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PROTECT TOMORROW’S LEGACY – TODAY
At the Kazi Law Firm, we believe that estate planning is the start of a long-term relationship with our clients and not just another legal transaction. We strive to serve every client with honesty, integrity, and compassion. We believe in the power of building lifelong relationships with our clients by creating your estate plan specifically around your family’s unique needs, with the same care and attention to detail we would give to our own families.
Our estate planning philosophy emphasizes the design and custom drafting of your individualized plan. Just as no two people are the same, no two estate plans are the same. Not only do we cater to your current needs, but as life events occur, we provide continuing guidance and education for you and your loved ones to protect your family’s legacy.
I’m sure in your search for an estate planning firm, you’ve come across dozens of qualified options, so why choose us? What makes us a cut above the rest?
WHY ENTRUST YOUR FAMILY’S FUTURE WITH THE KAZI LAW FIRM?
OUR STREAMLINED PROCESS:
At the Kazi Law Firm, we realize how busy life can be. As parents ourselves, we recognize the struggle between juggling your career with your children’s extracurricular activities, balancing demanding social obligations with the countless rigors of day to day life. While you understand the importance of an estate plan for your family’s “tomorrow,” the sense of urgency is often suppressed under the mountain of items on today’s “to-do” list. The Kazi Law Firm has shifted the paradigm by making the estate planning process as quick and convenient for you as possible.
CONTINUING RELATIONSHIP:
Once you become our client, we like to think of you as part of the Kazi Law Firm family. As such, we are always available to answer any questions you may have about your estate plan, free of charge. We also send periodic check-ups through our firm’s newsletter to keep you informed of circumstances that may require changes to your trust, recent developments in the law, and critical issues affecting your family and finances.
We pride ourselves on delivering an exceptional client experience while providing cost-effective solutions to legal matters. We hope that if you’re ever faced with a legal obstacle, you think of us first.
FREQUENTLY ASKED QUESTIONS:
What is an estate plan?
Estate planning is essentially arranging for your own care, if needed, and for the eventual distribution of your wealth to your loved ones. A properly executed estate plan will allow your loved ones confidently carry out your financial and health care wishes if you become incapacitated, without the need for court proceedings or court oversight. It will also allow you to pass your property as you desire, select guardians to care for and raise your minor children after your death.
How much does an estate planning lawyer charge?
Your total cost will depend on how simple or complex your estate is. If a simple Will is all you need, you can expect to pay $250 to $500. For estate planning, you might see price tags closer to $1,000 or more. Some attorneys will charge you by the hour to prepare an estate plan. Hourly rates can vary. You may find lawyers who bill anywhere from $300 an hour to $500 or more. This is precisely where the estate planning attorneys in Dallas at the Kazi Law Firm, PLLC differ.
We charge a reasonable flat fee for estate planning. With a flat fee, you’ll pay the same amount no matter how many times you call or email us with a question. The attorney can explain things to you without worrying about running out the clock, and you’ll be more relaxed knowing you won’t get a surprise bill in the mail. We pride ourselves on our transparency and honest approach to estate planning. Our estate planning attorneys in Dallas, Texas, practice by the golden rule – treat others as you want to be treated.
Remember, the legal system is a sophisticated web of laws that can be difficult to understand. An experienced estate planning lawyer in Dallas, Texas, can make sure there are no loopholes in your legal documents. Hiring a lawyer might cost you a little upfront but can potentially save you and your heirs’ thousands of dollars and months of frustration and heartache down the road.
Do you have to be an attorney to do estate planning?
No, but it is highly recommended to have your estate plan prepared by an experienced estate planning lawyer in Dallas, Texas. Becoming an estate planner requires financial, tax, and accounting knowledge. Estate planners typically have law, accounting, or finance degrees and certifications. Common certifications estate planners may hold chartered trust and estate planner (CTEP), accredited estate planner (AEP), and certified trust and fiduciary advisor (CTFA).
Estate planning is a complicated maze of federal and state laws, IRS rulings, and judicial interpretations. These all affect how assets and income are treated for tax purposes based on various transactions, transfers, and triggering events. Creating and managing these transactions requires an in-depth understanding of fiduciary duties, responsibilities, and knowledge of your state’s evolving probate laws. Therefore, it is advisable to have your estate plan drafted by your estate planning attorney in Dallas, Texas, to ensure seamless execution.
Do attorneys make house calls?
Traditionally, the answer would be a resounding no. However, we live in the age of incredibly capable technology with video conferencing and virtual appointments readily available. Recently, lawyers have also begun to see their clients elsewhere, other than their law firm where such meetings would ordinarily occur. Lawyers and clients alike have found it beneficial to meet in a convenient locale for the client. Currently, most clients choose to “meet” remotely from the convenience of their home computer or smartphone, where they bypass traffic and save time in doing so.
How much should a Will cost in Texas?
Well, the age-old adage has never been truer than with regards to the cost of a Will – quite simply, “you get what you pay for.” Anyone can go online and purchase a bare-boned, flimsy, DIY, plug-and-chug Will from Legal Zoom or Rocket Lawyer for $100-200, but does that buy you peace of mind? The real question to ask yourself is: Are you willing to gamble with your family’s future after you’ve passed? Don’t they deserve better? Of course, they do, and so do you! How about spending a little more to get a custom-tailored estate plan made only with you and your family in mind.
