It’s understandable to have many questions when it comes to estate planning and administration. We have answered some of the most common questions below. Don’t hesitate to reach out to us if you have additional questions. Please know the answers below are for informational purposes only and do not constitute legal advice.
Estate planning is the process of making the properly executed legal arrangements necessary to protect your family, plan for your personal and health care, and manage or transfer assets in the event of your incapacity or death.
An estate consists of all your assets including real estate, bank accounts, retirement plans, stocks and other securities, life insurance policies, and personal property such as cars, jewelry, and artwork. The value of your estate is equal to the value of the assets minus your debts.
Probate is the legal process by which a will is proved to be valid and the estate of a decedent is administered in court. Generally, the probate process involves collecting a decedent’s assets, liquidating liabilities, paying necessary taxes, expenses, and debts, and distributing and retitling property to heirs or beneficiaries under a will. These activities are carried out by the executor or administrator of an estate appointed by the court. Texas has several different procedures for the administering of an estate, some involve wills and some do not. Generally, the probate of a will must take place within four years of the date of death. You also generally cannot represent yourself in a Texas probate, and you must retain counsel. You should seek an attorney experienced in estate planning and probate law.
If you die intestate (without a valid will), the Texas statutes will determine how your property will be divided. All of your assets that do not have valid beneficiaries designated will be distributed in a manner set by Texas law, which may conflict with the way you would choose to have your assets distributed. This is especially true if you are in a blended family situation and have children from a prior marriage.
I often hear people say, “I don’t need an estate plan. I don’t have an estate!” But that’s not true. Virtually everyone can benefit from having a personalized estate plan, which is, at the very least, a will. Without one, the state of Texas will decide what happens to your house, bank accounts, cars, etc. when you die and can lead to interesting results of ownership depending on your family structure. Further, without a will, probate can be a very expensive and time-consuming experience.
Although a will is an important part of an estate plan, it only takes effect after you die. Other documents are needed to carry out your wishes and manage your assets in the event you are temporarily or permanently disabled. Also, it is important to ensure all beneficiary designations are in line with your estate planning wishes.
The primary estate planning documents are:
1. Will. Sometimes called a Last Will and Testament, this document decides who gets your property after you pass on and who will be in charge of your estate.
2. Durable Power of Attorney. This document allows a trusted person to act as your agent and sign documents on your behalf. A Durable Power of Attorney will allow your agent to act on your behalf even when incapacitated. This document is powerful and enables your agent step in your shoes and do everything you would do on your own; such as, open and close bank accounts, sell investments, make gifts, pay bills, sell real estate, sue on your behalf, and transfer assets.
*WARNING: YOU MUST BE VERY CAREFUL WHOM YOU APPOINT AS YOUR POWER OF ATTORNEY. IT CAN BE MISUSED TO STEAL YOUR MONEY OR PROPERTY.
With a durable power of attorney in place, you may eliminate the need for a guardianship, should you become mentally or physically unable to make financial decisions on your own. A guardianship is a court process that is both expensive and time-consuming to have an attorney appointed by the court to represent your interest. A power of attorney can avoid this proceeding and save a reasonable sum of money, which would otherwise be spent on attorney fees and court costs.
3. Living Will. This document directs your attending physician and your trusted person to terminate artificial machines and life-sustaining treatments extending your life if you are in a permanent comatose or vegetative state with no chance of recovery.
4. Medical Power of Attorney. This document allows you to appoint a trusted person to make medical care decisions for you if you are unable due to your incapacity or inability to communicate. Usually, a spouse, child over the age of 18, or other family member is chosen. It is crucial to advise whoever is appointed what your desires are concerning life-sustaining and other medical techniques.
5. HIPAA Authorization. A HIPAA authorization allows you to name an individual who can access your medical information so that your health care provider or insurance company has no reservations about sharing your protected medical information with your designated healthcare agents.
No, please resist the urge! I could tell stories for days of disastrous DIY wills our office has seen and the consequences of such. Filling out the forms may seem straightforward, but any mistakes you make may not come to light until it is too late. Also, these forms may not properly conform to Texas law or address all issues at hand. Furthermore, Texas has very specific requirements concerning wills and execution of wills. If a will does not comply with all these requirements, it can be declared invalid, meaning that your estate could be treated as though you never had one.
