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5 Common Misconceptions About Texas Probate and Estate Planning

When it comes to estate planning, many people stop short of engaging in the planning process only because they believe in several myths, falsehoods, and general untruths about end-of-life planning. Some of these beliefs are reasonable while some sound downright silly when you stop and think about them. However, when it comes to this subject, we as attorneys know that until a person can feel confident about a plan there is no sense in trying to have him or her move forward. Therefore, our goal in writing today’s blog post is to help provide you with the basic information you need to dispel some of the most well-known myths about estate planning in Texas.

After having read through this blog post, if you have any questions about the material that you have read, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas estate planning or how your family may be impacted by different decisions that you make regarding the creation of a will, trust, or other estate planning vehicle.

Misinformation: Be careful what you read- and where you read it

In this day and age, we know that information is everywhere. In days gone by the problem that many people had to deal with was not enough access to information. Remember having to do a book report in school and our only options were the Encyclopedia Britannica and maybe some Time-Life books on whatever the topic was that you needed to write about? Not exactly the most awe-inspiring list of choices compared to the information that we have at our fingertips today! Keep in mind, however, that compared to generations past what we had access to a generation or two ago was robust.

With the internet everywhere from our schools to our homes to our phones, we know that it is possible to gain a great deal of information very quickly and from sources that we are not readily able to identify as trustworthy or not. As much as we like to think of ourselves as advanced or tech-savvy or whatever term we want to utilize, the reality is that we are not accustomed to having this much access to information. Whether it be information about other people or information about events and issues, too much information is, I believe, a problem for us in our world today.

This does not mean that you should stop trying to access information about subjects that are important to you. Rather, you need to be able to access information that is accurate and relevant to your life. The need for the information hasn’t stopped but the effort that it takes to parse through what you find and locate the needle in the haystack that is relevant to your life may be the more pressing issue for you and me these days. We hope that this blog post is your metaphorical needle in the haystack.

The trouble when it comes to myths about estate planning is that these myths oftentimes completely prevent a person from beginning the process at all. Let’s face it- estate planning is not fun or exciting. It is work. It can be tedious. It is not a good time. However, like a lot of things that we do as adults, it is still essential. So, we grit our teeth and get through it as best we can. When these myths that are out there in the world regarding estate planning slow down the process of beginning to plan your end-of-life circumstances that are when the myths go from being an annoyance to becoming a major problem.

We all need to have an estate plan. Whether you are young or old, rich or not, have a big family or none at all. Having an estate plan is crucial for all of us. If you are a young person, you need an estate plan because you never know when you will need it. We can console ourselves by thinking that because we are young that “our time” will not come for many years. While I hope this is true that is not always the case, unfortunately. We cannot predict when we are going to pass on from this world. With that said, unless you have a plan in place for the end of your life then you are not prepared. The same is true for an older person. The main difference in those circumstances if that an older person is more likely to have a family than a younger person. This only heightens the need for diligent estate planning.

Some of the other myths can trace their roots to movies and television shows that depict the people who create wills and estate plans as being old, rich people. We all know the popular scene from the movies: a rich man has just died. His family sits around in a fancy office or library. Books are on the shelves. Everyone looks nervous. The will is about to be read aloud for the first time by a disinterested lawyer who will be paid a fee for reading this will and then will be out of the lives of all these people immediately afterward.

When the will is read there is much gasping to be heard. The old aristocrat left all his property to his brand new, trophy wife. His children will go wanting. Extended family and charities are the same. The wife will get all his loot and everyone else is left holding an empty bag. What a shame. What we don’t know is that these types of situations do not have the be the norm for several reasons.

The most notable is what we have already discussed today: just because movies and television shows depict everyone with a will as being old does not mean that is true. While it probably is true that more old people than young people have wills, this does not and should not be the case. You need to have a will as soon as you turn 18. It is the smart thing to do and can help your family handle matters related to your passing once you die. Unless you plan on being able to predict exactly when you are going to pass you need to be able to have a will in place ASAP.

Another myth that we can expose from this much-reproduced situation is that the first time your loved ones need to hear from you regarding a will is when you have already passed on. Rather, what you can and should do is plan to have the will read as soon as you have signed it. That way your family will know what to expect with your passing and will not have to come to learn your plans only after you have passed away. Your family should be able to focus on your memory and their mutual grief after you pass away. When you don’t inform them of the contents of your will until after you pass what you are essentially doing is guaranteeing them that they are going to spend important moments after your passing stressing out about the will and whatever you chose to leave (or not leave) to them.

Myth number one: Your estate plan only matters when you die

Your estate plan does not need to be put into effect and then go inside your desk drawer never to be heard from again until after you have passed away. This is, again, a myth that I think television and movies have helped to perpetuate. A situation where you have a will that you loved one created years ago that nobody ever knew about. After he or she passes away the will is found underneath a stack of old papers. Now everyone comes to find out that the old man created a will and it sends everyone into a tizzy.