A simple, basic Will in Texas costs, on average, between $250 to $2,500+. The price depends on the experience of the attorney drafting the Will and the complexity of the estate. Reputable estate planning attorneys in Dallas, Texas, will charge a minimum of $500+ since a Will is only valid if it is properly drafted and executed.
The Kazi Law Firm, PLLC offers estate plans entirely drafted and reviewed by an experienced, licensed Texas attorney, with the option to make changes to your estate plan as life’s significant events unfold. We are not a one-time, one-size-fits-all option. As your life changes, so should your Will. The Kazi Law Firm, PLLC, offers a complimentary annual review of your estate plan to our clients for life. All changes and revisions in the form of a codicil (amendment) are free of charge. Let us offer you that priceless peace of mind at an affordable cost. There’s no worse feeling than regret. Don’t save a little now, only to risk losing everything later.
How much should basic estate planning cost?
An estate plan’s cost will vary depending on the documents you need, the complexity of those documents, and the lawyer’s fee structure. Suppose you go to an estate planning lawyer in Dallas. In that case, the price is determined by three factors: 1) the type of product or estate plan that you need; 2) the type of legal fees your estate planning attorney in Dallas uses, and 3) who actually does the work on your estate plan.
What are the typical types of fees for estate planning?
Lawyers use different types of fees for different services. The way you pay your attorney greatly impacts how much you will end up paying for your estate plan. Lawyers typically use one of three common rate structures: flat fees, the billable hour, or contingency fees.
The Kazi Law Firm, PLLC, offers flat-fee pricing for our estate plans, regardless of the complexity or number of documents involved. We believe in full transparency with no hidden or surprise fees. We feel affordable estate planning should be a right for every Texan and not merely a privilege reserved for the wealthy few.
How much does an attorney charge for a living trust?
The costs for establishing a living revocable trust vary from state to state, depending on laws, and can also be affected by the estate’s size. The national average cost for a living trust for an individual is $1,100-$1,500. The national average cost for a living trust for a married couple is $1,700-$2,500. Part of the reason for this range in prices is the range of services that are available from various estate planning attorneys. Different attorneys may offer different protection or additional documentation. When you’re shopping for an estate planning attorney, don’t consider cost the most crucial deciding factor.
Yes, you can download template documents yourself from some website. Yes, you could discuss the details with un-trained, un-professional friends or relatives, but why risk it? The Kazi Law Firm, PLLC is comprised of Texas estate planning attorneys that make establishing a trust affordable and within reach. Don’t risk protecting your assets with inferior, incomplete, or incorrect paperwork. Call us for our reasonable flat fee pricing and discuss whether a trust is the right estate planning tool for you.
Should I get a trust instead of a Will?
You have two basic choices for transferring your assets on your death: A Will, which is the traditional method, and a living trust, which is rapidly growing in popularity. Suppose you die without either a will or a living trust. In that case, Texas controls the disposition of your property, which will likely be more complicated and costly for your loved ones. Whether a Will or living trust is better for you depends on several personal factors.
If you choose a Will, your estate will have to go through probate. Probate is a court-supervised process to protect creditors and beneficiaries’ rights and ensure the orderly and timely transfer of assets. A Will can be advantageous because it provides standardized procedures and court supervision. Also, the creditor claims limitation period is often shorter than for a living trust.
Generally, probate in most states is time-consuming, moderately expensive, and a public matter. Thus, avoiding probate is a common estate planning goal. A living trust (also referred to as a revocable trust or inter vivos trust) acts as a Will alternative, providing instructions for managing your assets on your death and, if funded, during your life. You will still also need to have a basic Will, often referred to as a “pour over” Will. However, Texas probate is quite straightforward and relatively quick, thus negating a living trust’s most significant advantage over a traditional Will.
For more information on living trusts, please read our blog post: https://www.kazilawfirm.com/revocable-living-trust/
What is the probate process in Texas?
For more information on the Texas probate process, please read our blog post: https://www.kazilawfirm.com/texas-probate-process/
Simply put, the probate process in Texas requires the following:
1. Notification of interested parties. Most states, including Texas, require disclosure of the estate’s approximate value and the names and addresses of interested parties. These include all beneficiaries named in the Will, natural heirs, and creditors.
2. Appointment of an executor. If you haven’t named an executor, the court will appoint one to oversee the estate’s liquidation and distribution.
3. Accumulation of assets. Essentially, all assets you owned or controlled at the time of your death need to be accounted for.
4. Payment of claims. The type and length of notice required to establish a deadline for creditors to file their claims vary by state. If a creditor does not file its claim on time, the claim generally is barred.
5. Filing of tax returns. This includes final income and estate taxes.
6. Distribution of residuary estate. After the estate has paid debts and taxes, the executor can distribute the remaining assets to the beneficiaries and close the estate.
What questions should I ask an estate planning attorney?