By doing things yourself now and trying to save some money, you could cost your family more money than you saved. You could also create more distress, confusion and grief for them. Additionally, the one-size-fits-all character of a do-it-yourself plan does not take into account each individual’s unique circumstances, and consequently each of their individual estate planning needs. Bad estate plans break up good families. We can help you take a proactive approach and streamline the estate planning process to provide a peace of mind now.
In addition to the information above, here are a few more critical reasons you'll want to consider when getting your estate in order:
- Experience. The law is complicated and changes often. Some forms don't address the law's intricate nuances or update as the law changes, which can lead to disastrous and unexpected results. Experienced estate planning attorneys know what to do to make your plan work the way you want it.
- Advisement. Attorneys are called "Counselors at Law" for a reason, and I take that designation very seriously. Every day I counsel families, guiding them through delicate decisions. No two families are the same, so why should estate planning documents be mostly the same with a slight change of words here or there?
- Explanation of Intentions. Frequently there are hurt feelings or confusion that arises from someone's choices made in their will. We not only take the time to get to know you, but we also get to know your family. We strive to develop a meaningful relationship with our clients so that we can provide appropriate guidance and explanations to more clearly state your intentions when the time comes. This type of relationship can help avoid costly or heartbreaking family feuds.
- Coordination of Assets. Estate planning documents control things you own (or are titled in your name). But what about your assets that are not controlled by those documents? Joint ownership, payable upon death, or beneficiary designations on IRAs, 401(k)s, or life insurance policies are a massive part of the planning process. We work with you to coordinate your assets so that your estate plan works collectively as a whole. It is very complicated to navigate the coordination of assets on your own.
- Complexity. Most people believe their estate plan will be simple, but many discover along the way that personalized planning is needed. Texas is a community property state, which adds complexity in planning with separate, marital, or commingled property. You need the guidance and counseling of an experienced attorney.
- Modern Blended Families. When someone dies leaving a DIY will or no will to a surviving spouse and children from a previous marriage, it can be a recipe for disaster and/or unseemly squabbles over money. Blended families can face complex estate planning challenges, and simple wills are inadequate to protect children from previous marriages. Issues can arise between spouses or between children and their spouses. Typically, individuals in blended families want to provide for the spouse and the children from the previous marriage. In some cases, they also want to provide for the children from their spouse's previous marriage.
Blended families take several forms:
- Married couples in which one or both spouses have children from a previous marriage.
- Families with children who are in second or subsequent marriages and who have children from previous marriages.
- Families with children whose spouses have children from previous marriages.
Married people commonly leave everything to each other in their wills. If you pass away first, your spouse will own all your property outright. The issue for blended families is that your husband or wife may, over time, decide not to leave anything or change the amounts going to your children from a previous relationship. Even families who previously enjoyed harmonious relations can end up in court. In such contested cases, there genuinely are no winners.
We recommend stopping in to say hi and check in with us every three years or whenever certain life events occur. Such life changing events may include a change in your marital status, an addition to your family, a death in the family, a change in the value of your assets, the start of a new business, a move from or to another state, and/or changes in the tax code. The simple passage of time may trigger a need to update your plan. Your estate plan should change as your life does. Otherwise, it can become a set of outdated documents that don’t carry out your estate planning goals or protect the people that matter most.
Everyone’s situation is unique, so it is challenging to set one price applicable in all circumstances. We provide individualized service and custom solutions to each client’s particular circumstances, not form documents. Our expertise allows us to provide knowledge and value that you may have been unaware you even needed. Estate planning is personal in nature, we cannot know what plan would work best for you until we have a consultation and cannot determine fees for your actual plan until your meeting.
Kind words from our clients...
"She’s extremely down to earth with not only the professionals with whom she engages but also her clientele. She is able to explain very complex situations so that everyone in the room understands their options. And her level of professionalism and ethics is unparalleled for a practicing estate attorney."
Kate Jaskinia, Wealth Advisor
“What makes Kimberly stand out from other lawyers is that she is a good listener and able to take complex legal issues and explain them to her clients. Estate Planning can be a difficult process and something that many people do not look forward to addressing but Kimberly makes the process easier, helping her clients navigate the legal system during what can be the most difficult time of their lives.”
Austin Stevenson, Municipal Lawyer
“Kimberly helped me sort through all the decisions regarding my estate plan. Her knowledge base is extensive and significant on everything concerning estate planning, even down to the most minute details. I found it very helpful to have her expertise before making those big decisions.”