In 1771, George Washington famously wrote to Harriot Washington, “It is better to offer no excuse than a bad one.” Washington was reminding his niece to think more earnestly about life, but his advice still rings true today, particularly when it is time to plan for serious matters.
More than half of Americans over the age of 55 do not have an estate plan in place. This startling statistic is a significant takeaway from the 2019 Merrill Lynch and Age Wave study Leaving a Legacy: A Lasting Gift to Loved Ones. Even more troubling, only 18% of people over the age of 55 have all of the recommended legacy documents, including a last will and testament, health care directive, and statutory durable power of attorney. So, what are the most common bad excuses for failing to make an estate plan?
“I do not want to think about death.”
No one wants to think about death. It is an uncomfortable subject for almost everyone, but if you fail to plan, your family could suffer major consequences. No one lives forever, but with proper estate planning techniques, you can take care of your loved ones and provide financial and health care decisions if you become incapacitated.
1. Taking care of your loved ones.
If you die without a will in Texas, the Texas law of intestate succession will apply. Texas law, and not your wishes, will determine how a court-appointed representative distributes your estate. To get around this, you can:
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- Validly execute a will.
- Create a revocable trust and transfer your assets to it during your lifetime.
- Add the person you want to inherit your assets as a joint owner.
- Designate the disposition of your assets upon death.
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An experienced attorney with estate planning experience can help you achieve all of this.
2. Detail how you want to be taken care of when you can no longer care for yourself.
Estate planning is not just about who gets your assets when you die; it is also about making your wishes known for your care if you are no longer able to care for or make those decisions for yourself. To avoid guardianship in the event you are incapacitated, you need:
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- A valid statutory durable power of attorney for financial decisions;
- A medical power of attorney; and
- A medical directive or living will (what we call a directive to physicians).
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These documents will allow you to name someone you trust as an agent for these critical decisions and detail your wishes about end of life decisions.
“I only have one child. There is nothing to fight over.”
Avoiding fights over your assets is only one reason to have a plan in place. An estate plan can also provide for a minor child’s physical and financial care, avoid nasty custody battles, and determine how your heirs receive your assets. If both you and your spouse die, who will care for your child? While Texas courts will naturally look to next of kin, what if two sets of grandparents and your sister all want custody? An estate plan can avoid this by appointing a guardian you and your spouse trust in advance.
It is not just the physical custody of a minor child that you need to consider, under Texas law, any minor who inherits assets cannot receive or hold them directly until they reach 18. See Texas Estates Code § 1101, et seq. A Texas court will appoint a guardian to oversee the inheritance until that time. To avoid this you can establish a trust for your child to ensure they receive their inheritance on your terms.
“My estate is not large enough.”
As we have discussed above, estate planning is not just about a will. Estate planning can also provide for minor children, plan for your future medical decisions, and determine how your representative will distribute your assets. In some cases, estate planning can also help you avoid a protracted probate action. Ultimately, estate planning is about ensuring that you do not leave your final affairs to your heirs to untangle. Planning ahead can make a painful, stressful, and costly process much easier for the people who love you.
Call us today to schedule your strategy session with our elder law attorneys to begin planning ahead for your loved ones.
Written by Kimberly Hegwood, an experienced Texas Elder Law and Estate Planning Attorney and the founder of the Hegwood Law Group, PLLC in Houston, Texas. Attorney Hegwood is a Member of the National ElderCare Matters Alliance, and she and her law firm have a Featured Listing on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources to help families plan for and deal with the Issues of Aging.
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