LAST WILL & TESTAMENT

Like many attorneys, I often prepare wills and trusts. The client interview is the most important and time-consuming part of this process. People differ, and their needs vary considerably. A frequently asked question is: How much does a will cost? Unfortunately, I can’t answer that question until we have the initial conference. I need the answers to a lot of questions before I can describe your options, make recommendations, and determine fees.

The initial interview takes at least an hour. If married, both spouses normally should be present. It will save time if basic information is prepared in advance, so I suggest you print the appropriate Will Information Sheet from this website, fill it out, and bring it with you. If you believe your estate is not large enough to incur federal estate taxes, I won’t need detailed information about your assets, but you should have an educated guess of your net worth, by which I mean the total value of your assets should you die. This includes life insurance death  benefits, cash, real estate, retirement plans, investments, and anything else of significant value, less your debts.

I need complete legal names of anyone who may be mentioned in a will, trust, or power of attorney, including immediate family members, beneficiaries, executors, guardians, trustees, or agents. If you (or you spouse) have been married previously and/or have children from previous relationships, please bring that information with you, preferably typed or printed. It helps to know the ages of children and/or grandchildren as well. If you are married, but own any separate property, which is generally property acquired before marriage or by inheritance or gift, let me know, because your Last Will & Testament generally disposes of your ½ of community property, plus 100% of your separate property. If you expect a significant inheritance, please let me know.

GUARDIANS

If you have minor children, you will probably want to name a guardian (and possibly a backup) in your will. I usually recommend choosing an individual rather than a couple (what if they divorce?). The last surviving parent has the right to name a guardian, and may choose to separate the day-to-day responsibility of raising the children (Guardian of the Person) from the financial duties (Guardian of the Estate). Give this some thought before you come in, but do not put off your Last Will & Testament just because you cannot decide on a guardian for your children. A separate document (Designation of Guardian) can address that issue. Competent adults can also name a guardian for themselves (should the need ever arise), or exclude certain persons (like your estranged brother).

POWER OF ATTORNEY

I’m told that the odds of a healthy person becoming disabled are greater than that of dying. Arguably, this makes a Power of Attorney (POA) more important than a Last Will & Testament. A POA permits one person (the Principal) to appoint another person as his or her agent (Attorney-in-Fact). Obviously, the agent needs to be someone you trust, such as your spouse. A POA can often avoid the necessity of a formal guardianship, which is much more cumbersome and expensive.

POAs can be “limited,” such as a POA to buy a house, or “general,” which gives the agent all the legal powers the principal has — to enter into contracts, sell property, make investments, etc. Many people are under the false impression that a POA gives the agent power to handle the estate of a deceased person — but a principal can only give powers to an agent that a person possesses, and when we die, we lose the power to do anything.

Texas has a Statutory Durable Power of Attorney. Statutory means that the state legislature has passed a statute which officially “blesses” specific language. Durable refers to the fact that a competent person can execute a POA that will still be effective when and if the principal loses competency.

LIVING WILLS/HEALTH CARE POWER OF ATTORNEY

Another option I normally discuss is a "Living Will," (Directive to Physicians), which expresses your wishes concerning difficult questions such as whether you desire to be kept alive by artificial means if you face imminent death or prefer to just being kept out of pain while nature takes its course. Usually, we combine a Living Will with a Healthcare Power of Attorney (HCPOA), which appoints an agent with the authority to make health care decisions for you if you cannot. We also include a HIPPA waiver, which removes any doubt that you want your health care agent to have access to your personal health information so that he or she can make an informed decision.

LIVING TRUSTS

Living Trusts are marketed nationwide, but are rarely desirable for Texans. They do not avoid estate taxes! The primary advantage of a Living Trust is that it may avoid probate. However, the cost and trouble of creating a Living Trust and re-titling all assets you own now or acquire in the future generally outweighs the advantages. Texas has a fairly modern Probate Code, which if utilized by having a properly prepared Last Will & Testament and related documents, usually is more practical and less expensive than going the Living Trust route.

Any of the above described instruments can be prepared and executed (signed in front of witnesses with the proper formalities) separately, or at the same time. However, you will often save money by asking me to “bundle” the charges for all the documents to be prepared and executed at the same time.

If you were referred to me by your stockbroker, accountant or financial planner, and you want me to consult with them, they and I will need your permission because of confidentiality.

FAQs

DO I NEED A WILL?

