YOU NEED AN ESTATE PLAN BECAUSE…
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.