In order of importance, they are:
- Will
- Medical Power of Attorney/Designation of Health Care Agent; and
- General Statutory Durable Power of Attorney
Will
A Will is the document that you prepare to say who you want to receive
your property at death, and who you want to handle your estate. If you
have minor children, you would also want to name the person that you want
to be the guardian of the children, and the trustee of the minor’s trust
(minors are not able to take gifts directly; the gifts need to be held
in trust for them until they are adults).
Click here for more information about preparing a basic Texas will.
Medical Power of Attorney/Designation of Health Care Agent
A Medical Power of Attorney/Designation of Health Care Agent is a document
that allows you to name an agent to make health care decisions for you,
if you become unable to make those decisions yourself. Without this document,
neither your spouse nor your children have any authority to make health
care decisions for you, except in an emergency, without a court appointing
them as your guardian.
Statutory Durable Power of Attorney
The general Statutory Durable Power of Attorney is a document that allows
you to name an agent, or “attorney-in-fact”, to make other non-health
care decisions for you. This would include things like paying your bills,
and generally handling your affairs. You can make this effective immediately,
or reserve those powers until you become unable to handle your own affairs.
My husband and I both have children from a previous marriage. He has one and I have 2. We are in the process of putting together our wills. We are legal residents of Texas and also have a home that we purchased after we were married in Louisiana. My name is on the deed for the home. Our wish is to leave the entirety (personal property, cars boats, financials, ect) of our estate to each other, then spit it between the children after we are both gone. How specific do we need to be in the will if we want to leave everything to the surviving spouse? We have assigned a percentage of our life insurance for the children to receive now as their portion till we both pass. How does having a home in another state affect these wills? In addition, if we move back to Louisiana or another state, do we need to update the wills?
Kind regards,
Tina
Tina, from what you have written, it sounds like you are trying to draft your Wills yourself. I strongly recommend that you hire an attorney that handles Wills and Estate Planning. Things can get very complicated, especially with a blended family.
Texas is a community property state, so it doesn’t matter how property is titled. If it is acquired during marriage, the presumption is that it is community property, unless you are able to prove by “clear and convincing evidence” (a higher burden that preponderance of the evidence) that it was by gift, devise or descent. Again, if you are trying to do this yourself, and you have don’t it incorrectly, no one is likely to know until you have died and try to probate it. It will be a little too late to go back and fix it then.
I always recommend that you spend the money to have an estate planning attorney in your state draft your documents, so that you know that they have been done properly. Then have an attorney review them if you ever move to another state. If it was prepared as a valid Will in Texas, it will be valid in any other state. However, the laws of each state are different, so there may be benefits to having a Will drafted under the laws of the new state. For example, in some states, they do not allow an “Independent” administration, which is a probate free from supervision by the court. Texas does allow you to provide for an independent administration, which can save the estate thousands of dollars in probate costs. So, a Will from another state that only has a dependent court-supervised administration will be effective here in Texas, but will cost a lot more to probate. They would save a lot of money by having a proper Texas Will drawn up. Hope that helps.
Between hurricane Charley and this last down hill we had with savings accounts and property going so low..we had to put our home in a reverse mortgage. We do not have a lot but do not want our 3 children to pay probate. We do have some life insurance that we are hoping we can leave to them since we do not have anything else beside what is in our home. I have read into making up our own will. It makes me feel uneasy but we don’t feel we can afford an attorney. What is your best suggestion.
Thank You Sincerely,
Phyllis & Dave
If you set up your life insurance to pay your children as beneficiaries, it will pass to them directly by contract, and not as part of your probate estate. If there will be equity left in the house that the reverse mortgage is on, some type of action will likely be needed in probate to transfer your estates’ interests to your children so that they can try to sell the house before the reverse mortgage forecloses. I can tell you from my experience over the last 26+ years that it is much less expensive for your children to probate a Will that was properly prepared by an attorney than some type of “homegrown” Will or Will that was taken off the internet. Most of those have some type of defect, and if it is fixable, it usually takes more time and expense for an attorney to do it in probate than it would have cost if they had just prepared a Will with an attorney initially. Check in your jurisdiction of some organization there provides reduced fee services, or handles pro bono matters.