Every situation is different and has its complexities. Hence, it is crucial to work with your estate planning attorney in Dallas, Texas, to understand your options and whether a trust is the right solution. Please keep in mind, laws change, and your life and financial situation will be too. What may be the best strategy for you today may no longer be appropriate several years from now, as your family grows. To ensure your estate plan is drafted at the highest level, periodically review your plan with your estate planning attorney in Dallas, Texas. It is recommended to review your estate plan annually if possible, but certainly after major life events (births, deaths, etc.). Therefore, always ask your estate planning attorney if he/she offers complimentary reviews of your plan.
Be sure to be forthright in disclosing financial information and objectives with your lawyer. Remember, your estate planning lawyer in Dallas is there to guide you and provide you with a tailor-made estate plan for your specific needs, goals, and desires. Just as no two people are the same, no two estate plans are either.
Never be shy in asking questions if you’re uncertain about a legal term or the implications of a clause in your estate plan. Ask your estate planning lawyer in Dallas, Texas, to explain the subtle nuances of trusts versus Wills and determine which is the better option in your case. In estate planning, there is no one size fits all option.
Other questions to ask your estate planning attorney include:
Questions to ask yourself after speaking with an estate planning attorney?
As with most things in life, you need to trust your instinct in determining if a particular estate planning attorney is right for you. You may be referred to multiple competent local attorneys, but you can only choose one to draft your estate plan. Remember, the attorney-client relationship is a sacred one of confidentiality and privilege. Estate planning can be complicated, both emotionally and legally, so it’s imperative to choose an attorney who can deftly handle all its elements.
Here are a few questions you should ask yourself after the initial conversation:
Should I put my house in a trust?
Individuals put their home in a living trust to avoid the costly and lengthy probate process at death, which is true for most states. However, in Texas, fortunately, the probate process is relatively simple and straightforward. Leaving real estate assets to a spouse or children in a Will causes those assets to pass through probate. However, if you own real estate in multiple states outside Texas, the probate process in those states may take a few months or even a year. Additionally, in some states, the estimated cost of probate can be 3% – 6% of the estate’s value. Each state will have its probate proceedings, which can be costly, time-consuming, and completely avoidable. It’s always advisable to contact your estate planning lawyer in Dallas, Texas, with questions or concerns.
Moreover, please keep in mind that the primary benefit of putting your home in a revocable trust is to remove the asset from your probate estate. Since you can access the assets in the trust at any time, a revocable trust does not provide asset protection from creditors or remove the home from your taxable estate at death. Thus, it can’t be emphasized enough that working with an experienced estate planning attorney in Dallas is an integral part of the estate planning process. A detailed discussion of your goals can help your attorney identify what solutions may fit your specific needs.
Does a Will override a living trust?
A Will and trust are separate legal documents that typically share a joint goal of facilitating a cohesive estate plan. However, if there is a discrepancy between the two documents, the trust will take precedence over the Will. This is because revocable trusts become operative (during life) before the Will, which takes effect at the time of death. For instance, if you transfer your family heirloom pearl necklace into your living trust, technically, the trust becomes the pearls’ owner, not you. Subsequently, if you use your Will to leave the necklace to your granddaughter, but you name your niece to get it through your trust, your trust would override your Will because your trust, not you, owned the pearls when you died. However, there are some exceptions to this general rule. It is recommended that you speak with your estate planning lawyer in Dallas for questions specific to your situation.
What is the difference between Will and estate planning?
To many people, a Will and estate planning are one and the same. While the terms may seem interchangeable, they are quite distinct processes. A Will is a legal document (part of an estate plan) that sets forth your wishes regarding your assets’ distribution upon your death. Estate planning goes even further to outline your wishes regarding your health, finances, minor children, and more, even while you’re living. Your estate planning lawyer in Dallas, Texas, can help you determine what type of planning you need and help you create the necessary documents for a comprehensive estate plan that will efficiently and accurately distribute your property after your death.
What is an “executor” of a Will?
The executor is responsible for carrying out your wishes as specified in your Will. An executor’s responsibilities include collecting and protecting the assets in your estate, paying off debts and taxes owed by your estate, and then distributing the assets in accordance with your Will. Under Texas law, an executor has the fiduciary responsibility to manage and care for the estate property as a prudent person would care for his property.
Unlike most states, Texas allows you to designate your executor to serve as an “independent executor,” meaning minimal court supervision. Be sure to speak to your estate planning lawyer in Dallas about how to choose an executor for your Will. Having an independent executor can save your estate a significant amount of money and greatly expedite the probate process.
Who should I appoint as executor of my Will?
Appointing an executor of your Will is a critical decision and not one to be made in haste. You should appoint a person you trust and who is willing and capable of serving. Please keep in mind that if you appoint a spouse, adult child, or close friend, he/she will also be grieving and distraught. The mourning period after one’s death is a highly emotional time. Thus, it would be best if you only appoint someone who you trust to handle your assets and the responsibility of administering your estate with a level head. You need to make sure that the person’s judgment is not clouded by grief. It is also crucial to name at least one alternate executor if your executor is unwilling or unable to serve.
Can I put my house in a trust if I still have a mortgage?
Yes, you can transfer your home with a mortgage into a trust. Putting your home in a living trust isn’t the same as selling or assigning the home to another person. It will not trigger a “due on sale” clause. Not a lot changes when you put a mortgaged home in a revocable trust. You are still responsible for paying the mortgage when your trust owns the home. Likewise, if you fail to make timely mortgage payments, the lender can still take the home.
