You are single: if you are single and an adult, with no children, your estate will go to your closest biological family member according to Texas law. If you would rather your estate go to young nieces and nephews, friends, etc. you will need a Will to designate the distribution of your property. In addition, your family members may be at odds in making necessary medical and care decisions for you, should you become incapacitated. You should have a durable power of attorney, healthcare power of attorney, and possibly a designation of guardian to ease this process. These documents will ensure that your wishes are adhered to and that your family will not spend time, money, or emotional energy fighting battles over your care. In addition, you may wish to appoint a person to dispose of your remains, or to choose how your remains are disposed, if you do not think your parents will agree with one another on this issue.
You are married: if you are married without a premarital agreement or a partition and exchange agreement, you have community property. If this is a first marriage, and there are no children, all of your property will go to your spouse, including any items that you wish would go to your parents, siblings, nieces and nephews, etc. The only way to dictate how your property is distributed upon your death is with a Will.
You have children: if you have minor children and are married to the children’s other parent, you should name someone to be a guardian and care for your children if something is to happen to you and your spouse. Also, you will want to include a contingent trust in your Will so funds will not be held for your children if you want them to use funds now, and so funds will not be fully disbursed at age 18, if you intend for funds to be overseen for a longer period.
You have grandchildren: if you want to take care of your grandchildren, you will want to have a Will to specify what you are gifting to each grandchild. Special steps need to be taken for minors.
You want to leave a gift to a minor child: if you want to leave a gift to a minor child, you will want to have a simple trust in your Will to allow an adult or institution of your choosing to make financial decisions for the beneficiary. Without a trust in place, the funds will either be held by the financial institution until the beneficiary reaches the age of 18 years, when there will be a full distribution at age 18; or someone will need to apply to be appointed as a custodian or guardian of the estate of the minor. In these circumstance, there will generally still be a full distribution to the child upon reaching 18 years. If you would like to protect the funds for college or until such time as the minor child reaches an age that you deem is more appropriate for such a distribution, you will need a Will with a trust for minor children.
You have a blended family: If you have children from a prior relationship and are now married to a spouse that is not the biological or adopted parent of one or more of your children, you probably need an estate plan, regardless of whether your children are adults or minors. Without an appropriate estate plan in place, you are setting up your children and your spouse to be at odds regarding the distribution of your estate. You may leave your spouse at a disadvantage or you may be leaving assets to a minor or adult child that you intend to take care of your spouse. You will need an experienced estate planning attorney to assist you in setting up your estate plan to accomplish the goals of your family.
You are in a long term relationship, but not formally married: If you intend your significant other to inherit from you or to be able to make medical decisions for you if you become incapacitated, you need an estate plan. If you specifically do not want your significant other to inherit from you or act as your spouse, you also need an explicit estate plan in place. Your significant other may claim that you had an informal, or common law, marriage, which may go against your desires. Our experienced attorneys can assist you in setting up a proper estate plan to protect you, your assets, and your loved ones.
Estate planning is for everyone. In Texas, it is generally less costly to have an estate plan and to probate a properly prepared Will than to attempt to go through the probate courts for administration and distribution of your estate without a Will. Collin County, Denton County, and Dallas County all have very reasonable filing fees that are not based on the size of your estate. Estate plans limit fights between family members and loved ones and ensure your wishes are followed.
Contact the Frisco Family Law Attorneys at Hanshaw Kennedy, LLP to discuss your estate planning needs.
- This is based on Texas law and meant to apply to those who reside in Texas.
COLLIN KENNEDY GETS INVOLVED IN THE AFTERMATH OF TWO MURDERS (OF ALL THINGS) AND ACHIEVES JUSTICE IN THE MOST UNUSUAL OF CIRCUMSTANCES.
Sometimes even a veteran lawyer sees a case unlike he has ever seen. This happened twice to Mr. Kennedy in 2014.
In a probate proceeding in Ellis County, Mr. Kennedy represented a client who had been acquitted of murdering her spouse. While she was incarcerated and waiting for her criminal trial, the adult children of her deceased spouse obtained an injunction preventing the client from inheriting substantial life insurance proceeds and other investments from their dad. Mr. Kennedy entered the case and immediately filed a Motion to Dissolve the Injunction. On the day of the hearing, the case settled and Mr. Kennedy’s client received a huge settlement.