This is not reality. What is reality is that you can institute changes in your personal life that will go into effect for estate planning purposes much sooner than the date on which you pass away. For example, a living trust is an estate planning instrument that can become effective before the time at which you pass away. The trust can be funded with property that you own and then it can go into effect immediately. The beneficiaries of the trust can be funded with property throughout their lifetime once certain goals or benchmarks are met. Common benchmarks include your children reaching certain ages, graduating from high school or college, and things of this nature. All of this can be done and can stand to benefit your children long before you pass away. You would be able to maintain control over this property, as well.

Creating a power of attorney is a useful tool for medical and other purposes if you become incapacitated. When you are incapacitated, you are unable to make decisions for yourself. As a result, the last thing that you would want to see happen is for you to have something happen to you that you would not have chosen had you been of sound mind. A medical power of attorney names someone in your life to be able to make decisions for you based on your last wishes.

Only rich people create trusts

Again, with the idea that only rich people engage in estate planning. This time the estate planning myth relates to the creation of trusts. Almost everyone, regardless of their income or level of wealth, can stand to benefit from the creation of a trust. One benefit that smaller estates may gain from the creation of a trust is that you can protect your estate from the costs of a probate court given that trust property can pass directly to beneficiaries without first having to go through a will or the probate process. When your estate is small, every dollar counts. You can save your money by creating a trust and funding it with the property.

All you need is a will when it comes to estate planning

Many people out there will simply create a will and then call it a day when it comes to estate planning. While the creation of a will may be enough for some of you reading this blog post, for others it is only the tip of the iceberg. Some people may need to engage in estate planning but not the creation of a will. Let’s consider what a will could do for the small business that you own. While it may be able to confer some benefit to your business it will not go into detail about how matters related to your business should be handled after your passing.

Rather, you can create succession documents and plans that can be utilized for your business after you pass away. These are a combination of estate planning and business documents which take some skill and knowledge to produce. If you think that your family will be left in the cold when it comes to estate planning by not reading aloud your will or doing other activities associated with estate planning, then the same will be true regarding your business.

Medical or end-of-life directives are another type of estate planning or end-of-life planning that you should be aware of. This is something that you can provide to the hospital if you are taken in with a severe condition which would instruct them on end-of-life medical treatment that you would or would not like them to engage in on your behalf. For example, you can instruct your doctor or caregiver to not go to extreme measures to save your life. Or you can insist upon the opposite- whatever you would like.

Creating an end-of-life plan can be done without the assistance of a lawyer with little to no effort

You don’t have to have an estate planning lawyer help you with your estate plan or end-of-life planning. Many people draft their wills, create trusts and engage in end-of-life planning by themselves. However, if this is your plan then I would ask that you consider the following questions. First, do you change the oil on your car yourself? Do you pull your teeth or fill your cavities? What about cutting your grass? There are many jobs or services that we pay other people to do for us. Why? Well, there are a lot of reasons for this but one of the most important is that the people who perform these services for a living are typically very good at doing them. Better than we are. That’s not a knock against us. I bet if we all took a few classes on how to fill a cavity we would get moderately better at performing the task. However, we still would be nowhere better than a dentist at doing it.

Apply the same concept to drafting a will. Yes, there are templates that you can find online for drafting a will. These templates will fill in the details of a will. All you need to do is provide a few names and the scenarios that you want to implement in your life to the website and software and you can have your will in minutes. However, have you considered that the laws on wills change from time to time? How confident are you that the will template reflects these changes? It is risky when you have so much on the line as far as your family, your property, and the law balance.

Working with an experienced estate planning attorney has all the benefits of working with someone who has been there and done that as far as helping others get through their cases. If you have questions an attorney will have answers to be able to guide you confidently. With so much at stake, it would be a shame for you to trust your estate to a website and have that website come up short when it matters most. Remember- it’s not you who would suffer because of the bad will that is drafted- it’s your family and potential beneficiaries.

For that reason, seeking a free-of-charge consultation to go over your estate, discuss your goals and ask questions would seem to make a lot of sense. We know how complicated it can be to sort through the legal issues, family issues, and emotions of a will. Our attorneys are here to help when you are ready to begin the process of planning your estate.

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Other Related Articles:

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  3. Taxes and Probate in Texas: What You Need to Know
  4. What is an Heirship Proceeding in Texas Probate?
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  6. How to Avoid Probate in Texas: Tips and Strategies
  7. Understanding Probate in Texas: What You Need to Know
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  9. Understanding the Role of the Executor in Texas Probate
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  12. Estate Planning and Probate: Maximizing the Benefits of a Will
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  15. Do Codicils Have To Be Notarized?
  16. Is a codicil legally binding?

 

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