Most people don’t like to talk about death. That’s fair. It’s a weighty topic. And though many people know that they need a will, a Gallup poll in 2021 showed that less than half of adults in the U.S. have one. But did you know that there are several other documents that are as important, if not more important, than a will? In fact, there are actually seven must-have estate planning documents that every adult in Texas needs to ensure their family is protected.
A Written Will
Ok, so no brainer. You need a will.
As you might already know, a will is a document that specifies how you want your property distributed or given out upon your death. If the will is valid (meaning, a court has determined as much), the executor of your will is in charge of making sure your beneficiaries get what you said they would.
In Texas, if you die without a will, you are said to have died “intestate,” and the Texas Estates Code then governs who will receive your property. The results can be unexpected. For example, did you know:
- that without a will saying otherwise, stepchildren who are not legally adopted by their stepparent cannot inherit from their stepparent?
- that because Texas has specific rules about community and separate property, your home may not go solely to your spouse upon your death?
This is why it’s important for you to have a will.
A quick note: some people use the phrase “living will” when referring to a Last Will and Testament. A living will is actually another name for an advance directive or Directive to Physicians, which we’ll discuss further below.
Declaration of Appointment of Guardian for Minor Children
It’s true that many people choose to appoint a guardian for their minor children within their will. However, executing a free-standing document (apart from the will) is a better practice because a will is only effective if a person dies. So if, instead, you are incapacitated (think, in a coma, etc.), your will is useless.
A Declaration of Appointment of Guardian, however, will tell the Court who you want to care for your children. You can designate someone to be in charge of the children’s “estate” (their money, assets, etc.) and someone to be in charge of raising the children (living with them, providing for them, etc.). These are called Guardians of the Estate and Guardians of the Person, respectively. They can be the same person or different people. But, not everyone can be appointed as a guardian, so it’s important to know the limits Texas places on guardianship.
Statutory Durable Power of Attorney
That’s a lot of fancy words for “someone to handle my finances and related transactions.”
These forms allow you to designate an “agent” who can initiate lawsuits on your behalf, sell/buy property, and take care of other financial issues for you. You can choose whether you want your statutory POA to be effective on the day you signed it or become effective if/when you become incapacitated (the latter is often called a “springing” POA). Your agent can do a lot of things with this form; however, they cannot make medical decisions for you.
Medical Power of Attorney
This form is used to give power to someone to make medical decisions on your behalf. In fact, the agent MUST carry out your wishes, or if they don’t know what your wishes are, they must act in your best interest. This form helps make clear what you would like to happen in the event you are unable to make a decision for yourself at the time.
Directive to Physicians (“Living Will”)
A Directive to Physicians helps your physicians and family members understand your wishes if you need life-sustaining treatment for an irreversible condition or terminal illness. This form is not the same as a Do Not Resuscitate Order or DNR.
You are probably familiar with HIPAA forms if you’ve been to a doctor recently. Completing this form allows designated people to access your medical records (for example, from one hospital to another, etc.).
Disposition of Remains
This form allows you to designate an agent who is in charge of your remains after death. Often times, families do not know whether a relative wanted to be cremated or buried, or whether their loved one already prepaid for a funeral or burial plot. This document allows you to document your wishes and place someone in charge of ensuring they are carried out.
It can be difficult to think about all of the scenarios that could happen to a loved one or ourselves. However, the above forms help ensure that our families know our wishes and help ease the burden on them during an already difficult time.
If you don’t have a will or it hasn’t been updated in years, we’d love to help. Please contact us so we can get started.