Texas Estate Planning & Probate FAQs

A durable power of attorney is a written document that is generally used to make plans for the care of the finances, investments, and property of the principal in the event the principal is still living, but is no longer able to handle their financial affairs. It applies only to financial matters and can be helpful to older adults who want and need a trusted person to act on their behalf.

The powers that can be granted to the agent are as follows, but can be restricted by the principal:

• Real property transactions;
• Tangible personal property transactions;
• Stock and bond transactions;
• Commodity and options transactions;
• Banking and other financial institution transactions;
• Business operating transactions;
• Insurance and annuity transactions;
• Estate, trust, and other beneficiary transactions;
• Claims and litigation;
• Personal and family maintenance;
• Benefits from social security, Medicare, Medicaid, or other governmental programs or civil or military service;
• Retirement plan transactions;
• Tax matters

Who Can Be My Agent?

Your agent can be anyone you trust implicitly to act in your best interest. It could be an adult family member, an adult friend, or even a professional fiduciary if there is no individual you can rely on.

By granting this power of attorney, you can avoid the need for a court-appointed guardian to manage your affairs if you become incapacitated. But because your agent will have significant powers, it is important to select someone who you trust implicitly to act in your best interests as your agent, such as a spouse, family member, or close friend.

What is the duration of a durable power of attorney?

It is called “durable” because it does not terminate if you become disabled or incapacitated; and does not lapse because of the passage of time unless it specifically states a time limit.

However, a power of attorney will expire when you die. After your death, your agent will no longer have the power to act on your behalf.

A Texas medical power of attorney is a document that allows you, the principal, to designate a trusted family member or friend to make medical decisions for you if you become unconscious or mentally incapable of making those decisions for yourself.

The person you designate to make medical decisions for you is called an agent. The medical power of attorney gives your agent broad power to make any health care decisions you could have made if you were not incapacitated, unless you specifically restrict his or her authority.

Medical powers of attorney are not just for the elderly. Unexpected injuries or illness can occur at any age, so all adults should have one in place.

When Does a Medical Power of Attorney Become Effective?

The medical power of attorney becomes effective immediately after you execute it and deliver it to your agent. It is effective indefinitely unless it contains a specific termination date, you revoke it.

If the medical power of attorney has a specific termination date, but you are incompetent on that date, the medical power of attorney continues to be effective until you become competent.

When Does the Agent Have Authority to Act?

As long as you are able to make medical decisions for yourself, you are the one in control. However, in the event that you cannot make these decisions, your “agent” can legally make medical decisions for you.

A medical power of attorney authorizes your agent to act on your behalf only after your attending physician certifies in writing and files the certification in your medical records that based on his reasonable medical judgment, you are incompetent.

Regardless of the existence of a medical power of attorney or the declaration of incompetence, the statutes specify no medical provider can give or withhold treatment from you if you object.

By Paul Owens

What does Letters Testamentary mean? And why is it not Letters OF Testamentary? This term may seem foreign to you, but it’s actually one of the more basic estate planning documents. As for the latter question, I really don’t know why it’s not Letters OF Testamentary. I guess attorneys just want to make things difficult.

Letters Testamentary/Letters of Administration: What Is It?

Letters Testamentary, similar to Letters of Administration, is a probate Court-issued document that authorizes a person to act as an Executor or Administrator of an estate. This Court Order gives the executor the authority to distribute the estate appropriately pursuant to the decedent’s wishes. Letters Testamentary are issued by the Court when there is a valid Will. Letters of Administration are issued by the Court when there is NO Will or if there is a Will, but it has a defect in it. Letters of Administration provide similar authority as Letters Testamentary. Letters Testamentary is basically a Court order blessing the Executor to handle the business of the deceased.

Who Needs It and Why?