Do you need both a Will and a living trust?
It depends on where you live and how many assets you have for distribution. Generally, you may need both, but not always. Occasionally, people who have few assets and live in a state, such as Texas, where probate is not complicated, opt for a Will only. However, if you have a living trust, you generally need a Will to go with it. The Will that accompanies the living trust is called a “pour-over” Will. A “pour-over” Will serves as a safety mechanism to capture any assets that are not included in your living trust. These assets are essentially “poured over” into your trust. If you have a living trust that hasn’t been wholly funded (or there are assets outside your trust), this “pour over” Will ensures these assets are distributed according to the terms of your trust.
Who Probates the Will?
In most circumstances, the executor named in the Will assumes the role of handling probate. However, if there is no Will, the state probate court will decide the rules of inheritance. In Texas, state and local court rules govern the various time periods that the executor must follow in probating a Will. Generally, in Texas, the executor has four years from the testator’s date of death to file for probate. Keep in mind that if the executor does not file the Will for probate within that prescribed time, the laws of intestacy (when there is no Will) will govern how the estate’s assets are distributed. Therefore, the executor must act swiftly in fulfilling his duties and obligations.
Can I amend or revoke a trust once it is created?
It depends on what kind of trust it is. An irrevocable trust is set in stone after it’s created. You can’t undo it or amend it, although your beneficiaries might have some options under very narrow circumstances.
On the contrary, yes, you can modify your revocable trust. To do so is the norm rather than the exception. Keep in mind that most people who make a trust modify it multiple times throughout their lives. Life circumstances change, and unforeseen complications arise that no amount of planning could have prepared you for. Thus, changes or modifications to revocable trusts are common.
Though, if a trust requires so many changes that it will be difficult to amend into the form you want, then the best option may be to revoke the trust and write a completely new one. This is not a decision that should be taken lightly, as it is an arduous and expensive process.
Can I be the settlor and trustee of my own trust?
Yes, there is no requirement that these be separate people. In fact, the same person who acts as settlor of the trust in funding can also act as the trustee for the trust and be the beneficiary of the trust.
Remember, every trust will have at least three people linked to it: 1) the settlor or grantor of the trust who funds the trust; 2) the beneficiaries of the trust who receive the benefit of the trust, and 3) the trustee who manages the trust property for the benefit of the beneficiaries.
Can I revoke the Power of Attorney?
Yes, you can use the Power of Attorney at any time. Please keep in mind that the Power of Attorney should only be given to someone you trust implicitly. It should be given to someone that can make decisions about your life that you would usually make yourself. The person you make your agent and give Power of Attorney will be authorized and empowered by you to make all the critical decisions of your life. There are many reasons why you would want to revoke a Power of Attorney in Texas. You may need to revoke the Power of Attorney due to a divorce or separation, or you may simply no longer trust your agent. In any case, you are free to revoke the Power of Attorney by completing a Revocation of Power of Attorney document in writing where you explicitly state that the original Power of Attorney issued to the attorney-in-fact is being terminated. You must provide a copy of your Revocation of Power of Attorney form to all parties involved with the original Power of Attorney, especially your agent. To revoke Power of Attorney in Texas, all parties must be aware of the revocation.
Can I still make decisions if I have executed Powers of Attorney?
Yes. A power of attorney only allows your agent to do what you would want to be done for you. It does not limit your ability to do things for yourself. Remember there are five instances when a power of attorney ends: it ends if it has an ending date; it ends when you become incapacitated if a power of attorney is not a durable one; it ends when you revoke it; it ends when a guardian of the estate is appointed for you, or it ends when you die.
Can I use an online service like Legal Zoom or something similar to create my estate plan?
Yes, you absolutely can use Legal Zoom or something similar, but the question should not be IF you can, but should you? And if so, will it be valid and held up in court? You won’t be around to answer that question. Instead, your poor grieving family members will be left navigating the complex world of probate law.
It’s tempting in today’s day and age to bypass the professionals for a cheaper, quicker alternative. We all feel overconfident after watching YouTube videos and reading DIY blogs with copious amounts of useful information. But let me ask you something, by that same token, would you perform a root canal on yourself or attempt to remove a pilar cyst from your scalp?
Likewise, Legal Zoom will only help you part of the way. It will leave you stranded without the counsel of an experienced estate planning attorney. On their website, they admit to “not providing legal counsel” and offering you “Attorney Assist,” their membership-based service program (at an extra cost) if you need to speak to an estate planning attorney. However, suppose you hire an experienced estate planning lawyer in Dallas at the onset. In that case, you will not only save time but money. This one-stop approach will give you the peace of mind and personalized attention that you deserve.
Finally, keep in mind that there’s a compelling reason why attorneys obtain numerous years of higher education to earn a doctorate in jurisprudence and then take a grueling, 3-day Texas Bar exam – the practice of law is complicated! Much like estate plans, which are complex, multi-faceted, and challenging. Remember, estate planning is more complicated than Legal Zoom would have you believe. It’s part art and part science. Each meticulously crafted phrase, every chosen word, and minute detail can potentially negate or unravel an estate plan thrusting the testator’s intent into question.
