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Adriane S. Grace to Launch New Boutique Estate Law Firm

On June 1, 2021 Adriane S. Grace will be joined by Board-Certified Estate Planning & Probate Attorneys, Cynthia D. Hurley and Kimberly N. Loveland to launch a new boutique estate law firm in Frisco, Texas: Loveland | Grace | Hurley, PLLC. The new firm will be a full service estate law firm offering estate planning, asset protection, business planning, guardianship, public benefits counseling, trust services, and probate and estate administration and litigation.

Stay tuned for our new website launch and further details!

What is a Fiduciary

What is a Fiduciary?

The caregiving and supporter role often arises out of crisis. A loved one becomes disabled, or worse, unexpectedly passes away. It’s natural for family members and friends to want to help, but it’s also important to consider the legal obligations underpinning these roles.

Defining “Fiduciary”

Fiduciary roles often arise out of legal documents and relationships such as a trustee or executor under a Will; the parent-child relationship; spouses; and business partnerships. But did you know that a fiduciary role can arise out of an informal relationship as well? These informal relationships, or “confidential” relationships can occur by simply undertaking to act on behalf of another person. This is especially true in relationships where one person is more vulnerable due to disability, and is relying on the other person to assist, or act on their behalf.

Consider, for example, an aging parent who is starting to have failing health and memory problems. They may begin looking to their adult child to assist them with making certain life decisions or engaging in every day transactions. They may need them to start accompanying them to doctors’ appointments and be their “surrogate” when interacting with third parties concerning billing matters or scheduling. In such a situation, there is no doubt that the adult child who engages to assist this parent has become a “fiduciary”. Even an informal fiduciary such as this has legal responsibilities, and correspondingly, personal liability if they fail.

The Legal Responsibility of a Fiduciary

In formal fiduciary relationships, the legal responsibilities of the fiduciary are clearly defined in the legal document under which they arose. For example, an agent acting under a valid Durable Power of Attorney need look no further than the signed document to know what is expected of them. The Texas statutory form even includes a two-page explanation of fiduciary duties and the liability of the agent for breach of those duties.

But what about the example of the adult child helping the disabled parent? What if the parent did not have any formal estate planning documents in place before they became ill? As it turns out, they owe similar fiduciary duties to the aging parent just as a legally appointed agent under a valid legal document. These general duties include: (1) duty of loyalty and utmost good faith; (2) duty of candor (being open and honest); (3) duty to refrain from self-dealing; (4) duty to act with integrity; (5) duty of fair, honest dealing; and (6) duty of full disclosure (being transparent in decision-making). With duties like this, the informal fiduciary may want to consider how to make the relationship more formal to insure their acts are protected.

How to Legalize an Informal Fiduciary Relationship

Informal relationships can be formalized through proper legal planning. This can include making estate planning documents such as power of attorney documents where the individual appoints a legal “agent” to act on their behalf. However, such documents are dependent on the individual having the mental capacity to understand what these documents mean. But what if the individual is disabled and has lost this capacity?

In cases where the disabled individual lacks mental capacity to create legal documents, a legal proceeding called a guardianship, may be necessary. In a guardianship, a court can appoint someone to act on behalf of the disabled individual for healthcare and residential decisions as well as financial decisions. These are one-time legal proceedings that offer the fiduciary better legal protection as they instill the guardian with full legal authority to act on behalf of the disabled individual. Guardianships are also supervised by the court, creating accountability as it concerns the fiduciary duties owed to the disabled individual.

Whether a fiduciary role has arisen out of a relationship is very fact specific. Before undertaking to act on behalf of another, it’s important to be advised as to the legal role and responsibility, and potential personal liability.

Adriane S. Grace is a guardianship attorney in Frisco, Texas who regularly assists and counsels clients who are acting in a caregiver or supporter role. If you have questions about guardianship or fiduciary duties in the Frisco, Prosper, Allen, McKinney, Richardson, Dallas, Carrollton, The Colony, or Denton area, please complete the contact form to request a meeting.

 

 

When to Update a Will and Estate Plan

How Often Should I Update My Will and Estate Plan?

