What is an estate plan?
In the most basic terms, an estate plan is a plan, expressed in a set of legal documents, that carries into effect your directions for how your person, property, and minor children will be managed and cared for if you become disabled or die.
Why do I need an estate plan?
If you do not have estate planning documents when you die or become disabled, the ownership and management of your property will be governed by the law of your state and the Federal government. In many instances, the lack of a will, trust, durable power of attorney, medical power of attorney, or designation of guardian can complicate the situation when you die or become disabled and can result in conflict and legal proceedings that could have been avoided with proper planning.
Wills & Probate
Do I really need a will?
When considering whether you need a will, you should consider a few questions. First, do you have many assets to divide up? In many cases, a car and a house would be a good enough reason to make a will to make sure that those assets go to the person you want. Second, do you care who will inherit your belongings when you die? Would you like it go entirely to your spouse/closest next-of-kin, or are there other family members, friends, or charities to whom you would like to bequeath assets? Under Texas law, oral wills (simply telling your family how you wish your belongings to be divided) are not considered valid and will likely not be honored. Even a very simple will can ensure that the plans you put in place for the distribution of your assets will be honored.
What happens if I don't have a will in Texas?
If someone dies without a will, they are said to have died ‘intestate.' This means they did not provide any legally binding statements about how their property should be divided. It would, therefore, fall upon the laws of that particular state to determine how the property is distributed. In Texas, the statutes for intestacy divide and distribute property based on a variety of circumstances, such as whether you are married or single, whether you have children, and whether a particular asset is held separately or as community property. Assets may be divided between your spouse and children, but not necessarily in the manner that you prefer. If there is no surviving parent and any of your children are under 18 at the time of your death, a court may appoint a guardian for your child's person or property. If you and your spouse have not addressed this issue before death, there may be uncertainty and the possibility of litigation as a court considers what it believes is best for your children.
Can I write my will by hand?
While it is possible to make a handwritten (“holographic”) will in some states (such as Texas), there are potential pitfalls not present in a traditional will. First, the will must be entirely in your handwriting. If any part of your will is handwritten, no other part may be typed out and appended. If circumstances change and you wish to amend part of your will, it is difficult to make these changes while keeping the will legible and understandable, which may result in having to write out the entire will again. Secondly, a handwritten will is harder to verify as legitimate. Texas law does not require the signing of a handwritten will to be witnessed, but this can work against you after your death since it may be more difficult to prove that the will was written by you and free of duress. Thirdly, you may not be aware of various laws, deadlines, and other factors that could delay or thwart your desired outcome. It is often better to have an experienced professional guide you through the process.
What is probate and why do people try to avoid it?
Probate is a court process of paying off your debts and distributing your belongings. In the absence of trust-based estate planning, many of your assets may have to go through some kind of probate or other process involving a court, regardless of whether you have a will. The chief concern many people have is the amount of time it takes for the process to finish. Although it is often not practical to avoid this process entirely, one can streamline it by transferring assets into a trust during your lifetime rather than distributing them in a will. In a trust, a person you name (the trustee) agrees to have title to, manage, and distribute assets entrusted to them for the benefit of whomever you name (the beneficiaries). Ordinarily, you are the trustee of your trust while you are alive and have mental capacity. After you die, your successor trustee immediately takes control and may pay off your debts and divide up assets without court involvement, which may be a faster process and is always private.
Powers of Attorney
My parent is having memory issues – can they still give me power of attorney?
It may be possible for your parent to grant you power of attorney since memory is not, by itself, the measure of capacity. However, since memory is part of a person's overall mental status, in some cases, it may be too late. A power of attorney hinges on the one granting the power of attorney (the ‘grantor') having the mental capacity to authorize you to act on their behalf. If your parent does not fully understand the effects of a power of attorney, a power of attorney would be void. You would then be required to involve a court to make binding legal commitments, and it may be necessary to appoint a guardian or conservator to handle your parent's finances and assets. Estate planning now—creating appropriate powers of attorney and, where appropriate, living trusts—usually avoids this situation.
Estate Planning Process
How long does the estate planning process typically take?
We plan for the process to be about three weeks long. Week 1 starts on the day of your consultation, and for the rest of that week and Week 2, we complete a draft of your plan. We review the plan with you at the beginning of Week 3. If you're satisfied with the plan, we can sign then and there. If there are some changes to be made, then we plan the signing meeting for later in the week to complete the process.
How fast are your response times?
We typically aim to respond within an hour during business hours. If you email us after business hours, you can usually expect a reply first thing in the morning.
What should I bring to the consultation?
Before meeting with Mr. Brennan, we'll send you a questionnaire to give us information on what you own and your current family situation. The form will ask you to submit any electronic copies you have of relevant documents such as deeds to property you own, previous estate planning documents, insurance policies, and bank account statements. We would ask that you bring in any documents of which you do not have electronic copies for our staff to scan.
What do you charge?
The cost of estate planning is mostly determined by how complex your plan is. Our prices start below $1,000 for a single person's simple will and powers of attorney, and increase based on how much legal and paralegal work is required.
