Personal Estate Planning
Please use our documents in the links below to take you through the important decisions you must make in preparing your will:
- General Estate Planning Questionnaire
- Estate Planning for Single Persons
- Estate Planning for Married Persons
Why do I need a Will?
To establish who gets what and who is in charge of distributing your property
If you own any real estate, or have any children it is critical that you make your Will in Texas. Not having a Will can result in unintended consequences. The State of Texas will decide how your property is divided up, not you or you family. Under Texas law, if you do not make your Will your real estate and personal property does NOT automatically go to your spouse upon your death.
Writing your Will lets you call the shots on who will receive your property, in what amounts, and when. In addition, you can designate who your Executor is. The “Executor” is the person in legally in charge of carrying out the instructions in your Will. If you have children under the age of 18, you need to appoint “guardian” -- someone responsible of the personal and financial well-being of that child or children. Minor children cannot legally inherit in Texas, and expensive legal headaches for a court-supervised guardianship result if you have not appointed a guardian.
Because advance planning pays off
The probating of your estate always costs WAY more money if you die without preparing your Will ahead of time. Having a properly drafted Will means the estate can be distributed without Court supervision, once an “Independent Executor” has been appointed.
To save or even eliminate Estate taxes
Under current law, the Federal Estate tax was repealed on January 1, 2010 but is scheduled to come back on January 1, 2011, possibly with a $1,000,000 exemption and 55% tax rate. That’s right – while the federal estate tax had completely disappeared, it is scheduled to come back in 2011. President Obama was against full repeal of the federal estate tax and instead favored a $3,500,000 exemption and 45% tax rate, which happen to be the exact same numbers that took effect in 2009. With the current economic crisis in play, no one knows exactly what the Fed will do, but it is likely some sort of Federal Estate Tax will be coming back very soon. If your gross estate (including all of your property and your life insurance) will be over $1,000,000 in 2011 tax planning should be considered. To accomplish this an attorney trained in preparing Wills for Taxable Estates must draft your Will with the proper tax language. If your estate’s value is under this amount, you will not be required to pay any federal or Texas estate taxes.
How much does making my Will cost?
Generally, from $400 to $550 for a properly drafted “simple Will”, depending on your situation. If your situation includes a divorce, children from prior marriages, or needs special trusts within the Will, it is not a “simple Will” as additional planning, time and cost are required. Taxable estate Wills can cost anywhere from $750. to $2500.. After filling out the questionnaire on this site (click here), I can give you the projected cost of the work before I begin the drafting work.
If your total estate is “taxable” your estate planning will cost more BUT the tax savings will far outweigh the cost of properly preparing the documents. In fact, the right planning can eliminate or minimize your estate taxes, and save you many times the legal costs.
Are there other "Essential Documents" I need?
Yes! Here is a list and description of them:
1. Directive to Physicians
Sometimes called a “Living Will”, this instructs your doctors to “pull the plug”, and not continue artificial methods to extend the natural process of dying if you have a terminal condition. You can request that your “terminal condition” be certified to by your physician, and you can customize it in other ways if you wish.
2. Durable Power of Attorney for Health Care
This gives the person you appoint the authority to make any and all health care decisions according to your wishes, including moral and religious beliefs, when you are no longer able to make them yourself. Unlike the “living will” this document comes into play when you are unconscious and unable to make critical health decisions (like surgery) for example. It is not designed for a situation where you have a terminal condition.
3. Durable General Power of Attorney
This allows you to appoint someone to act on your behalf in the event you are disabled and cannot carry out your affairs. This document mainly authorizes someone to stand in your shoes on financial matters. It gives the person you appoint sweeping powers to stand in your shoes for all financial dealings, so the appointee much be chosen carefully.
4. Declaration of Guardian
This lets you designate who you wish to become the legal guardian of your person if you are disabled for a long period of time. The difference between this and number 3 above, is that the guardian appointed would be concerned with your health, safety, living arrangements. The Durable General Power of Attorney is for financial and property matters. This document is often used to help you designate family members you do NOT want to serve as your guardian (crazy Uncle Harry), and it is legally binding.
I strongly recommend you have ALL FOUR of these documents prepared, in addition to your Will, as a minimum estate plan.
5. Anatomical Gifts
Three interesting facts about organ donation:
- All mainstream organized religions approve of organ and tissue donation and consider it an act of charity.
- Donation costs nothing to the donor’s family or estate.
- As many as 85 people can benefit from one tissue donor.
