FAQS BASIC ESTATE PLANNING
Everyone needs a basic estate plan. Many of the questions we hear frequently are answered below.
A last will and testament is a document that establishes the names of the persons or entities who will inherit specific assets from you, who will inherit the remainder of the estate if there is any, and who will be in charge of your estate while it is being administered. If you have children, it may also name a guardian for your children and provide that assets be held in a trust for them.
Durable Powers of Attorney are designed to make it possible for an agent to manage your financial affairs. For instance, your agent can be given the power to buy and sell real estate, write checks on your checking account, and sign your tax returns. The powers of the agent can be made effective immediately, or they can be “springing” which means that they become effective in the future if you become incapacitated.
Except to the extent you state otherwise, this document gives the person you name as your agent the authority to make any and all health care decisions for you in accordance with your wishes, including your religious and moral beliefs, when you are no longer capable of making them yourself. Typically, your agent’s authority begins when your doctor certifies that you lack the capacity to make health care decisions, but we can also design it so that the authority begins immediately.
A Directive to Physicians and Family or Surrogates (also known as an Advance Directive or a Living Will) is a document that is designed to communicate your wishes about the level of life-sustaining treatment you desire to be used when you are unable to make your wishes known because of illness or injury.
A HIPPA release is a document that identifies the persons who you will allow to have access to your health care information. This document is important due to a privacy law, known as the Health Insurance Portability and Accountability Act, which makes it difficult for anyone other than you to obtain this type of information.
A Declaration of Guardian in the Event of Later Incapacity or Need of Guardian is a document that states who is requested to be guardian if you should become incapacitated. This includes guardianship of the person (who determines matters such as whether to consent to medical treatment) and guardianship of the estate (who manages your financial affairs). You may also declare that you do not want a particular person to serve in that position.
An Appointment of Agent to Control Disposition of Remains is a document in which you state who will be the person appointed to be in charge of your remains. It states that all decisions made by this agent, including cremation or burial, shall be binding. You can also allow that person to be authorized to make anatomical gifts and to authorize an autopsy.
Estate planning is for adults of all ages, not just for the “retired.” Most people tend to think about estate planning more as they get older. Many of our clients are at the “retirement” stage in their life when they first contact us. A first estate plan at retirement age has its challenges that we are ready to meet. Particular attention is placed on how they will be managing their medical care in the near future. For a young couple or family, planning for the future care of a spouse or children is a high priority. For any age, illness and accidents are hard to predict. With the assistance of an Austin estate planning attorneys at Willi Law Firm, P.C., the sooner you think about estate planning, the more you can protect your estate and your loved ones.
If you don’t have an estate plan, the laws of your state and the court system will decide how to manage your affairs. If you become incapacitated, the court will appoint someone as the guardian of your “estate” to act on your behalf for your finances, like selling your car or your house. The court will also appoint someone to be in charge of your “person.” The guardian of the person will, for example, make medical decisions and decide which nursing home you should live in. The guardian of your estate or of your person may or may not be a member of your family. A guardianship can become expensive and time consuming, it is open to the public, and it can be difficult to end even if you recover.
If you die without an intentional estate plan, your assets will be distributed according to the laws of your state. In many states, if you are married and have children, your spouse and children will each receive a share. That means your spouse could receive only a fraction of your estate, which may not be enough to live on. If you have minor children, the court will control their inheritance. If both parents die (i.e., in a car accident), the court will appoint a guardian without the benefit of your guidance.
You have a choice. With a well thought out estate plan from an Austin estate planning attorney at Willi Law Firm, P.C., you can have matters handled privately by your family.
A will is an instrument that must go through the court’s probate system before its terms are effectuated. Any assets titled in your name or controlled by your will must go through the court’s probate process before they can be distributed to your heirs. The process can become expensive with legal fees, executor fees, and court costs. It can also take anywhere from nine months to two years or longer. Most probate files are open to the public and excluded heirs may apply to seek a share of your estate. In short, the court system, not your family, controls the process.
