does a Will Protect My Kids in The Event of My Spouse or I Unexpectedly Passing Away?

In this set of facts, wills would 1) let you set up a trust for minors and appoint the trustee and an alternate trustee, and 2) let you designate who you want to raise your kids (guardian of the person) and handle their finances and property (guardian of the estate).  These could be all the same person, but maybe, for example, your sister is a great mom but a lousy money person. She could be the guardian of the person and you could appoint somebody else to manage the estate.

I'm Married. If I Die without A Will, Won't My Spouse Just Get Everything?

This might be the most persistent myth about inheritance – that the surviving spouse inherits all of the dead spouse’s stuff.  The fact is that with no will (what’s called an “intestate estate”), the Texas Estates Code determines who gets what, and it’s rarely the way you think it is. For more information on Heirship proceedings, click here. For more information on why it’s really good to have a will, click here.