3 Things that Prompt People to Make Wills and 4 Things to Think About For Your Texas Will
Everyone should have a will. And if you don’t have a will you should be prepared to explain what you have otherwise done to protect your assets from the potential for Medicare/Medicaid recovery against your estate for unanticipated end-stage medical expense.
How Young is too Young and How Old is too Old?At the age of 18 in Texas you are allowed to enter into contracts. That means you should also make a will. The best practice would, therefore, on your 18th birthday go down and meet with your lawyer and prepare your Last Will and Testament, discuss any ancillary documents, and then put it safely and peacefully out of your mind.
I am not so naive as to think that has ever been done. If you did this, please reach out to me as I would love to hear your story.
Alternatively, I see folks in my office after a few triggering events that drive home the need:I just had children and realize I now have to plan for their future.
I just had an illness and realize I am mortal.
I heard about Medicare and Medicaid Recovery and that scares me because I want to leave my property to my kids or other heirs.
The above realizations typically drive people into my office with a tinge of anxiety. The purpose of this is to drive you into my office to make a plan before that tinge of anxiety hits you and so that when one of the above strikes your brain you can easily say to yourself, "I'm covered and my family has a plan."
In making a will you will typically decide on the following:1. Executor(s). This is the person in charge of carrying out their wishes. They will attend a very simple probate hearing and then administer the estate consistent with your wishes. You'll want 3
good names, ideally.
2. Specific Bequests. Specific property left to specific people. These bequests go to the named beneficiaries "off the top" after taxes and debts are paid. These bequests are not necessary if
you wish for your entire estate to pass in percentages no matter what you may own at the time of your passing.
3. Primary Bequest. Where does the rest of my property go that I have not named in a specific bequest?
4. Contingent Bequests. What happens if the people I leave my estate to predecease me? Their share to their kids or heirs or their share to other beneficiaries named in your will? If any minors are named as beneficiaries you will also need to decide who will serve as Trustee to watch over the minor's property until she becomes an age certain as expressed in the will that is over 18.
At times our office also has you consider the following documents where appropriate:Designation of Guardian in Advance of Need for Minor Children,
Power of Attorney,
Power of Attorney - Medical Only,
Directive to Physicians or Living Will.
ConclusionThe unfortunate result of not having a will is that if there is property in the estate that must be administered and distributed to heirs then that may create a necessity for an administration as opposed to a simple probate proceeding. An administration is more costly because it requires more work by the attorney and because the Court by statute must appoint another special attorney ad litem to make a search for any potential unknown heirs, even when it is clear there are none. With an administration, there is also no guarantee your specific wishes will be carried out. Instead, boilerplate provisions in the Texas Estates Code become the directive as to how to divide your property. To avoid this wasted expense and effort and to ensure your plan is carried out it is best to make a plan, execute the plan, and then put it out of your mind.