The attorneys and staff with the Law Office of Bryan Fagan have a profound amount of respect and admiration for our first responders and military. Having an occupation and a career where you put yourself at risk every day for the benefit of our community speaks volumes of your character and bravery. Risking your life daily for people that you have never even met is truly heroic. Understanding the risks that come with your career adds to that level of bravery. Those of you who are in the military, or our first responders are in the thoughts and prayers of our office each day.
Being a first responder or member of the military means that you take on more risk in your career than the vast majority of people. Going into a job where you cannot always be sure that you will be coming home at the end of the day is a far cry from many of us who work in an office or a typical nine-to-five job. When you take into consideration the added risk of your work plus the reality of your life having a family, children, and other responsibilities means that estate planning should be at the top of your mind as a goal for you to begin to complete sooner rather than later.
Medical power of attorney
With a medical power of attorney, you can name an agent as a person to make medical treatment decisions on your behalf if you become incapacitated in the future. By having a medical power of attorney, you position your family to not have to seek guardianship over you. There is a fairly simple document that requires only two witnesses to view your signing of the document, or you need to sign in front of a notary. The medical power of attorney allows your agent to make decisions for you regarding medical decisions and treatment while you are incapacitated. The document has no value until you become incapacitated, and you can make decisions for yourself until you become incapacitated.
What is a living will?
A living will is a directive to your doctor that tells him or her whether he would like life support to be withheld if you become incapacitated. Specifically, your incapacitation would need to be caused by a terminal condition or a condition that doctors determined to be irreversible. This directive to your doctor would tell the doctor that no extreme measures should be taken to save your life or that you should not be kept on life support if becomes necessary. Again, you would need two adult witnesses to watch you sign the form or a notary to make the living will official.
What is a statutory durable power of attorney?
Like a medical power of attorney, the statutory durable power of attorney would name an agent on your behalf to handle financial matters if you become incapacitated. The statutory durable power of attorney would allow you to grant specific or any statutorily defined powers to an agent. You need a notary to view your signing of the document. Additionally, the statutory durable power of attorney allows your family to avoid guardianship proceedings in the future.
The declaration of guardian
Many people do not know that you can name a guardian of your person or a guardian of your estate before you become incapacitated. What a declaration of guardian (if the need arises) allows you to do would be to name a guardian of the person and a guardian of your estate to have ready if you become incapacitated later on. You can disqualify some people from serving as your guardian by not including them in this document. Keep in mind that this form may not be needed if you have a medical power of attorney and a durable power of attorney. Signing with two witnesses and in front of a notary means that the document itself is proven.
Declaring a guardian for your children
A declaration of guardian for children puts you in a position where you can name a guardian of the person or the estate for your minor children or an incapacitated adult child if you become deceased or incapacitated. Many times, in the world of estate planning we see that this type of appointment is made within your will which would then take place upon your death. If you are married or not, and your child’s other parent survives you then he or she will become the guardian of the person of your child no matter who you name in this declaration of guardian for children.
Are handwritten wills valid in Texas?
One of the most frequently asked questions that we receive here at the Law Office of Bryan Fagan is whether a handwritten will is valid. Handwritten wills are valid in Texas. These are typically simple wills that only require you as the testator to sign. The main requirement of a handwritten will is that the document must be written entirely in your handwriting. Many times, a handwritten will is used to simply be a placeholder until you can get to a point where a more formal, typewritten will be made. However, even if you never get to the point where a typewritten wheel can be made you can rest easy knowing that a handwritten will is perfectly valid in Texas.
How to pass on your home or land without having to go through probate
To pass on your home or land without the need for a probate case you would need to sign a transfer on death deed before your passing. This is a simple way for you to transfer your home or real estate to another person once you pass away. The deed would have no impact on your use of the home or your ownership rights of the property during your lifetime. For example, just because you have created a transfer on a death deed does not mean that you cannot sell the property, receive property tax exemptions, or perform other acts using the property during your lifetime. Essentially, the beneficiary of the will, the person you are transferring the property to upon death, would not receive any benefit of the property until you pass away. You are well within your rights to change the beneficiary whenever you want or even to cancel the transfer on the death deed.
A logical question to ask if you already have a will is what benefits a transfer on death deed good provide to you. The reality is that even if you do have a will your property would still need to go through probate. This means that the probate court would need to empower your executor to act regarding the property according to the terms of your will. By the same token, if you pass away without a will then your estate would still need to go through the probate process. An estate administrator would be appointed and then empowered by the court to take action regarding your property as far as transferring it to your heirs.