“When to update a Will” is a frequent question in my estate planning practice. I build contingencies into my clients’ Will and Trust documents  so that they only need review it at certain life events. Below are important life events that trigger the need to update a Will and estate plan.

Top 5 Reasons for Updating a Will and Estate Plan

  1. Marriage or Divorce
  2. Birth of children or grandchildren
  3. Interstate Move
  4. Tax law changes
  5. Retirement

1. Marriage or Divorce

Texas is a community property state. Our state law presumes that all income and property acquired during a marriage is community property, belonging to both spouses. Each spouse is entitled to an undivided 1/2 interest in the community property. As such, each spouse can gift away their 1/2 interest in their Will. However, if a spouse does not make a Will, the surviving spouse could end up splitting the community property with multiple other people under our state’s default inheritance laws.

For example, under Texas inheritance laws, if a spouse dies leaving behind children who are not also the children of the surviving spouse, the children inherit the community property interest. Under this scenario, a surviving spouse could end up sharing ownership in the marital home with their stepchildren. Spouses can avoid these draconian inheritance laws by making a Will and/or Trust.

Fortunately, state law provides that when spouses divorce, all gifts made under a Will to the divorced spouse are void. However, a divorced spouse with minor children may want to create a new Will, and appoint a trustee for their child’s inheritance, if they want to prevent the other parent from controlling the estate they leave behind.

2. Birth of Children or Grandchildren

Minor children cannot legally own property. Because minor children have a right to inherit under our state laws, it is imperative that parents, and grandparents, plan for this inheritance. This includes carefully selecting a guardian and trustee for any money or property a minor child could inherit.

3. Interstate Move

Although the United States constitution vests the federal government with authority to regulate interstate commerce, certain matters are reserved to the states. This includes laws related to the family relationship and property ownership. As such, state laws concerning rights of inheritance vary.

In addition to planning for inheritance, the formal estate planning process also includes planning for “probate”, or the legal process for transferring property at death. Because probate process varies state to state, so too does the type of estate plan needed to deal with such probate. Therefore, when you move to a new state, it is important to have your estate plan reviewed.

4. Tax Law Changes

Thankfully, we do not have estate tax in Texas, but federal law provides for inheritance taxation. Historically, federal law has provided an exemption from the inheritance tax, but these exemptions are subject to change. For example, just 18 years ago, the exemption was only $1 million. Today, it’s over $11 million per person, but only until December 31, 2025. The estate tax rate is currently set at 40%. By comparison, the highest income tax rate is currently 37%. Therefore, if you have an estate greater than $1 million (inclusive of cash, real estate, retirement accounts, and life insurance policies), you may need to have your estate plan reviewed periodically to determine if your beneficiaries could be taxed.

5. Retirement

Ask any financial advisor; they will tell you that retirement planning isn’t just about when you can afford to stop working, but also planning to pay for disability and long term care. The CDC says our life expectancy is now 78.7 years. Yet as we plan for more years not working, we must also plan for more years needing care as we age. Estate planning is not just about making Wills and planning for after death, but also planning for incapacity. Thus, its incumbent upon retirees to also consider who they will appoint in their estate planning documents to manage their finances and make healthcare decisions when they cannot.

Life changes are best managed when we are prepared for those changes!

Adriane S. Grace is an estate planning attorney in Frisco, Texas who regularly assists and counsels clients who want to prepare and plan in the wake of big life changes. If you have questions about estate planning in the Frisco, Prosper, Allen, McKinney, Richardson, Dallas, Carrollton, The Colony, or Denton area, please complete the contact form to request a meeting.

 

Power of Attorney

Power of Attorney: How to Avoid Abuse and Financial Exploitation

In estate planning, we often use Power of Attorney documents as a tool to plan for future incapacity. But with great power comes great responsibility. And power of any kind is easily abused. Thus, it’s important to carefully consider the legal effect and consequences of a Power of Attorney document.

What is a Power of Attorney?

A Power of Attorney allows a person to act on behalf of another in a financial transaction or for medical decisionmaking. A person making a Power of Attorney is called the “Principal” and the person they appoint to act on their behalf is called an “Attorney-in-Fact” or “Agent”.