Do I Need an Attorney to Prepare My Estate Plan?
Yes, it is highly recommended that you have a competent attorney prepare your estate plan. Estate law is complex and often convoluted. Do not attempt to draft an estate plan on your own, regardless of how simple you may believe your estate is. The subtle legal nuances and intricacies can trip you up and cause tremendous heartache for your loved ones. Let an experienced estate planning attorney in Dallas give you the peace of mind that you deserve. You’ve worked hard your entire life for your assets, and it should be you that decides how they are distributed, not the state of Texas.
Do I Really Need a Will?
Yes! Everyone who owns anything, no matter the value, should have a Will. This vital document puts you in charge of directing others of your wishes and distributing assets upon your death. Without a Will, known as intestacy, you have no control, and the state of Texas determines who gets what after your death. Do you think your preferences and the state’s align perfectly? I guarantee you that they don’t. Even if you have a trust, jointly owned property, or have named beneficiaries on your insurance plan, a Will is an essential tool, even as just a “backup” plan. Many people believe that if they have made beneficiary designations on life insurance policies, property deeds, or retirement accounts, a Will is not necessary. While it is true that those particular designations will ensure the right people, you elected will receive benefits or inherit those assets, the distribution stops there. If there are other assets that you own, such as a car, artwork, family heirlooms, or jewelry, to name a few, or if you would like to give part of your estate to a charitable organization, a Will is critical to your estate planning needs.
What is the difference between a Will and a living will?
A Will and a living will are two entirely separate documents with distinct legal ramifications. A living will, also known as a medical directive, allows you to designate in advance medical treatment for end-of-life care, specifically regarding the use of life-sustaining treatment in the event of an irreversible or terminal condition. On the contrary, a Will is a document used to specify how you would like your assets distributed upon your death (not your incapacity). Suppose the person becomes unable to make their own medical decisions or communicate their wishes. In that case, a living will instructs others how they want to be medically treated.
What options do I have with a living will?
A qualified, experienced estate planning lawyer in Dallas can assist you with more specific information about this legal question. Still, typically, you will have three different choices: to have medical staff do everything in their power to keep you alive (including life support machines); to have life-sustaining methods be limited to a tube for feeding and oral hydration, or to have any and all life-sustaining methods withheld. Please keep in mind that you will always be provided with medications to ease pain and discomfort no matter which option you choose.
Why is it important to have a living will?
Suppose you have specific opinions or religious preferences about how you would like your medical treatment to be handled, for example. In that case, whether or not you want to be kept on life support for a prolonged period or get a blood transfusion, it can be beneficial to have a living will. If you don’t have one in place, your family and physicians can only speculate about your wishes, which can lead to lengthy and painful arguments about your care. When you create a living will, you remove the guesswork for your loved ones on how you want them to perform on your behalf. It is imperative to discuss this legal document with your estate planning lawyer in Dallas.
Do I need to update my Will?
Significant life changes such as the death of a family member, divorce, the birth of a child, or changes in assets often necessitate drafting a new Will or a codicil (amendment) to your current Will. If you’ve experienced these or other major life changes since drafting your Will and have questions about whether you need to update your Will, consult with your estate planning attorney in Dallas.
Does a trust need to file an income tax return?
Per the IRS (https://www.irs.gov/), Trusts must file a Form 1041, U.S. Income Tax Return for Estates and Trusts, for each taxable year where the trust has $600 in income or the trust has a non-resident alien as a beneficiary. However, if the trust is classified as a grantor trust, it is not required to file a Form 1041, provided that the individual grantor reports all items of income and allowable expenses on his or her own Form 1040 or 1040-SR, U.S. Individual Income Tax Return. Thus, the grantor/individual would pay the total tax liability upon the filing of his return for that taxable year.
How Could Getting Sued Impact My Estate Plan?
If you are sued, you will have to satisfy the judgment with assets that would have gone to your heirs or beneficiaries. Regarding the distribution of your property, your estate plan only regulates the assets that you own at the time of death. Speak to your estate planning attorney in Dallas if you are named a party in a lawsuit or expect to soon.
How will a judge determine if the Marital Agreement is valid?
For more information on marital property agreements, please read our blog post: https://www.kazilawfirm.com/marital-property-agreement/
A marital property agreement is a way for married couples in Texas to bypass characterization rules – separate versus community property. The primary purpose of a marital property agreement is to define what will be community and what will be separate property during the marriage. Additionally, the agreement can govern the disposition of property on separation, divorce, or death. Furthermore, the agreement can waive any homestead allowance, personal property set aside, and family allowance to which a spouse may be entitled.
The enforcement of a marital agreement can be one of the more complicated components of family law litigation. For an agreement between spouses to be enforceable, it must be in writing and signed by both parties. On the contrary, if one spouse wants to avoid the enforcement of the agreement, that spouse must show one of two things:
A judge will determine if a marital agreement is valid based on whether it was unconscionable and if a full disclosure of assets was made when the agreement was signed. A judge will examine the totality of the circumstances, coupled with the verbiage of the agreement. It’s imperative to keep in mind that the more complicated the agreement is, the easier it is to misconstrue or misinterpret the document.