What a transfer on a death deed can accomplish is that it would allow you to convey your property without needing to go through probate. As anyone who has experience in the probate courts can tell you, it is a worthwhile goal for you to be able to try to avoid probate, if at all possible, in your estate planning. Probate court takes away your autonomy after you pass away and places it in the hands of a probate court judge. The judge would need to follow the Texas Estates Code when determining how to disperse your property upon your death. There are also court costs and other administrative fees involved when it comes to taking property from your estate and dispersing it to your heirs.
This does not mean that a transfer on a death deed can replace a will. No matter if you have a transfer on death deed for certain property, a will may still be an important part of your estate planning. Keep in mind that there are some assets that you own that can be distributed or passed along to people of your choice without probate. Examples would be life insurance policies and retirement plans which have named beneficiaries within each of them. However, some properties that you own will not contain beneficiary designations. In that case, a will allows you to specify how you would like those assets to be distributed upon your death. Keep in mind that if you have a complex estate with a fair amount of personal property then a will gives you the free reign to divide the property however you choose.
Why first responders and military members need a will
Dying without a will means that you are not in a position where you can choose who will inherit your money, property, real estate, personal property, and retirement benefits. All these assets comprise what is known as your estate. On the contrary, your estate will be divided up according to Texas State law. When you die without a will you should know that you are extended family such as your siblings and even your grandchildren will probably not be able to inherit any property from you at the time of your death. Additionally, dying without a will almost certainly means that your estate will need to go through the probate process. The costs associated with this probate case will come out of your estate.
On the other hand, when you have a will that puts you in the driver’s seat as far as determining where your property goes after your passing. As part of your will, he will name someone as the executor. That executor will be the person who executes your wishes and distributes property to your family members, friends, or whomever you name as a beneficiary in the will itself. He or she does not get to substitute their judgment for yours. Rather, you are in a position where you instruct the executor through the will on how to divide property. This gives you control over your estate even though you have passed away.
Even if you are married that does not mean that your property will automatically go to your spouse when you pass away. When you die without a will your estate will be divided up according to Texas law depending upon whether the property in question is part of your separate estate or is part of your community property estate with your spouse. Community property refers to any property acquired by you during your marriage. This includes cash, bank accounts, retirement savings, personal property, and real property. An exception to this rule is if you inherit property or our gifted property during your marriage period this property would count towards your separate estate. Other than property acquired during your marriage via gift or inheritance, separate property is property owned by you or your spouse before your marriage.
If you die unmarried but with children, then your property will go to your children at the time of your death. Keep in mind this means all your children whether they are your biological children or your adopted children. It also does not matter if the children were born out of wedlock or were born during your marriage. These children will share equally in your estate. You would not be able to control how much of your estate goes to what child if you die without a will. Unless you have a child, who predeceases you, your grandchildren would not be able to receive any property from your estate.
Final thoughts on estate planning as a military member or first responder
To say that the Law Office of Bryan Fagan has a profound amount of respect for our military service members and first responders would be an understatement. We are fortunate enough to call Southeast Texas our home in part because so many military members live in this area. When we serve our military as first responder clients, we understand that you put yourself in harm’s way for us, our families, and the families of everyone else who lives in this community. We are grateful to you for your sacrifices and appreciate wholeheartedly the work that you do daily.
With that said, no matter how hard you work and no matter what sacrifices you make during your career for other people the reality is that being a good person and having a noble calling as far as your profession does not absolve you of anything when it comes to not planning your estate and taking into consideration the specific circumstances of your life. Because your line of work is so much more dangerous than most people’s, You need to be especially aware of how your estate is currently comprised and what would happen with your family and your property after you pass away without a will.
Sitting down with an experienced estate planning attorney with the Law Office of Bryan Fagan is a great way for you to begin the process of learning more about estate planning as a military member or first responder. You may have questions or assumptions as it pertains to subjects in the world of estate planning. A consultation with one of our experienced estate planning attorneys is a great way for you to learn more about the law and specifically learn more about how the law will impact your case and your life.
These consultations allow you to talk to the attorney and for the attorney to be able to provide you with feedback based on your specific circumstances. We hope that today’s blog post has been informative, but we make no two ways about it that we understand the information that we share in a setting like this is going to be limited as a result of our office not knowing anything about your circumstances in life. For that reason, an attorney needs to be able to learn more about you on a human level before providing information.
Thank you for joining us today on our blog. We offer unique and informative content every day where you can learn a great deal about the world of Texas estate planning. As a military member, veteran, or first responder, you know that planning and executing a good plan makes all the difference when it comes to accomplishing a goal. The same can be said of estate planning here in Texas. Thank you again for joining us today and we hope that you will come back tomorrow to spend more time here on the blog for the Law Office of Bryan Fagan.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed estate planning 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 law as well as about how your family’s circumstances may be impacted by the filing of a probate case.