Wills and Probate
Introduction to Wills, Statutory Durable Power of Attorney, also known as a General Power of Attorney, Medical Power of Attorney, HIPAA Release, also known as a Medical Information Release, and Living Will, also known as an Advanced Directive:
On this page, we will try to provide general answers to the following questions:
- Why do I need a Will?
- When should I get a Will?
- Do I need a new Will?
- What is a Statutory Durable Power of Attorney, also known as a General Power of Attorney, and Why do I need one?
- What is a Medical Power of Attorney, and Why do I need one?
- What is a HIPAA Release, also known as a Medical Information Release, and Why do I need one?
- What is a Living Will, also known as an Advanced Directive?
Why do I need a Will? There are three important reasons that you want to have, and in fact need, a Will: 1) to insure that your wishes are carried out when you pass away which can be enforced by a court of law, if necessary; 2) to avoid disputes amongst loved ones, even well-meaning ones, after your passing away which will only make a bad situation worse; and 3) avoiding paying thousands, and potentially tens of thousands, of dollars in attorney’s fees for a court to make the decisions that you could have made for a relatively small amount of money—decisions which you may never have agreed to were you alive. In short, a Will allows you to designate, amongst other things, who you want your property to be given to when you pass away, who will handle your estate and affairs when you die (also known as an executor), and who you want to designate to be the guardian of your children (if their other parent does not survive you). Of course, there are many myths and misconceptions that people have regarding Wills. For example, many people believe that they do not need a Will because they do not own very much property; they are still young with a long life ahead of them; or they have told their friends and loved ones their wishes and that everyone, including a probate court, must respect these wishes. Unfortunately, these myths and misconceptions are a recipe for disaster. Consider this common fact situation: A 40-year old man dies. He had two children with his first wife. When she died, he re-married. The man purchased a house with his second wife. The man’s paychecks are deposited into his separate bank account because he never got around to adding his new wife on the account. When the man dies, his new wife will not be able to write checks on his account to pay bills because she is not a signatory on the account. When she goes to the bank to withdraw the money in his account, the bank will not allow her to do so because her name is not on the account. The bank refuses to accept anything but a court order from a probate court designating the new wife as the representative of the estate of her dead husband before they will release any money in the bank account to her. The man’s children have formed a bond with the new wife; however, the grandparents do not like the new wife. The man told his new wife before he died that he wanted her to take care of the children if anything happened to him. Unfortunately, the man did not tell the children’s grandparents that he wanted the new wife to be the guardians of the children upon his death. What happens now? If the man had a basic Texas Will designating the new wife as the representative of the estate (i.e., the executor), guardian of the children, and recipient of his entire estate, which was signed before two qualified witnesses, the Will could be probated relatively easily and inexpensively with the new wife being designated as the executor, permitting her to access the money in the bank account; the children would have a guardian to take care of them whom the man wanted to take care of them; and title to the house could be transferred to the wife. Without a Will, the process for sorting out all of the foregoing problems just got a lot more difficult and a lot more expensive. An attorney will have to file an application with a court seeking to have the new wife designated as the representative of the estate. The court may not allow the estate to be administered independently, which can mean that every time a decision affecting the estate has to be made an attorney will have to file a motion and have a hearing so that an order can be entered permitting the action that is requested to be taken. Worse, the court making the various designations that must be made will be doing so without any direction from the deceased. In some situations, testimony relating to what the deceased told someone before he died may not be admissible, preventing the court from relying upon it when a decision. In other words, the court may wind up doing something that the deceased would never have wanted. This scenario is far more common than you might think. The best way to avoid placing such a burden on your loved ones when you pass away is to get a Will.
When should I get a Will? You should get a Will as soon as possible. Many people believe they have time to get a Will and simply put the matter off. You should not fall into this trap. At Alagood & Cartwright, P.C., we strive to make the process as simple, affordable, and economical, as possible. We provide a simple Questionnaire for you to complete. Your answers can then be e-mailed or faxed. If there are any questions about your answers, we can discuss this over the phone or by e-mail. A draft of your Will can then be e-mailed or faxed to you for your review. All changes can be handled by e-mail or fax. We can then set up a meeting at your convenience to sign the Will. Importantly, the cost of a simple Will, with no specific gifts being made by you (e.g., my diamond broach to my Aunt Betty), is a flat fee and is very affordable and economical.
