Wills, Estates, & Probate

INTRODUCTION

Although every one will become ill, and pass away at some point, many people do not take the proper steps to ensure that they and their property are properly protected. This is unfortunate, because failing to appoint someone to help you in an emergency, or to identify how to dispose of your assets can lead to serious confusion and fighting among your loved ones. It is all the more regrettable when you realize that it only takes a few hours out of your time and a few hundred dollars to avoid all these problems.

Estate and health care planning are important tools in ensuring that your financial, legal and health care decisions are carried out in a manner that you deem appropriate. If you do not make these decision in advance and put them in writing, the government or other family members may end up making these decisions for you. The decisions these people make may not be what you wanted or intended. Even if you have expressed your wishes to loved ones, there is no guarantee that they will be able to carry them out if they do not have the legal authority to do so.

Despite the importance of these decisions, many people do not take the time to get their legal planning documents in order. Some may delay out of simple procrastination. Others may be confused by the process and think it will take too much time or be too costly to consult an attorney. Some try to handle the process on their own, but may be relying on forms that are out of date, unenforceable, or simply not the right ones for what they need done. Furthermore, the average person needs to understand what all their alternatives are before they can make an informed decision on what type of planning is necessary, and what forms are appropriate for their unique situation.

If done properly and with the help of a licensed professional, the process is not all that time consuming or costly. A simple Will, and Power of Attorney documents can usually be prepared for less than the cost most people spend on a few months of health or car insurance. It is crucial not to delay such a decision until the day when a crisis hits you, because then you may not be in a position to actually make such decisions or have such documents prepared for you.

BASIC ESTATE PLANNING DOCUMENTS

There are really 5 basic forms that the average person needs to make sure their health care, financial and inheritance decisions are carried out according to their wishes. These are outlined below:

          WILL

A Will is the basic document that details how your assets will be disposed of upon your death. You can specify who your heirs are; who gets what; and who is in charge of handling your property. The property that is to be distributed upon your death is referred to as your "Estate."

You should be very careful in picking the person you want to put in charge of your estate. It should be someone you have complete faith in. This person is called the "Executor" of your estate." Usually, you want to put in 1 or 2 alternate Executors in case something happens to one of the other person you put in charge.

You can specify who gets what part of your estate by making a general or specific "Bequest". The people who are to receive a bequest are called the "Beneficiaries."

Once the Will is filled out an notarized, you should make sure you keep the original in a safe place. It can be filed with the local Bexar County Probate Clerk for a small fee. You can list the names of the people authorized to retrieve it upon your death.

A Trust can be added to the Will to allow for gradual distribution of an inheritance to a minor instead of giving them all the proceeds at once.

          FINANCIAL POWER OF ATTORNEY

This is the basic document that allows you to designate someone else to handle all your financial decisions in case you become incapacitated, and unable to make decisions for yourself. If you regain your mental capacity, then the power ceases to exist.

You can place limits on the types of transactions the person is allowed to engage in if you prefer. This power is no longer effective when a person dies. When that happens, the Will determines who is in charge of handling their proeprty

          MEDICAL POWER OF ATTORNEY

This is the basic document that allows you to designate someone else to make crucial medical decisions for you in the event you become incapacitated and are not able to make decisions for yourself.

          ADVANCED DIRECTIVE

This document allows you to specify in advance whether or not you want to be kept on life support in certain situations. The 2 situations are:
(1) you are suffering from a terminal illness; and (2) you have suffered such severe brain damage that you are not expected to ever recover consciousness. In both scenarios the doctors will only act on this document if you are not able to express you wishes to them directly.

          HIPAA RELEASE FORM

This document allows you to specify who can have access to your medical records. You will typically want to name the person who you gave your medical Power of Attorney too. But you may also want to add some other people as well, as a backup.

THE PROBATE PROCESS

If a person has properly prepared their documents in advance, then the process of handling their affairs when they die is relatively easy. The whole process can usually be completed in just a few months with 1 court hearing. However, if they have not properly prepared their paperwork, then the process can be much more complicated and take much longer.

Even when their paperwork is filled out properly, there is always the chance that one of their relatives may want to contest their wishes. Someone may argue that the deceased's wishes were actually different that what the Will says. They may also argue that someone pressured the deceased into signing the Will, or that the deceased was not of sound mind when they signed the Will.

Unless they have some pretty solid grounds to prove these allegations, a person who wants to contest a properly prepared Will is not going to win. However, they can drag the process out for quite some time and run up the costs of the probating the estate. If this happens to the estate of one of your loved ones, we can help.

TRUSTS

When a person sets up a Will, they may also want to set up a "Trust". as well. A "Trust" document puts money aside for a person so that they do not get all the proceeds at once. They only get a little bit at a time so they do not go out and spend it all at once.

The person who sets up the Trust is called the "Settlor." The person in charge of taking care of the proceeds is called the "Trustee." The person who is supposed to receive the Trust proceeds is called the "Beneficiary."

This is commonly done in cases involving minors. However, it is also fairly common in cases where people are over 18, but still not responsible enough to handle all their inheritance money in 1 lump sum. A Trust can be set up to give them 1/3 of their share at age 18; 1/3 at age 21; and the final 1/3 at age 25. Other configurations can be set up as well, depending on the "settlor's" wishes.

GUARDIANSHIPS

Some people become very ill and permanently unable to take care of themselves. They may start suffering from dementia, or Alzheimer's disease. If this happens, and they have not filled out a Medical or Financial Power of Attorney naming someone else to help them with their affairs, it can be very difficult for them. Unfortunately, by the time someone becomes mentally incompetent, it is too late to have them fill out these documents. They lack the legal capacity to do so.

The most common solution in these cases is to file a Petition to Establish Guardianship over them. This is usually done by a family member. In order to get a Guardianship approved, a person has to post bond, and hire a Guardian Ad Litem to help look out for the incompetent person's interest. This process usually takes a few months.

Once the process if complete, the person who sought to be appointed as Guardian can then take charge of the person's affairs. The incompetent person is referred to as a "Ward" of the Guardian.

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