Similarly, Mr. Kennedy was hired by a client in Harris County who was in jail charged with murdering his wife. There were many questions surrounding the facts related to the murder charge, but the Client needed Mr. Kennedy’s help because a civil court had awarded an injunction in favor of the children, effectively preventing the client from having access to all of his substantial estate. Mr. Kennedy filed a Motion to Dissolve the Injunction. Yet again, on the day of the hearing, the opposition capitulated and Mr. Kennedy was able to achieve a favorable settlement for the client.Read More
In Texas, guardianship is a process where a court appoints a person or an organization to care for the physical and/or financial needs of a minor child or incapacitated adult. This is generally an onerous process because the rights of the person who needs a guardian (Ward) are being removed and given to another person or organization.
There are two types of guardianships: guardian of the person and guardian of the estate. A guardian of the person makes decisions for the Ward’s well-being and daily care. A guardian of the estate cares for the Ward’s property and financial well-being. Not every Proposed Ward requires both types of guardians, and those who do require both may have the same person or different people named in each capacity.
There are a few circumstances where guardianships are more common:
- Minor child who does not have parents with legal rights or the ability to make decisions on the child’s behalf.
- Disabled adult, especially those just turning 18 years old. Parents of a disabled minor should consult with an experienced guardianship attorney before the child reaches the age of 18 years. At 18 years, the child is legally considered an adult, and he is presumed, by law, to be able to make his own decisions. To protect that disabled adult, the parents or caregivers should have a plan in place to continue caring for the child’s well-being and financial security into his adulthood.
- Elderly (without a comprehensive estate plan). Those who lose capacity through Alzheimer’s, dementia, and other diseases and disorders that cause the adult who was once able to care for herself to continue to do so.
Anyone who knows the person with the incapacity can bring the case to court. It will generally take an Ad Litem attorney and at least one doctor (unless it is the case of a minor child) to determine whether the proposed ward is actually incapable of caring for his or her well-being and/or finances. As stated, this is a relatively high burden, due to the high stakes involved in removing any rights of the proposed ward.
Most people can avoid the need for a guardianship by having a proper estate plan in place. An estate plan will allow you to choose people to make certain decisions for you if you should become incapacitated. A comprehensive estate plan may also include a designation of a guardian to care for you if you become incapacitated.
If you are interested in consulting with a local, experienced attorney regarding the appropriate estate plan for your needs, please contact our office. If you know of someone who is incapacitated and in need of a guardian, please contact our office for a consultation.Read More
Proactive Planning is the Greatest Gift
Who Needs an Estate Plan?
The short answer, everyone. Anyone with any type of property, no matter the size of your estate; anyone with family members they want to protect from the costs and time associated with probate; anyone with minor children; and anyone who wants a certain person, people, organization, etc. to receive some or all of their property upon their death.
Contents of a Simple Estate Plan:
- A Will
- Durable Power of Attorney (for finances and property)
- Medical Power of Attorney
- Advance Directive to Physicians
Purposes of the Will?
1. Protects Minor Children
A Will is the easiest way to transfer guardianship of minor children. You can choose guardians and alternates for your children as well as guardians of the estates of the minor children. A Will can also create a trust to protect the finances of your minor children.
2. Disposition of Your Assets/Property
A Will gives you a way to tell the world how you want your property disposed of or distributed upon your death. You can choose to give your property to family members, friends, charities, etc. An experienced local estate planning attorney can help you ensure your wishes will be followed upon your death.
3. Avoid Probate
In Dallas, Denton, and Collin counties, probate is not as difficult as it may be in other areas around the state or the country. However, probate of an estate without a Will (intestate) is much more costly and difficult than administering an estate with a properly executed Will, written by an experienced estate planning attorney. Furthermore, distribution of your property will follow the rules imposed by Texas Law as interpreted by your local probate Judge instead of executing your individualized wishes.
What is a Durable Power of Attorney?
A Durable Power of Attorney allows you to specify a person or people to make financial decisions for you prior to your death (the Executor of your will would be given many of those powers upon your death).