I’ve already granted Power of Attorney to someone. Can they make medical decisions for me under that document?
No, unless the same person is designated as the financial power of attorney (POA) and the medical power of attorney. POA documents allow a person (the principal) to decide in advance whom they trust and want to act on their behalf should they become incapable of making decisions for themselves. The person who acts on behalf of the principal is called the agent.
From there, it is important to distinguish between the two main types of POA: medical and financial. A medical POA (also known as a health care POA) gives a trustworthy friend or family member (the agent) the ability to make decisions about the care the principal receives if they are incapacitated. A financial POA gives an agent the ability to make financial decisions on behalf of the principal. It is common to appoint one person to act as an agent for both financial and healthcare decisions, but in some cases, it may be wise to separate the two.
If my Power of Attorney says it is effective upon my incapacitation, how is that decided?
Texas law determines incapacity per the Texas Estates Code § 752.051(https://codes.findlaw.com/tx/estates-code/est-sect-752-051.html).
“Incapacitated” is further defined in Texas Estates Code §1002.017 (https://codes.findlaw.com/tx/estates-code/est-sect-1002-017.html as an adult who is substantially unable to care for his or her own physical health, or manage their own financial affairs or provide food, clothing, or shelter for him- or herself because of a physical or mental condition.
Is it better to have a trust than a Will?
When estate planning, determining whether to use primarily a Will, trust, or both depends on individual circumstances. Each serves different purposes. There is a lot to consider when your estate planning attorney in Dallas, Texas, is drafting your personalized plan. Establishing a trust has many benefits, but it can be more expensive than a Will and requires more work. For example, legal title to assets must be transferred to the trust after it is created. A Will may be more appropriate for those who live in a state where probate is not as complex, time-consuming, or expensive, such as Texas. Using only a Will also can be ideal for someone with a simple or modest estate and who wants to limit expenses. The “best” option depends on a person’s specific needs and goals.
What Constitutes a Will in Texas?
Death is a morbid topic that most of us want to avoid discussing or even thinking about. We understand that the inevitable is lurking but would instead put off planning for it for another day. However, it is essential to understand what constitutes a valid Will in Texas. There are several components per the Texas Estates Code : https://statutes.capitol.texas.gov/Docs/ES/htm/ES.251.htm
What decision can be made under a Medical Power of Attorney?
The person that you name as your Medical Power of Attorney can make any decisions related to your healthcare that you allow. These decisions could include giving, withholding, or withdrawing informed consent to any type of health care, including but not limited to medical and surgical treatments. However, your agent can’t: agree to hospitalize you for mental health services, agree to convulsive treatment or psychosurgery, agree to an abortion, or refuse care that will keep you comfortable or pain-free.
What decisions can be made under a General Durable Power of Attorney?
A general power of attorney ends on your death or incapacitation unless you rescind it before then. A durable power of attorney can be general or limited in scope. Still, it remains in effect after you become incapacitated. A general durable power of attorney both authorizes someone to act in a wide range of legal and business matters and remains in effect even if you are incapacitated. You may authorize an agent to: buy or sell things for you; apply for public benefits (such as Medicaid, Medicare, or Social Security) for you; manage your business; collect your debts; invest your money; cash your checks; manage your financial matters generally, or sue on your behalf.
What do Pre and Post-Marital Agreements cover?
To learn more about the complexities of marital property agreements, please read our blog post: https://www.kazilawfirm.com/the-dreaded-p-word-in-relationships/
Pre- and postnuptial agreements have been unfairly branded with a negative connotation. Many see them as a means of planning for divorce rather than planning for the future. Wills are not viewed as precursors of death, so why should marital property agreements be viewed as omens of divorce? Some of the most prevalent issues that are resolved by these agreements include:
The purpose of these agreements is to save the time and expense of litigation, not only in the case of a divorce but also in death. The litigation of property issues will likely be costly, time-consuming, and will subject the spouses to the default rules of Texas law rather than allowing them to dictate for themselves how their property should be divided.
What Happens if I Die without an Estate Plan in Texas?
To learn more about the intestacy laws in Texas, please read our blog post: https://www.kazilawfirm.com/to-have-a-will-or-not-have-a-will-that-is-the-question/
Unfortunately, there are times when an individual has died without a will in Texas (intestate). As you may deduce, the probate of these types of estates is more complicated than estates, where the decedent has left a valid Will.
When a person dies without a Will in Texas, the law dictates how that person’s assets are to be distributed. The Texas Estates Code will specify the heirs that will inherit the person’s property and in what order. Several assets will require probate to be done in court to be appropriately distributed to the heirs.
In the intestate scenario, an estate can only be opened within four years of the decedent’s death. A relative of the decedent who stands to inherit usually hires an attorney to perform the probate. The attorney files an Application for Letters of Administration with the court. The court appoints an “attorney ad litem” to investigate who the decedent’s heirs are. Thereafter, a hearing is set where the court determines who the appropriate heirs are. Finally, the court will issue Letters of Administration that evidence the administrator’s authority to act on behalf of the estate.
Leaving behind a Will not only ensures that your final wishes are carried out but also simplifies the process for your loved ones, making an emotionally difficult time a bit easier on them.
What is a “trust”?