Getting a will prepared is something we tend to put off, like a visit to the dentist. We know we really should get one, but dread the process, probably because it forces us to contemplate our own death.

Preparing a will is not as painful or expensive as you might think. In the long run, having a will makes things easier, quicker, and less expensive — for your family, friends, the court system --- pretty much everyone. In fact, not having a will is rather inconsiderate when you think about it. While most wills are not complicated, they must be prepared carefully in order to be effective and carry out your wishes efficiently and inexpensively. Non-lawyers who attempt to draft their own wills may inadvertently leave big problems to be resolved by their loved ones at a time when they are already anxious and depressed. Also, each state has different requirements for a valid will. Filling out some form you found on the internet is very risky.

WHAT PROPERTY DOES MY WILL DISPOSE OF?

Generally, 100% of your separate property (acquired before marriage or received during marriage by gift or inheritance) and your 50% of the community property if you are married.. This is why married persons must each have their own will, which may or not be mirror images of each other. For more information about separate and community property, refer to the Family Law FAQs section of this website. Most people also have assets that may pass outside the will. I refer to these as “non probate assets.” Examples would include life insurance benefits, bank accounts, and retirement accounts like IRAs. With the exception of non-probate assets, probate is required to notify the world who owns the assets you owned when you died.

WHAT IS PROBATE?

WHAT ABOUT MY MINOR CHILDREN?

WHAT’S A LIVING WILL?

WHAT IS A HEALTH CARE POWER OF ATTORNEY?

WHAT IF I BECOME INCAPACITATED?

WHAT IS A LIVING TRUST?

A Living Trust is not a good idea for most Texans, although it may be used in appropriate situations, such as to hold legal title to out-of-state real estate. A Living Trust is a document executed during a person's lifetime, sometimes instead of a will. Property in the trust passes according to the terms of the trust and is not subject to probate. While Living Trusts are sometimes promoted as offering estate tax advantages, this is incorrect. Even if you have a Living Trust, a will is still necessary because it’s virtually impossible to be certain that every single asset owned at the time of death has been conveyed to the trust. Some assets may not even be known to exist, such as a financial settlement reached as a result of a wrongful death. You should consult with an attorney about the best approach for you. For the vast majority, a will and a statutory durable POA are cheaper and preferable to Living Trusts. The seminars where Living Trusts are promoted are often offered “free,” but if the participants fall for the marketing pitch, the actual cost of the Living Trust is usually far more than a proper will and related documents, which are still needed anyway. The promoters tell their audiences not to listen to attorneys’ criticism of their product, because lawyers want you to use them for wills, and these living trusts eliminate the necessity for wills! Once bought, the sponsors of the seminar are gone, leaving no one to answer questions and no one to remind their customers that all assets purchased thereafter must also be put into the trust for it to stand a chance of doing what they were designed to do.

HOW MUCH DOES A WILL COST?

I can’t know what you want or need without first interviewing you. Consequently, I can’t quote or estimate a fee until I know what I’m going to be doing. It’s like asking a car dealer how much does it cost to buy a car.

ADDITIONAL COMMENTS ABOUT PROBATE

I find it helpful to think of probate as the legal process which passes title to assets that belonged to a deceased person to the heirs of the deceased. Many people fear probate because they’ve heard all kinds of horror stories, usually from other states that have totally different probate laws. Generally, these fears are not justified, especially if the deceased had a will drawn by a competent attorney who took the time to educate his client regarding his/her choices.

Some assets do not pass pursuant to the terms of a will, such as bank accounts which are often payable on death to a surviving spouse or child. Insurance policies and retirement plans are other examples. Lawyers refer to these assets as non-probate assets. It helps to know the details regarding these assets to advise clients, and to determine what type of probate is going to be necessary and how difficult or time-consuming it may be.

More often than not, my clients are primarily concerned with who will inherit their worldly goods. It should come as no surprise that people generally favor their spouses and children, but lawyers are concerned with how smoothly and inexpensively the transfer of those assets will be. Generally, it’s important that the will names an Independent Executor with backups, and usually, bond should be waived. I worry about estate taxes, guardian and trustee choices, spendthrift trusts, estate liquidity, separate property, and other things that my clients often have not contemplated. The more you have, the more complicated your will is likely to be, and the more planning and expense you should expect.

Most of my clients want all these issues discussed and dealt with, but express a desire to "keep it simple." Unfortunately, it’s not always simple. I attempt to balance reasonable simplicity with appropriate complexity. I generally offer suggestions, but the decisions are left to the client.