Common misconceptions about the need for a Will, Estate Plan, Durable Power of Attorney and Medical Power of Attorney
having a will?
After I die my spouse will be able to live in our home in peace and quiet.
Typically a person wants his spouse to be assured of maintaining her lifestyle including the continued use and enjoyment of the marital estate. That doesn’t always happen for those who die without a Will (intestate succession) if a child of the decedent survives and that 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. Those sections require the surviving spouse to share ownership of both the real and personal property with the decedent spouse’s child/children. Divergent goals create the potential for conflict and bad feelings that can make the life of the surviving spouse miserable. The goal of the surviving spouse is a place to live, which may include selling the house to facilitate moving into a more appropriate facility. The goal of the surviving child/children is to obtain the maximum liquidated value at the soonest possible time. A Will could have made the Decedent’s preference known and avoided the problem.
My daughter Susan will get my mother’s broach when I die because I told her she could have it.
Daughter Emily also says that you promised her your mother’s broach and you’re not there to resolve the controversy. A statement in a Will would have avoided the dispute.
My estate will pass to my spouse who will leave our estate to our children.
What if the surviving spouse remarries and decides to leave her estate to her second spouse? “Our children” are left with nothing but anger and frustration – probably not even any mementos. A Will could have protected the inheritance of the children as to the first to die parent’s share of the estate.
having an estate plan?
I created a joint account with one of my children so that she can pay my bills.
But when the account was opened it was marked to be a joint account with right of survivorship. When you die the money in the account will pass to the joint account holder to the exclusion of the other children. The right of survivorship is a contractual right that prevails over any other instruction, including in a Will.
I want my estate to pass to just some of my children, they will use the funds to take care of my special needs child.
Will they if the child’s basic needs are being met at the expense of the state in an institution? A special needs trust would have assured the special needs child of what you wished for him and provide the resources.
I want my entire estate to pass to my child with special needs. The other children can take care of themselves.
Depending on the special needs, the entire estate may be required to be used for the special child’s care until it has been exhausted. A special needs trust could have set the estate aside to provide the child with favorite foods, travel and entertainment while public benefits provided for food, clothing and shelter.
with a Durable Power of Attorney?
I become incapacitated, my spouse can take care of everything.
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.
power of attorney is only for those who have a chance of getting dementia, such as Alzheimers.
about those who have a stroke, or have an illness that requires powerful drugs
or become incapacitated in an accident?
have a power of attorney that was done for me ten years ago before I shipped
may not be a Durable Power of Attorney. If it is not, then the authority
of the agent stops when you become incapacitated, instead of beginning when you become incapacitated.
have a power of attorney that was done for me in Illinois before I moved
here to be near my daughter.
may be effective under Illinois law. Is it effective under Texas law?
with a Medical Power of Attorney?
wife knows what I want.
she was also in the accident and is now dead, incapacitated or too upset
to talk or make decisions.
Texas law cover this?
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.
had long talks about this with my daughter.
child or family member may ignore or not believe the representations of
the person in whom you have confided.
or child will look out for me.
you talked with them? Do they know what you want? Do you have a Medical
Directive? Do they want the responsibility?