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Estate Planning

Estate Planning

Estate planning is an area that people often shy away from, and for good reason. Death is an area that society tends to be uncomfortable with. Some are worried about legal fees, while others are confused by the legal system and how it handles probate and estate after death. However, taking the steps to properly prepare your estate plan is one of the most vital decisions you can make to protect both yourself and your loved ones. At Pratt, Mong & Lee, our attorneys provide assistance with basic estate planning tools including:

Last Will and Testament
Durable Power of Attorney
Directive to Physician
Medical Power of Attorney
Declaration of Guardianship
HIPAA Release Drafting
Appointment for Disposition of Remains
Trusts

Last Will and Testament

A will is a legal document that allows you to name the heirs who will receive your real and personal property after you pass on. You can also name who will care for your minor children, as well as who will settle your estate. However, wills have certain requirements that must be met in order to be valid; having an attorney handle the creation of a will helps you ensure that there will be no problems later on.

Can a will be contested?

Yes, a will can be contested by someone who has legal standing to object to the will, and for many reasons, such as fraud or invalidity. In order to prevent this from occurring, it is best to seek the counsel of an experienced attorney when drafting the will.

What happens if I die without a will?

If an individual dies without a will, he is said to have died “intestate.” If an individual dies intestate, the government steps in and decides how all of the decedent’s assets are handled and distributed. Each state has a different intestate succession chart and the assets of the deceased are distributed according to this chart.

Who is in charge of the estate during probate?

If the deceased died with a will, the executor named in the will should take steps to file the will with the probate court and begin the probate process. During this period, the probate court will rule on the validity of the will. If deemed to be valid, the executor then notifies all heirs and creditors and presents the court with lists of who is to inherit what. The executor is in charge of distributing assets and settling creditor claims.

If the deceased died intestate, or without a will, someone must request the court to appoint him or her as the administrator of the estate. This is normally done by a spouse or family member.

Why should you try to avoid probate?

Depending on the size of the estate and the number of heirs, probate can become costly and time-consuming for all parties involved. Probate costs include court fees, legal notice expenses, executor’s fees, attorney’s fees and appraisal fees. Under normal circumstances, probate can take anywhere from a few months to over a year. That time period may increase if any heirs contest the will, or if the estate is particularly complicated. During the process, property and assets are generally frozen, and parties involved in the probate process undergo strict and inflexible court proceedings. Further, while wills are private legal documents while the individual is alive, they become public record once they are filed with the probate court. This poses an additional concern for heirs wishing to keep their affairs private.

Should probate always be avoided?

In cases involving moderately-sized estates, probate may not be too complicated. There are also certain benefits to going through the probate process. For example, the probate process legally verifies the authenticity of a will, if one exists. Any disputes will be resolved and overseen by the probate court, such as guardianship of minors, disputed claims and will contests. Going through probate can also help protect the estate from future creditor claims, as creditors are generally required to file a claim against a decedent’s estate within a certain period.

Durable Power of Attorney

Power of attorney allows another individual to act for you in the event that you become incapacitated. As the principal, you decide what authority and how much authority the attorney-in-fact may have. An attorney-in-fact can have general authority over all of your personal and financial matters, or he may be limited to having authority in particular, well-defined situations.

Anyone may be designated as an attorney-in-fact, as long as he or she acts in good faith. Please note that the actions of the attorney-in-fact are considered as those of the principal. As the attorney-in-fact is not regulated by the court system, it is especially important that the document creating power of attorney contains special prohibitive language. Examples include restricting the actions of attorney-in-fact, and requiring the attorney-in-fact to maintain accurate and complete records.

Is granting someone Power of Attorney safe?

In most cases, if you trust the individual you are granting power of attorney to, it can be an easy way to ensure that your wishes are carried out, and that your estate is taken care of if you ever become incapacitated. However, an inadequately-written power of attorney document may allow the attorney-in-fact to abuse power by placing your property in trusts out of reach of your beneficiaries, or by clearing out financial accounts that were intended for specific purposes. That is why it is very important to consult with an attorney before granting power of attorney to an individual.

Directive to Physician

A living will, or "directive to physician", establishes your decisions regarding your medical care at the end of your life. Depending on your wishes and values, you can decide whether or not life sustaining treatments are administered. Without a living will, your loved ones may argue over this and the fight can even go to court. A living will is a way to ensure your end of life wishes will be respected.

Medical Power of Attorney

A sudden illness or injury can change your life at any time, leaving you unable to make healthcare decisions on your own. For this reason, it’s wise to establish a medical power of attorney to do so on your behalf. A medical power of attorney designates am individual to make any and all healthcare decisions on your behalf, including applying for public benefits, depending on what you decide to include in your medical power of attorney.

When should I appoint a healthcare proxy?

Having a valid medical power of attorney is an important step all individuals should take. Without an enforceable medical power of attorney, Texas statute generally designates individuals in order of priority for who should be able to make your medical decisions. The list starts with the patient’s spouse, their adult children, the patient’s parents, or another individual clearly identified to act in your best interests, such as a member of the clergy or your closest living relative. Even if you are fine with the list, there are potential situations where this order may not be ideal. The only way to make sure the right people will make your medical decisions is to have an established, enforceable medical power of attorney in place.

Declaration of Guardian

A declaration of guardianship document tells the court who you want to serve as a guardian for your estate, your person, your minor children, or your incapacitated adult children in the event of your death. The appointed “guardian” has the authority to make legal decisions on another’s behalf and it ensures the interests of incapacitated adults are protected, too. In Texas, parents may name guardians for their children either within their will and in a separate document. For a better understanding of the legal implications of guardianship, it’s important to retain the legal counsel of an estate planning attorney experienced in drafting enforceable guardianship declarations.

HIPAA Release Drafting

A complete estate plan should include documents to protect future medical care in the event you become incapacitated and can no longer make your own healthcare decisions. Even if your estate plan includes a directive to a physician, effective medical directives often require further information that cannot be disclosed unless you sign a HIPAA (Health Insurance Portability and Accountability Act of 1996) release document. The purpose of HIPAA is to protect patients’ private medical information. Only a valid HIPAA release will allow your medical information to be passed to whomever you would like to oversee your medical care. If you want to ensure your future medical care is left in trusted hands, it’s important to seek the legal advice of a qualified attorney.

Appointment for Disposition of Remains

A comprehensive estate plan may also include an appointment for disputation of remains. This document details how you would like your bodily remains to be handled upon your death, as well as any funeral arrangements. This document is legally binding and names your agent who will carry out your wishes. Without this document, Texas law has a list of who will be responsible for the cost of interment, starting with the decedent’s surviving spouse, followed by his or her surviving adult children, either of the decedent’s surviving parents, his or her surviving siblings, and so on.

Trusts

A trust is a legal relationship where a person or qualified trust company (trustee) retains property for the benefit of another (known as the beneficiary). A trust allows you to provide for people who cannot provide for themselves (like minor children), while putting control over the property into the hands of a responsible person. The property can be any kind of personal or real property, including but not limited to: money, real estate, bonds, collections, personal possessions or even automobiles. While a trust gives the trustee legal title to the trust property, they are not the full owners of the property. Trustees are required to use the property as provided for in the trust agreement.

Pratt, Mong & Lee Law Firm is proud to provide estate planning services to Houston, Texas and the surrounding areas. We work with our clients to create a comprehensive, straightforward estate plan specific to their needs. Contact us today if you need assistance with your will, trust or other estate planning needs.

Estate Planning

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