Letters Testamentary are needed by anyone who is trying to settle a decedent’s estate, which can include paying the decedent’s creditors and distributing the estate’s assets to heirs and beneficiaries. For example, if someone dies leaving money in their bank account without a beneficiary designation, the bank will not release the funds from the account without Letters Testamentary. Again, these Letters are issued by a Court order which gives the Executor or Administrator the authority to control the estate’s assets, and the bank may then act upon the Executor’s instructions. Another example would be; what happens to a decedent’s residence when they die? If a decedent had a Will and the home was to be passed to beneficiaries, Letters Testamentary would provide the Executor the authority to transfer the property in accordance with the Will’s instructions. Or, if the Will specified that the home was to be sold and the proceeds distributed to the beneficiaries named in the Will, Letters Testamentary would provide authority to sell the property and distribute the proceeds.

How To Obtain Letters Testamentary in Texas

To obtain Letters Testamentary in Texas, an eligible person must apply to the appropriate probate Court, which is the county in which the decedent resided upon their passing. In order to petition the Court, an application to probate must be submitted, along with the original Will of the deceased, within four years from the date of death. There are several additional steps that the probate attorney typically handles; these steps can include proving that the Will is the original and final Will of the deceased, posting notice of the probate for 10 days (this notice period allows anyone who wishes to contest the Will to come forward; if no one contests the Will, the matter can move forward with a hearing), attend a hearing in Probate Court, provide notice to Creditors, provide an Inventory to the Court, and send notice to the beneficiaries, among other steps that may be needed particular to the situation.

The time it takes to obtain Letters Testamentary in Texas varies depending on the accuracy and completeness of the Will that is submitted to Probate Court, the Court’s availability, and the complexity of the estate administration. Fortunately, Texas has a very efficient probate process. If you have a valid Will, Letters Testamentary are usually easily obtainable, if you have an experienced probate attorney.

Did you know the third week of October is National Estate Planning Awareness Week? Millennials are a large demographic that haven’t gotten their Estate Plan in order; Estate Planning is not something you can afford to put off until tomorrow…

1. 34% mentioned having a child.
2. 9% noted the purchase of a home.
3. 8% experienced an increase in income or net worth.
4. 11% were prompted by the loss of a family member.

By Paul B. Owens

Most Estate Planning Attorneys are always telling you why you MUST have an Estate plan. Well, I want to tell you why you should NOT have an estate plan.

1. You really like you hard earned money going to lawyers and Court costs.

If you don't get an estate plan done by a qualified attorney, there is a good chance that the online Will that “saved" you a few hundred dollars, will now cost thousands of dollars to fix. Or if you don't have a Will, the Court will have to appoint an independent attorney to verify your heirs. This independent attorney will be paid by your assets and will most definitely cost more than your average estate plan.

2. You are okay with the government deciding who is going to get your money

Although you might think having the government decide how to distribute your money isn't as bad as it sounds.

If you don't have an estate plan, an elected judge is now making decisions for you. This Judge will dictate the level of care you will be receiving and how much will be spent on your ongoing care. Your loved ones can only make recommendations, but the Judge will ultimately decide.

3. You want to make it as difficult as possible for your family when you get sick.

Not having an estate plan will make it challenging for your family. They will have to go through a long waiting period and pay more taxes than you may think. Not having an estate plan guarantees that your assets will have to go through Probate. If you don't do any planning, this will cause headaches and heartaches for your family. Not having an estate plan will lead to arguments over the type of care you should receive, the location you receive the care, and when to discontinue the care.

4. You think the government is better at deciding how to spend your money.

One of the results of letting the government decide how to spend your money is that the government may receive a more significant portion of your money than you had anticipated. If you try to gift your assets while you are living, this could lead to a gift tax that is substantially more than if someone inherited the same asset.

5. And you really like to see your family fight.

The main reason to have an estate plan is to make sure to you avoid conflict within your family. When there isn't a good estate plan in place, family members will have to go through a long waiting period because of Probate or contested litigation based upon disagreements. This can be avoided when you place a trusted person in charge of your estate.

You may think you are saving time and a few bucks by not reaching out to an attorney to create an estate plan. But in reality, you will be wasting more time and money by not doing so. Although we don't know what life situations could happen, having an estate plan will avoid many issues along the way. Creating an estate plan will save you money, time and family stress.