Frequently Asked Questions

Sometimes called a Directive to Physicians, a living will allows you to state your wishes in advance regarding what types of medical life support measures you prefer to have, or have withheld/withdrawn if you are in a terminal condition (without reasonable hope of recovery) and cannot express your wishes yourself. Oftentimes a Living Will is executed along with a Durable Power of Attorney for Health Care, which gives your Agent legal authority to make your health care decisions when you are unable to do so yourself.

A Durable Financial Power of Attorney allows you to appoint someone you know and trust to make your  financial decisions even when you cannot. If you are incapacitated without these legal documents in place, then you and your family may have to undure a costly and time consuming probate proceeding known as a guardianship. This is the court proceeding where a judge determines who should make these decisions for you under the ongoing supervision of the court.

A Power of Attorney for Healthcare is a legal document which names an Agent who can act if an individual is incapable of making a medical decision. The ability to make medical decisions is determined by a physician, and the threshold for capacity differs depending on the complexity of the decision. The Agent under a Power of Attorney for Healthcare only has authority to make decisions during the period of incapacity. Common causes of incapacity include loss of consciousness, delirium, severe psychosis, and advanced dementia.

In order for someone to be judged incapacitated, evidence of poor decision making would need to be brought before a judge who specializes in determining capacity. If the judge rules that an individual is incapacitated, a guardian would be appointed. Sometimes two guardians are appointed: one to make financial decisions and the other to make health and personal decisions. Often, less-restrictive alternatives to guardianship can be arranged with proper legal assistance.

Often companies or individuals advertising for Free Medicaid Qualification are actually selling annuities or other financial products. So while you may not pay any up-front fees, you will pay ongoing commission and other fees. Also these individuals are not fiduciaries, meaning, they don’t have to recommend the financial products that are in your best interest.

This is the most common form of asset ownership between spouses. Joint tenancy (or TBE) has the advantage of avoiding probate at the death of the first spouse. However, the surviving spouse should not add the names of other relatives to their assets. Doing so may subject their assets to loss through the debts, bankruptcies, divorces and/or lawsuits of any additional joint tenants. Joint tenancy planning also may result in unnecessary death taxes on the estate of a married couple.

Many people choose to add a family member to their bank account for convenience, but joint accounts have potential pitfalls, including disinheriting heirs. A good alternative is to appoint a trusted family member to act on your behalf through a Durable Power of Attorney. Another option is to give your family member signature authority instead of joint ownership. The best option may be to create a Trust to ensure that funds are disbursed according to your wishes.

You may avoid probate on the transfer of some assets at your death through the use of beneficiary designations. Laws regarding what assets may be transferred without probate (non-probate transfer laws) vary from state to state. Some common examples include life insurance death benefits and bank accounts.

This is an agreement with three parties: the Trust-makers, the Trustees (or Trust Managers), and the Trust Beneficiaries. For example, spouses may name themselves all three parties to create their trust, manage all the assets transferred to the trust, and have full use and enjoyment of all the trust assets as beneficiaries. Further “back-up” managers can step in under the terms of the trust to manage the assets should the couple become incapacitated or die. Special provisions in the trust also control the management and distribution of assets to heirs in the event of the trustmaker’s death. With proper planning, the couple also can avoid or eliminate death taxes on their estate. The Revocable Living Trust may allow them to accomplish all this outside of any court proceeding.

Whether you are young or old, rich or poor, married or single, if you own titled assets such as a house and want your loved ones to avoid court interference at your death or incapacity, consider a revocable living trust. A trust allows you to bring all of your assets together under one plan.

A Will is the document a person signs to provide for the orderly disposition of assets after death. Wills do not avoid probate. Wills have no legal authority until the willmaker dies and the original will is delivered to the Probate Court. Still, everyone with minor children needs a will. It is the only way to appoint the new “parent” of an orphaned child. Special testamentary trust provisions in a will can provide for the management and distribution of assets for your heirs. Additionally, assets can be arranged and coordinated with provisions of the testamentary trusts to avoid death taxes.

If you die without a Will (intestate), the Texas Legislature has determined who will inherit your assets and when they will inherit them. You may not agree with their plan, but roughly 70 percent of Americans currently use it.

It’s a good rule of thumb to review your documents at least every three years, but changes don’t need to be made unless family circumstances have changed. Many people think of changing their documents after a marriage, divorce, or death, but those are not the only reasons you may want to make a change. Perhaps your appointed agent under a Power of Attorney is going through a physical or mental health crisis or the person you appointed executor of your will has made some poor decisions lately. Documents should be updated to ensure your wishes are followed.

Probate is the court and process that looks after people who cannot make their own personal, health care and financial decisions. These people fall into three general categories: Minor Children (under age 18 in most states); Incapacitated Adults; and People who have died without legal arrangements to avoid probate. Probate proceedings can be expensive and time-consuming. Additionally, the court proceeding and associated documents are all a matter of public record. Many people choose to avoid probate in order to save money, spare their heirs a legal hassle, and keep their personal affairs private.