Executor’s Duties in a Texas EstateJune 16, 2016
Why DIY Estate Planning is Not a Good IdeaAugust 1, 2016
As a Houston estate planning attorney, a question I am often asked is, “what is involved in preparing an estate plan?” The answer depends on your unique individual situation, which is why I don’t recommend undertaking this task without the assistance of a qualified attorney. However, most estate plans have several common elements, and I hope this checklist helps you in thinking about the steps and documents involved in your estate plan.
- Statutory Durable Power of Attorney – A power of attorney allows you to designate an agent who will be responsible for making financial and legal decisions if you are unable to do so yourself. Without a power of attorney, your family may have to go to court in order to have a guardian appointed to manage your assets and make these decisions for you. In naming an agent on a power of attorney, you should choose someone in whom you have complete trust to manage your affairs, such as a spouse or close friend or relative. The document can be drafted to take effect immediately or when you become incapacitated, whichever you choose.
- Medical Power of Attorney and Living Will. A medical power of attorney allows you appoint someone to make medical decisions on your behalf i if you become incapacitated. This document should also include HIPAA Release language so that your health care providers are authorized to share your confidential medical records with your agent. In addition, you should have a Directive to Physicians (sometimes referred to as a “living will”), which indicates your wishes about receiving life-sustaining treatment if you are suffering from a terminal or irreversible condition.
- Last Will and Testament. A centerpiece of any Texas estate plan is a will, which dictates how your property will be disposed of after you die. If you have minor children, your will can also appoint guardians for your children in your will. Many people are unaware that not all of their property passes under their will through the probate process. For example, retirement assets (401k, IRA, etc.) and life insurance pass outside of your will according to the beneficiary designation form on file with the custodian of the account. Since many people have large IRAs and life insurance policies, it is critical that you coordinate your beneficiary designations with the rest of your estate plan. Failure to do so could have drastic undesired consequences on your estate plan. You should consult a qualified estate planning attorney for advice on how to coordinate your probate assets (the assets that pass under your will) with those assets that pass outside of the probate process.
- Write out Funeral or Memorial Instructions. Generally, funeral instructions are not included in a will because the will may not be opened or read until weeks or even months after you die. You should write down your wishes concerning funeral arrangements and give copies to your close friends or family members. This will help ease the stress on your loved ones as they prepare your final resting place.
- Create a list of Accounts and Documents. You should create a list of your financial accounts, life insurance plans, and retirement accounts, along with other important papers such as deeds to real property and titles to cars and other property. You should also list the contact information for professionals who your friends or loved ones may need to seek help or counsel to administer your estate, such as your financial advisor and estate planning attorney. This list could also include account names and passwords for digital accounts, such as email and social media accounts, although the rules vary by company on who is allowed to access your accounts. For example, if you have a Facebook account, you can designate someone to manage your account after you die. You should keep this list in a secure location location, such as in a home safe or bank safe deposit box, and let your loved ones know how to access the information if something happens to you.
- Review your plan yearly. Circumstances change, and you need to review your plan each year to insure that it still meets your needs. For instance, has one of the agents you named on your powers of attorney died or become estranged? Additionally, tax laws and state probate laws change from time to time, so you want to be certain that your documents are in line with the current laws. By keeping your plan updated, you can be sure that these types of issues won’t hinder your care or the administration of your estate?
This list is by no means exhaustive, but it should give you some idea of what you need to be thinking about as you work with your estate planning attorney to develop a plan to insure that your wishes are carried out both while you are living and after you die.
Reference: Natalie Campisi, Your Estate Planning Checklist: How to Create a Financially Sound Estate Plan, Go Banking Rates, June 22, 2016.