The Agent isn’t really an “Attorney” (as in one who is licensed to practice law), but like a licensed Attorney, an Agent is a “fiduciary”. That means they must put the interests of the Principal above their own interests when acting as Agent. They must also account to the Principal for all actions performed, or decisions made, under the Power of Attorney. A failure to do so is an abuse of a Power of Attorney, or as we call it in legalese, a “breach of fiduciary duty”.

How Does a Power of Attorney Work?

A Power of Attorney allows an Agent to engage in transactions or make certain decisions on behalf of the Principal. Depending on the type of Power of Attorney, the Principal can also continue to engage in the same transactions and decisions. This is true of a “Durable Power of Attorney”. This is a Power of Attorney that permits the Agent to act immediately upon the Principal signing the Power of Attorney. These type of Power of Attorney documents are often used as a matter of convenience for a Principal who wants assistance with managing their assets or business, and who trusts their Agent. The appointment of an agent under a Durable Power of Attorney is effective immediately and continues until the Principal revokes it, dies, or a guardianship is created by a court. Consequently, an Agent is free to act under the Durable Power of Attorney even if the Principal later becomes incapacitated.

With a “springing” Power of Attorney, the Agent acts on behalf of the Principal only in the event of “incapacity”; when the Principal can no longer make decisions concerning their healthcare and/or finances. In Texas, a Medical Power of Attorney is always a “springing” Power of Attorney because the Agent is only permitted to make medical decisions when medical doctors have certified in writing that the Principal is incapacitated. Similarly, a Principal can create a “springing” Power of Attorney for financial transactions by specifying in the document that the Agent can act on their assets and financial accounts only in the event of the Principal’s incapacity.

Although a springing Power of Attorney may seem like a safe option, these documents are also subject to abuse since they are used in the context of a Principal who has lost mental capacity. Thus, it’s important to understand how and when a Power of Attorney can be used. For example, in Texas, a Power of Attorney cannot be used to change a person’s permanent place of residence or to “move” them to a skilled nursing facility. Nor is it permissible to use a Power of Attorney to admit a person to a psychiatric facility for in-patient care. Additionally, an Agent on a Power of Attorney may only engage in those financial transactions specified in the Power of Attorney document.

Who Can Make a Power of Attorney?

A person making a Power of Attorney, or “Principal”, must be able to understand the business they are transacting and the legal effect or consequences of the transaction. Thus, it is essential that at the time that they are making the Power of Attorney, the Principal understands they are granting certain powers to another person that can be exercised on the Principal’s behalf. The Principal must also be able to understand the legal consequences of those powers being exercised without the Principal’s participation.

If a Principal is unable to understand these concepts then they lack “capacity” and should not make a Power of Attorney. If a person makes a Power of Attorney at a time when they lack capacity, the Power of Attorney is voidable.  An Agent who engages in a transaction or makes a decision under a voidable Power of Attorney  could be held personally liable. For example, the purported Agent who sells property under a voidable financial Power of Attorney could be personally sued by third parties if the sales transaction goes awry or if someone complains about their authority to sell the property.

Power of Attorney forms are widely available on the Internet, but if the potential “Principal” is already incapacitated or if their capacity to make a Power of Attorney is questionable, potential Principals and agents should avoid using these forms. Instead, friends or family concerned about how to conduct the business transactions and medical decisionmaking of an incapacitated person, may need to consider a guardianship proceeding.

Avoiding Financial Exploitation Under a Power of Attorney

Because a Power of Attorney is a private document, courts do not oversee the actions of an Agent. Thus, anyone considering whether to make a Power of Attorney should seek legal counsel. Estate Planning Attorneys can advise about who to appoint as an Agent; what kind of powers their Agent should have; and how and when to limit those powers. When powers are not properly limited, Agents can exploit the finances of the Principal and even change their estate plans.

Similarly, appointed Agents under a Power of Attorney should seek their own legal counsel if they are aware that a Power of Attorney was made without the advice or assistance of legal counsel and are concerned about its validity, or their power to act.

Adriane S. Grace is an attorney in Frisco, Texas. If you have questions about Power of Attorney in the Frisco, Prosper, Allen, McKinney, Richardson, Dallas, Carrollton, The Colony, or Denton area, please complete the contact form to request a meeting.