If you do NOT want to be an organ or tissue donor, there is a form I can prepare to state your wishes, but it is important that your family members get a copy and that they clearly understand your wishes. If you DO want to be a donor, the best approach is to register as a donor in person at a local DPS office, or by mail, fax or online. Online registration is fairly new, and happens through a website run by the "Glenda Dawson Donate Life - Texas Registry" operated by the Texas Dept of State Health Services.
- You fill out the online registration form at www.donatelifetexas.org
- You will receive a confirmation letter and registration card within 10 business days. You and two witnesses must sign the letter
- Return the signed, witnessed letter to the Registry in the postage-paid envelope they provide. Keep the registration card and carry it with you
- Finally, you inform your family that you have become a donor. State law is clear that when you register by filing a signed and witnessed declaration, your donation "shall be honored without obtaining the approval or consent of any other person." When a person has not signed a donor declaration but dies under circumstances that allow donation, the family will be asked for permission. If your family knows of and supports your intentions, they are more likely to react sympathetically at the time of your death
Information about Wills
Last Will and Testament
A Last Will and Testament is a legal document that allows you to choose who will receive your property after your death. Many people use their Last Will to name a Legal Guardian for their minor children. Others use a Last Will to give specific items of property to specific individuals. At the Law Offices of Daniel Bawden & Associates,, we will work with you to understand your desires for the distribution of your property and the naming of a Legal Guardian.
Our firm understands that each client’s needs are different. The Law Offices of Daniel D. Bawden & Associates will take the time to get to know your story and develop a trusting relationship. Contact us today to schedule a free initial consultation about drafting your complex or simple Will.
Why a Last Will is needed?
A Last Will provides your family and the Probate Court with explicit instructions about the distribution of your property upon your death – but it does more than that. A properly drafted and executed Last Will notifies your family of:
- Who you want that property to be distributed to
- The fractions of distribution
- The people you want to name as Legal Guardian of your minor children
So…. what happens if you die without a Will? See the TEXAS DESCENT AND DISTRIBUTION chart
Advice for Selecting Executors
Your Executor is the person, or entity, you choose to “execute” the terms of your last will and testament. In Texas, the role of the Executor is an extremely important fiduciary position that carries with it a high level of responsibility. The Executor is empowered with the abilities to distribute your estate, pay creditors and handle other probate matters related to your last will and testament.
So, who do you choose for such an important position? The person must be over the age of 18 and not otherwise prohibited from acting as Executor under Texas law. Typically, you will pick a family member you trust for this position. But, you can also appoint an entity, like a bank trust department or a law firm, to act as the Executor. Usually, you cannot name your financial advisor or stock broker to that role because of a conflict of interest, but you may be able to name your accountant. If you are thinking of doing so you MUST contact them in advance and ask them if they can act in that role.
In Texas, there are many different ways of probating a Will. There are Applications to probate a last will and testament (independently or dependently), Small Estate Affidavits, Applications to probate the will as a Muniment of Title, and more. The good news is your Executor doesn't typically choose which method is used; The better news is an Executor in Texas is required to hire an attorney to assist with the probate of your will. Knowing this may help you choose the person you want to act as Executor when you make your will.
You should also think about the following:.
- The typical probate in Texas takes less than 2 or 3 months to complete
- The person named as Executor does not have to live in state, and a standard probate can often be done without having the Executor come to court (although that option is more expensive and not always the best idea)
- The fee paid to the attorney for the Executor is most often paid by your estate, not the Executor
- The Executor typically is entitled to a reasonable fee, although most non-corporate Executors do not accept a fee (they are also entitled to reimbursement for estate expenses)
- The Executor should have good financial sense, but they do not have to be an accountant possibilities of financial gain from your estate
- Naming an alternate Executor is always a good idea
- It is generally a bad idea to name Co-Executors in your last will and testament form
- Your Executor does NOT have to be the same person or entity you name as Trustee
- You can name your own adult child to be your Executor, but you will want to seriously consider his or her abilities and emotional strength in handling your estate
- You can name your spouse to be your Executor, but, although it is a common choice, you may consider whether or not you want him or her to be acting in that role at a time when he or she is grieving
- If your estate is very large you may consider a corporate Executor (bank trust department) as the Executor in your Will because of the financial strength of a corporate Executor, the lack of financial interest in the overall distribution of your estate and highly level of scrutiny when your estate is distributed.
Phone: (713) 723-8850
Fax: (713) 729-7125
Dan@DanielBawdenLaw.com
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