Fabio & Merrill

1. Why do I need a Will?

The simple answer is that you decide upon the division of your estate, not the State of Texas.

If you have minor children and no longer are married to or living with the other parent of your children, then, by having a will in which you name someone else to serve as trustee of your assets for the benefit of your children, you can insure that the other parent will never gain control of your estate and assets.

Further, you can eliminate or reduce certain types of future expenses. Minors and other persons who are legally incompetent cannot manage property which they might own. Unless a trust is established for minors and other persons who are legally incompetent, the court will appoint a guardian to manage the estate of the minor or legally incompetent person, which is a costly and time consuming procedure. By incorporating trust provisions in a will, you can insure that minors and other legally incompetent persons do not receive property until they reach a certain age or are no longer legally incapacitated.

By using trust provisions, you can decide when you want your beneficiaries to be able to receive the property which you leave to them and you can provide for the special needs of beneficiaries that may have physical or mental impairments. Most of our clients decide that a child is not ready at age 18 for the responsibilities of managing their own financial affairs and elect to insert trust provisions in their wills which would keep a child's share of their estate in trust until the child reaches 21 or some older age.

If the value of the estate which your spouse and you own is above the threshold for Federal Estate Taxes, a will can be used as an estate tax planning tool that can save a substantial amount of estate taxes.

If you have one or more minor or mentally incapacitated children, you can designate a guardian who will take care of them while they are still minors or mentally incapacitated if the other parent has died before you.

In Texas, the costs associated with preparing most wills and handling most probates of wills is usually very reasonable. Unlike a number of other jurisdictions, Texas allows for independent administration if the will contains the appropriate language. Independent administration is a streamlined procedure designed to limit the involvement of the courts in matters pertaining to estate administration and to keep estate administrative and legal expenses to a reasonable level.

2. What is a financial power of attorney and how is that different from a medical power of attorney?

A financial power of attorney allows you to choose someone you trust to handle your finances and other business dealings on your behalf. You can make the power of attorney effective immediately upon execution, which is often chosen by people who travel out of the country and need someone to handle their finances when absent from home. Alternatively, you can choose to have the power of attorney become effective only when you become legally disabled and are no longer capable of making decisions on your behalf, which seems to be the choice of most of our clients.

A medical power of attorney allows you to designate someone you trust to make health care decisions when you are unable to do so. By having medical and financial powers of attorney, you should be able to eliminate: (i) any involvement by the courts in the handling of your financial and health care matters should you become incapable of handling same yourself, and (ii) any family disputes as to whom should be appointed as a guardian to handle your affairs. In the absence of powers of attorney and if you should, as a result of a accident, illness or otherwise, become incapable of handling your affairs, then it may very well be necessary for the courts to become involved and appoint a guardian to handle your finances and make health care decisions on your behalf, which is a very expensive and time-consuming process. The guardian appointed by the courts might also be a person you would not have chosen or wanted to handle your affairs and make decisions for you. All too often, the decision on whom should be appointed as a guardian results in a dispute and possible court contest among family members.

3. What is a Guardianship Directive?

There are two types of guardianship directives - one for your children and one for yourself.

A guardianship directive for your children allows you to name someone you trust to take care of your children and their property in the event you become incapacitated and can no longer take care of your children and the other parent is either deceased or also considered legally incapable to care for your children. It does not eliminate involvement by the courts, but should eliminate any disagreements among family members as to who will take care of your children when you are incapable of doing so.

A guardianship directive for yourself allows you to pre-designate a person you would like for the courts to appoint as your guardian to take care of you and your finances should it be necessary for a guardian to be appointed because you become incapable of taking care of yourself. It does not eliminate involvement by the courts, but should eliminate any disagreements among family members as to who will take care of you when you are incapable of doing so.

4. What is a Living Will/Directive to Physicians?

A directive to physicians (which is sometimes called a "living will") allows you to decide what type of medical procedures, if any, should be used to extend your life if you should, at some future time, suffer from a terminal condition or irreversible condition and no longer be capable of making your wishes known. Without the directive to physicians, the decision about whether to keep you on life support and to pursue all available means to extend your life would be left to your family and physicians and, in the event of a disagreement, possibly to a judge.

CALL MR. MERRILL FOR ANSWERS TO OTHER WILLS AND PROBATE