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Estate and Business Planning for Individuals, Families, and Businesses

Why Bother?

Having a Will, Estate Plan, Durable Power of Attorney or Medical Power of Attorney

Why bother having a will?

Will your spouse be able to live out her days in your home in peace and quiet?

Typically a person wants his spouse to inherit all of their property so that the spouse is assured of the continued use and enjoyment of the estate that the couple had accumulated. That doesn't happen for the estates of those who die without a Will (intestate succession) if a child of the deceased survives and the child is not a child of the surviving spouse. The intestate succession schemes are found in Sections 38 (Separate Property) and 45 (Community Property) of the Texas Probate Code and require the spouse to share ownership of the property with the decedent's child. The result is the potential for bad feelings and conflict that can make the spouse's life miserable. All it takes is for one child or the spouse of a child to be eager to obtain the inheritance in hand rather than let step-mom live out her days in the couples' home or let her sell the home in order to purchase a smaller home or condominium.

How many family members will say that they were promised a particular piece of jewelry or furniture?

Mom or Dad isn't there to resolve the controversy and neither is a statement of the decedent's intentions, a Will. There can be argument and anger in the family.

What if the surviving spouse remarries and decides to leave the entire estate to the second spouse?

The children are left with nothing, perhaps not even any mementos. The terms of the Will of the first to die could have protected the inheritance of the children at least as to that parent's share of the estate.

Why bother having an estate plan?

What if the decedent had a bank or brokerage account and one of the children was added "for the convenience of paying bills" making it a joint account with the right of survivorship?

Any other children are out in the cold. The right of survivorship is a contractual right that prevails over any other instruction including a Will.

Your children will take care of the special child, won't they?

Should they if the child's needs are being met at the expense of the state in an institution?

Won't the share of the estate for the special child be used to make his life easier and more enjoyable?

Actually, it will be used to pay for his care until it is exhausted. It could have been set aside in a special trust to provide occasional candy, clothing and entertainment.

Why bother with a Durable Power of Attorney?

If I become incapacitated, my spouse can take care of everything.

Your spouse has the right to control only her undivided interest in the community property, not yours, and certainly not your separate property. Without a Durable Power of Attorney she will have to go to court and be appointed Guardian of your estate, post a bond for the value of your estate and file annual accountings of her administration of your estate.

A power of attorney is only for those who have a chance of getting Alzheimers.

How about those who have strokes, have an illness that requires powerful drugs or become incapacitated in home or car accidents?

I have a power of attorney that was done for me ten years ago before I shipped overseas.

It may not be a Durable Power of Attorney. If it is not, then the authority of the agent stops when you become incapacitated.

I have a power of attorney that was done for me in Illinois before I moved here to be near my daughter.

It may be effective under Illinois law, is it effective under Texas law?

Why bother with a Medical Power of Attorney?

My wife knows what I want.

But she was also in the accident and is now dead, incapacitated or too upset to talk.

Doesn't Texas law cover this?

Yes, Section 313.004 of the Health and Safety Code, but you may believe that one person is better able than another to handle such a situation.

I've had long talks about this with my daughter.

Another child or family member may ignore or not believe the representations of the person that you confided in.

My spouse or only child will look out for me.

Have you talked with them? Do they know what you want? Do you have a Medical Directive? Do they want the responsibility?