A trust is an entity in which an individual (the trustee) holds legal title to the property for the benefit and use of another person (the beneficiary). The trustee and the beneficiary each share a portion of the title to the property in the trust. For example, the trustee holds legal title, while the beneficiary holds equitable title. The person who establishes the trust appoints the trustee in the document creating the trust. The trustee has specific duties and fiduciary responsibilities to the beneficiary (or beneficiaries) to manage the property in the trust according to both the provisions of the trust and consistent with the laws of Texas.
If you’ve been contemplating an estate plan, you may have heard of the term “revocable trust, or commonly referred to as a “living trust.” A trust can be set up to be revocable, where the person who makes the trust can change it or revoke it during his or her lifetime. Similarly, the trust can be irrevocable, meaning it can no longer be revoked once the trust is finalized. Whether the trust should be revocable or irrevocable depends on the purpose of the trust. Certain irrevocable trusts are used for tax planning purposes. Similarly, a revocable trust is often used to assist beneficiaries in avoiding the costs and burden of probate. Fortunately, Texas is known (among lawyers, at least) for simple, efficient probate.
Texas probate is notably more straightforward than many other states due to “independent administration” of estates. Using this process, most executors complete the probate process with very little court supervision. However, many people erroneously believe they need a living trust to avoid probate. While a living trust can be used to avoid probate, a properly drafted Will can be just as useful and forthright. Other reasons to set up a living trust may include a large, blended family, credible fears that a Will and Last Testament will likely be contested in probate court, a high profile individual or celebrity with an increased desire for privacy. Trusts are also useful if you own property in another state or if you wish for someone else to manage your assets in the case of incapacity. Please keep in mind that property in a living trust does not avoid estate taxes.
Avoiding probate is by far the most recognized benefit of a living trust and usually the one that convinces the majority of people to set one up. However, a living trust is not the right option for every person and should be considered on a case by case basis.
What is a healthcare agent?
A health care agent can help make medical decisions on your behalf at the end of life, or any other time you cannot communicate, such as if you are severely injured in an accident. A health care agent also may be called a health care proxy, surrogate, or an attorney-in-fact. www.texmed.org. The full advance directives statute can be found at Texas Health and Safety Code, Chapter 166. (https://statutes.capitol.texas.gov/Docs/HS/htm/HS.166.htm )
A health care agent can decide the following (examples below):
What is Estate Planning?
Estate planning is the process of legally structuring the future disposition of your assets. An estate plan protects your family and finances after you die by making future asset distribution and tax savings decisions beforehand. A common myth associated with estate planning is that it’s only for the wealthy. This couldn’t be further from the truth. Estate planning is a vital tool for all individuals and should be utilized to ensure that your loved ones are taken care of. Would you want the state of Texas to dictate how your hard-earned assets are distributed? Shouldn’t you have a say in where your personal wealth and property goes in the family? Regardless of your net worth, it is crucial to have a basic plan in place. By planning your estate, you can maximize its value by minimizing taxes and eliminating court costs and interference.
Furthermore, an estate plan enables you to make vital personal decisions about the management and distribution of your assets, as well as your health and personal care if you become unable to do so yourself. An effective estate plan allows you to accomplish your personal and family goals for the distribution of your assets and personal care while providing peace of mind regarding the management of your financial and legal affairs. Depending on the value of your estate, some estate plans also include measures to reduce taxes and other expenses. Texas has laws in place that will decide on your behalf if you do not leave behind a properly executed estate plan.
Estate planning can also help you control and protect your estate during your lifetime by writing documents that allow you to transfer property and money to children, charities, or others in a way you desire. The advantages of having an estate plan greatly outweigh the awkward conversations and/or uncomfortable feelings of facing your own mortality. Life is fragile and unpredictable. However, you can take the guesswork out of the end of life outcomes by making proactive and well-thought-out decisions now. You owe this incomparable peace of mind to not only your family but to yourself as well.
What Types of Documents Should be Included in an Estate Plan?
Many people believe that estate plans are for someone else, not them. They may rationalize that they are too young or don’t have enough money to reap the tax benefits of a plan. Depending on your individual needs, your estate planning attorney in Dallas may recommend different documents. However, a basic estate plan should include the following documents: Will and Last Testament, Living Will, Durable Power of Attorney, Medical Power of Attorney, HIPAA Authorization Form, and Guardianship Designation (if necessary), Guardianship Declaration of Minor Children (if applicable). These documents allow you to distribute your property to individuals of your choosing upon your death and plan for your incapacity. Please keep in mind that these do not provide tax planning, such as estate tax, gift tax, or the generation-skipping tax.
What is an Advance Directive, and when will it take effect?
An advance directive is an order to your health care provider (usually a doctor) made in advance of a loss of competency that directs the healthcare provider, your family, or a surrogate decision-maker to manage your health care in the event you are unable to communicate your wishes yourself. Advance directives are especially useful in medical emergencies or near the end of a person’s life.
Advance directives become effective after one or more doctors certify that (1) you are unable to make medical decisions on your own, (2) you are in a condition specified in the state’s living will law, and (3) you meet other state requirements, as applicable.
To be valid, an advance directive must be signed by you in the presence of two witnesses, who will also sign. The person you name as a health care agent may not also be a witness.