Jointly-owned property and assets for which you name a beneficiary (for example, life insurance, IRAs, 401(k)s, annuities, etc.) are not controlled by your will and usually will transfer to the new owner or beneficiary without probate. But there are many problems with joint ownership, and avoidance of probate is not guaranteed. For example, if a valid beneficiary is not named, the assets will go through the court’s probate process and will be distributed along with the rest of your estate. If you name a minor as a beneficiary, the court will probably appoint a guardian to manage the funds until the child becomes an adult.
A living trust is a valuable addition to, or even an alternative to, a will. If all of your assets are assigned to the trust prior to death, then you can avoid the court’s probate system entirely. You can also prevent court control of assets when you become incapacitated. You can place all of your assets, even those with beneficiary designations, together into one plan. A living trust provides maximum privacy, is valid regardless of whether you move to another state, and you can amend it at any time.
A living trust can continue to operate after your death. Assets can stay in your living trust, managed by the trustee you selected, until your beneficiaries reach the age you want them to inherit. Even after your death, your living trust can operate to provide for a loved one with special needs, or to protect the assets from beneficiaries’ creditors, divorces, and irresponsible spending.
A living trust is more expensive than a simple will. But considering it can avoid guardianship and probate court proceedings, many people consider it to be a bargain. An Austin estate planning attorney at Willi Law Firm, P.C., can evaluate your situation and advise you on the best way to proceed for your estate.
Imagine watching your loved ones trying to sort through your system of filing without your assistance. What if there was one file, your estate plan, where all of your financial records, titles, and insurance policies could be found if something happened to you? Imagine the relief they will experience when they see that you made things easy for them.
Planning your estate now will help you organize your records, locate titles, review beneficiary designations, and find and correct any errors. For example, errors on titles or beneficiary designations could create problems for your family when you are incapacitated or die. Beneficiary designations may now be out-of-date or otherwise invalid. Naming the wrong beneficiary on a tax-deferred plan can lead to devastating tax consequences. It is much better to take the time to organize and review this now than for your family to pay an attorney to try to fix errors later. With a thorough estate plan from an Austin estate planning attorney at Willi Law Firm, P.C., you will leave your family in the best position to handle your affairs without you.
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We believe each family is unique and that your family dynamics and personal circumstances should be carefully considered when designing your plan.
Our goal is to understand your concerns, your goals, and your family’s needs. Our caring and compassionate approach to these important matters will allow you to comfortably explore your options and make informed decisions.
To provide quality and personalized estate plans which provide families the levels of protection which meet their individual needs. We consistently strive to maintain a highest levels of customer service by remaining attentive to your needs.
We are committed to putting our clients first. Our law firm realizes that clients are entrusting us with matters that are most important to them.
Let us help your family. Please feel free to contact us for a free consultation.
Willi Law Firm, P.C.
9600 Escarpment Blvd.
Ste. 745, PMB 34
Austin, TX 78749-1983
Main: (512) 522-0906
Facsimile: (512) 288-3202
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The attorneys at Willi Law Firm are your Austin, Texas resource for estate planning, wills, living trusts, firearms trusts, powers of attorney, living wills, probate and estate administration, trust administration, special needs trusts, disability planning, Medicaid applications and qualification, long-term care planning, elder law, Medicaid crisis planning, charitable planning, estate tax planning, business and corporate planning, business succession and sales, and asset protection.
Willi Law Firm proudly serves Central Texas individuals and families in the following counties: Bastrop, Blanco, Burnet, Caldwell, Hays, Lampasas, Lee, Travis, and Williamson, and in the following communities: Austin, Bastrop, Brushy Creek, Buda, Burnet, Cedar Park, Driftwood, Dripping Springs, Elgin, Georgetown, Hutto, Jollyville, Kyle, Lakeway, Lago Vista, Lampasas, Leander, Lockhart, Luling, Manchaca, Manor, Marble Falls, Oak Hill, Pfugerville, Rollingwood, Round Rock, San Marcos, Shady Hollow, Spicewood, Taylor, Wells Branch, Westlake, Windemere, and Wimberley.