Do I need a new Will? If you already have a Will, the question is often asked whether I need a new one?Generally speaking, if a Will is properly prepared, you should not have to get a new one. However, as you know, life changes pretty quickly. For example, people get divorced, new children are born, persons you designated as guardians for your children move away or they get too old to act as guardians or their health deteriorates making them unable to act. These are only some of the numerous life changes that can occur which may trigger a need for your Will to be reviewed and updated. Alagood & Cartwright, P.C. is available for you to contact and assist you in making this decision.
What is a Statutory Durable Power of Attorney, also known as a General Power of Attorney, and Why do I need one? A Statutory Durable Power of Attorney, also known as a General Power of Attorney, is a document wherein you designate a person to act on your behalf in as many areas of your affairs as you want, including real estate, banking, contracts, stocks and bonds, and insurance transactions. (A Statutory Durable Power of Attorney, however, will not allow your designee to make healthcare decisions for you: for that you will need a Medical Power of Attorney). Importantly, you control not only the scope of powers that you can grant but also when the power of attorney becomes effective and the length of time it remains in effect. For example, you may want it to become effective immediately (e.g., if you were an active duty military member being deployed and you wanted to give your spouse authority to act on your behalf, or you are older and you want a child who is taking care of you to act on your behalf). However, you can also make the power of attorney effective only when you become incapacitated and can no longer act on your own behalf. In this situation, a Statutory Durable Power of Attorney can allow the person you designate to pay your bills while you are sick, and take care of the day-to-day activities that you will need handled while you are in the hospital. If your incapacity lasts for any period of time the Statutory Durable Power of Attorney could save you thousands of dollars in attorney’s fees to obtain the necessary orders from a probate court to permit the same activity the power of attorney would grant. At Alagood Cartwright Burke PC, we can prepare a Statutory Durable Power of Attorney for you at an affordable and economical price.
What is a Medical Power of Attorney and Why do I need one? A Medical Power of Attorney is a document wherein you designate a person to make medical and healthcare decisions for you. Although you can typically make the Medical Power of Attorney effective for whenever you like, most persons place an instruction in the Medical Power of Attorney that it takes effect only if they become unable to make their own healthcare decisions and such condition is certified in writing by their physician. You need a Medical Power of Attorney because it is a simple, cost effective way to have persons that you trust make healthcare decisions for you when you are unable to do so. Failing to have one may require that a court enter an order designating someone to make such decisions for you, which can thousands of dollars and may result in someone that you did not want, or someone you do not even know, making healthcare decisions for you. At Alagood Cartwright Burke, PC, we can prepare a Medical Power of Attorney for you at an affordable and economical price.
What is a HIPAA Release, also known as a Medical Information Release, and Why do I need one? HIPAA stands for “Insurance Portability Act”. Generally speaking, HIPAA bars a healthcare provider, including hospitals and physicians, from releasing your personal medical information to others without your written permission. Under normal circumstances, you have ample time to determine if you want such information to be disclosed and designate to whom you want to have it disclosed to. A common problem that arises, however, is when you are injured and you are unable to make such designations and give consent. In these situations, HIPAA’s stringent requirements can cause significant frustration and heartache to loved ones and friends who you may want the hospital or your physician to communicate with but cannot because HIPAA laws have not been complied with. To avoid this problem, you can sign a HIPAA Release, also known as a Medical Information Release, which grants healthcare providers authority to speak with persons that you designate about your personal medical information. At Alagood Cartwright Burke PC, we can prepare a HIPAA Release for an affordable and economical price so that you are not caught in this situation.
What is a Living Will, also known as an Advanced Directive, and Why do I need one? A Living Will helps you to communicate your wishes about medical treatment at some time in the future when you are unable to make your wishes known because of illness or injury. In a Living Will, if you have a terminal disease or medical condition, or an irreversible medical condition, you can designate whether you want all treatments to be discontinued except those needed to keep you comfortable, or whether you want to be kept alive using available life-sustaining treatments. At Alagood Cartwright Burke, PC, we can prepare an Advanced Directive for an affordable and economical price.