What are the Different Types of Advance Directives?
Per the Texas Health and Safety Code, Texas law, (https://statutes.capitol.texas.gov/Docs/HS/htm/HS.166.htm )affords four types of directives: the Directive to Physicians and Family or Surrogates; a Medical Power of Attorney; an Out-of-Hospital Do-Not-Resuscitate (DNR) Order, and a Mental Health Treatment Declaration.
Where is the law on Advance Directives found?
The Mental Health Treatment Declaration is §137.011, Civil Practice, and Remedies Code (https://statutes.capitol.texas.gov/Docs/CP/htm/CP.137.htm). The other two are in the Health and Safety Code as follows: the Directive to Physicians and Family or Surrogates is §166.032 (https://codes.findlaw.com/tx/health-and-safety-code/health-safety-sect-166-032.html) and the Medical Power of Attorney is §166.159 https://codes.findlaw.com/tx/health-and-safety-code/health-safety-sect-166-159.html.
What does terminal or irreversible condition mean?
A “terminal condition” is defined as “an incurable condition caused by injury, disease, or illness that according to reasonable medical judgment will produce death within six months, even with the available life-sustaining treatment provided in accordance with the prevailing standard of medical care.” A person who has been admitted to a hospice is presumed to be in a terminal condition. “Irreversible condition” is defined as “a condition, injury, or illness that may be treated but is never cured or eliminated, that leaves a person unable to care for or make decisions for the person’s own self; and that, without life-sustaining treatment provided in accordance with the prevailing standard of medical care, is fatal.”
What is life-sustaining treatment?
Life-sustaining treatment is the treatment that, based on reasonable medical judgment, sustains a patient’s life and without which the patient will die. It includes both medications and artificial life support (mechanical breathing machines, kidney dialysis treatment, and artificial nutrition and hydration). It does NOT include the administration of pain management medication or the performance of a medical procedure considered to be necessary to provide comfort care or any other medical care provided to alleviate a patient’s pain.
Who can create an Advance Directive?
Any person 18 years of age or older can prepare an advance directive. To make your directive legally binding, you must sign it or direct another to sign it in the presence of two witnesses who must also sign the document.
Why do I need a Power of Attorney?
The most important estate planning document may be a well-drafted financial power of attorney. This document becomes most vital if an individual becomes incapacitated (either mentally or physically) to the point that he or she is no longer able to make financial decisions. If you don’t have a Power of Attorney and you lose the “capacity” to enter into a new document, then your loved ones will not be able to make decisions on your behalf.
Will a Pre or Post-Marital Agreement harm my marriage?
No, a marital property agreement will likely not harm your marriage. Marital agreements have unfairly earned a bad name for themselves. There appears to be a negative stigma associated with pre and postnuptial agreements, which is utterly baseless.
Texas is one of the few community property states in the country. Community property generally includes any property acquired during a marriage, including wages, benefits, real property, and even income earned from separate property. The separate property of the spouses generally includes anything they owned before the marriage and any gifts or inheritances they receive during the marriage.
Many people believe that getting a divorce under community property laws means that they are automatically entitled to half of the property owned by them and their spouse. Caveat – this is not always the case. In Texas, the courts follow a “just and right” rule (https://statutes.capitol.texas.gov/Docs/FA/htm/FA.7.htm) and will divide the property in a fair and equitable manner as they see fit. If all things are equal between the spouses, each spouse may receive half of the community property, but that may not be the case in every scenario. A prenuptial agreement also referred to as a premarital agreement or “prenup,” is a contract executed by a couple prior to their marriage that describes each person’s rights and obligations in the event of a divorce. Texas law allows nearly anything to be included in a prenuptial agreement so long as it does not contravene public policy or result in a criminal offense.
Postnuptial agreements allow spouses to accomplish many of the same goals as prenuptial agreements but are executed during the marriage. Spouses sometimes use these sorts of agreements to partition and exchange community property into separate property or, conversely, separate property into community property. Spouses can also settle property issues through a postnuptial agreement instead of a separation agreement.
Texas community property laws are, however, default laws. This means that couples may utilize a valid pre- or postnuptial agreement and divide their property as they see fit.
Will my living will expire?
No. Your living will remains effective for as long as you live unless you intentionally revoke it or the courts get involved (e.g., someone challenges whether you had the capacity to make the document, or a court questions whether your document meets the state’s requirements). Yet another reason why having an estate planning lawyer in Dallas, Texas, prepare your living will document is so crucial.
What happens if someone does not have a medical power of attorney or durable power of attorney and he/she becomes incapacitated?
It depends on the individual’s needs. There may be several options available, including the appointment of a legal guardian. For example, suppose an individual becomes incapacitated and can longer care for themself or manage their financial affairs. In that case, a court may appoint a legal guardian to do so on behalf of the incapacitated person (also known as the “ward”). A guardian of the estate is responsible for managing the property and financial affairs of the ward. The person’s guardian is generally responsible for providing care, supervision, food, clothing, and shelter for the incapacitated person and may also consent to medical treatment on their behalf. An individual may be appointed either guardian of the person or guardian of the estate, or both, depending on the incapacitated person’s needs at the time.
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