This document makes someone your legal agent, allowing that agent to sign documents on your behalf and manage your financial affairs. Under the Durable Power of Attorney, your agent or agents must uphold a strict fiduciary duty to you and you can limit or expand the specific powers give to your agent within the durable power of attorney. Also, the durable power of attorney can either become effective immediately upon signing the document, or it can become effective at a later date (i.e. upon your subsequent disability).
You will want to work with your estate planning attorney to determine the most beneficial use of the durable power of attorney in your current situation.
What is an Advance Directive to Physicians?
An Advance Directive states your wishes regarding life sustaining medical intervention in the event you are unable to communicate your wishes to your health care provider. This is an important document in your estate plan because it removes the need for loved ones to make difficult decisions regarding your end of life care.
What is a Medical Power of Attorney?
A Medical Power of Attorney lists agents to make health care decisions for you in the event you are unable to make such decisions on your own. This is different from an Advance Directive because it names people who will need to make health care decisions, instead of simply listing some of your own wishes for the treating health care providers. Not only is this an important document for those planning their estates, but the attorneys at Hanshaw Kennedy, LLP recommend that college students and other young adults consider executing a medical power of attorney designating their parents to make such decisions in case of emergency. Without this and a HIPAA Release, parents may have a difficult time obtaining information from health care facilities and may need court intervention before they can make such decisions on behalf of their adult children.Read More
Texas Estate Planning…A Few Simple Steps, Will Solve Big Problems
The movie depicts a dysfunctional “nuclear” family coping with loss and change in modern day Hawaii. We are drawn immediately into a “not quite right” suburban setting in the beautiful islands of Hawaii. Aside from the setting, the King family seem normal enough in that they go to work, go to school, play sports and generally try to make their way through life.
George Clooney plays Matt King, a successful businessman and lawyer and a local land mogul whose family roots date all the way back to Hawaiian royalty. King is married and has two daughters who are struggling to cope with a recent accident that rendered their mother in a coma. Matt King is the sole trustee of a family trust that owns a very substantial amount of land on the island of Kaua’i. Because of the Rule of Perpetuities (a virtual nightmare concept for any first year law student, I assure you) the trust must soon be dissolved and King, as the Trustee, has decided to sell the land to a local real estate developer.
What does all of this have to do with estate planning? Everything. The Kings are very wealthy, sure, but that is not the necessitating factor requiring that they have their affairs in order. No, again, they are normal folks, like you and me. And when you see all that they are dealing with, you come to realize that it would be really nice if the “little things” were taken care of in advance. Numerous examples of why you need to do some planning prior to a life-changing event are set out in this fictional account of the very non-fictional inevitability of change and uncertainty in our lives.
King’s wife is in a boating accident. We are told she was a healthy, vibrant and adventurous soul prior to the accident. Now she’s in a coma, hooked up to machines that feed her, help her to breath and monitor her vital signs. One day she’s a mother of 2 and a wife. The next day? She’s still a mother of 2 and a wife. But what happens to her? What happens to her family? How do they cope with this change? Does she have a living will? A medical directive? A power of attorney? Does she want to be removed from life support?
And what happens to the land owned by King’s family for generations? Will it be sold to commercial interests who care nothing for Hawaii or its history? Will all of the relatives who are interested in the sale of the land honor the wishes of the initial grantor of the trust? And what were those wishes?
The movie forces us to examine our own fragility. For, indeed, we will face change in our lives. We may suffer a tragic accident that renders us disabled or a terminal disease that means our time on Earth is finished. And though it is over for us when that happens, what are our loved ones left with? We may want to make their lives easier monetarily. We may want to show them tokens of our affection for them through specific bequests. We may even wish to preserve family land or possessions for our grandchildren and their grandchildren. Regardless, we need to do some planning now. It’s inevitable – change is coming.
The Kings are just like you or me (except they are multi-millionaires!!). They didn’t expect these things to happen. But they happened all the same. Will you be ready when the time comes to make tough decisions? Will your loved ones have to clean up any messes you’ve made or will they get to celebrate your life because you’ve planned ahead. That’s all it is – planning for the future. And it’s a future where we know what will happen: something, anything. Change is certain. Are you ready for it?
Contact Hanshaw Kennedy, LLP today and we will help you through any of your business or personal legal needs.Read More