Affidavit or Probate

Should I Sign an Affidavit?

A common question I receive in my probate practice is whether inherited property can be transferred with an affidavit. I often get this question from potential clients who have either been approached by a family member about signing one, or who scoured the Internet for advice on “how to avoid probate“. In Texas, we have two types of affidavits authorized by law, the “Affidavit of Heirship” and the “Small Estate Affidavit”. Before explaining these affidavits, it’s important to first understand what is an Affidavit.

What is an Affidavit?

An Affidavit is a recital of statements and facts about a person, place, and events. An “Affiant” is a person who signs an Affidavit. When an Affiant signs an Affidavit, they are swearing to all the facts and statements in the Affidavit. This sworn signature is generally done in the presence of a notary after the notary has administered the Affiant an “oath”, for example: “do you swear under penalty of perjury that the statements you are making and the documents you are signing are true and within your personal knowledge?”

Should I Swear to an Affidavit If I’m Not Sure?

The oath the notary administers, and before an Affiant signs, asks whether the individual has personal knowledge of the facts stated or knows it to be true. That means first-hand knowledge, i.e. information known by direct means and not by second-hand reports from someone else. For example, if the Affidavit states that a person was married three times, but the potential Affiant only knew about one marriage, then they lack personal knowledge of all facts stated and should not sign the Affidavit.

Can I Transfer Property With an Affidavit?

The short answer is “No”. An Affidavit is merely a sworn statement of facts. When discussing Affidavits in the context of inheritance and probate avoidance in Texas, we are referring to the “Affidavit of Heirship” and the “Small Estate Affidavit”. But these Affidavits are no more than a sworn statement of facts concerning a deceased person’s property and family tree. The Affidavit does not actually transfer property, but is a document that a third party may rely on to transfer or convey property to the heirs listed in the Affidavit.

Therefore, whether a third party will rely on the Affidavit determines its usefulness. For example, many title companies are willing to rely on an Affidavit of Heirship to transfer title in a home sales transaction. Likewise, the Texas DMV recognizes Affidavits of Heirship as a means for transferring title to a vehicle. However, banks and other financial institutions are very reluctant to accept an affidavit as a basis for transferring account balances. Generally, banks prefer court orders that specifically direct who can receive the money in the account.

In Texas, a Small Estate Affidavit is filed with the court, and if the Small Estate Affidavit meets certain legal requirements, a judge will sign a court order on the Small Estate Affidavit. Some banks, recognizing the legal authority in the court’s signed order, may accept this form of Affidavit to transfer account balances to the heirs named in the affidavit. But most financial institutions are uncomfortable with this and generally prefer dealing with an authorized estate representative, instead. This is a person who has “Letters Testamentary” or “Letters of Administration“; documents that can only be obtained through formal probate proceedings.

Consequences of Transferring Property Without Probate

Not all decisional “consequences” are bad. If a third party is willing to accept an affidavit, then great! It’s simple and cost-effective. But, caveat emptor (buyer, beware!). Once property is transferred without probate, estate creditors may sue the heirs directly. Additionally, omitted heirs could sue for their share. Therefore, when a person dies with debt, or complex family situations, a formal Probate is a better solution for shielding heirs from creditor claims and delivering finality from family dynamics.

Adriane S. Grace is an attorney in Frisco, Texas. If you have questions about the probate process or an inheritance Affidavit you have been asked to sign in the Frisco, Prosper, Allen, McKinney, Richardson, Dallas, Carrollton, The Colony, or Denton area, please complete the contact form to request a meeting.

Insiders Guide to Hiring Attorney Blog Banner

Insider’s Guide to Hiring an Attorney

I don’t know about you, but ever since we began this compulsory social distancing journey, my screen time consumption has increased dramatically! And between reading newsworthy articles, bingeing Netflix, and surfing social media, I have noticed an emergence of a new trend.

“Crowdsourcing” legal advice

First and foremost, I am seeing an uptick in “crowdsourcing” information and decisionmaking. You know what I’m talking about–public pleas for advice or comments on otherwise intimate personal situations and life-altering decisions. Don’t get me wrong about crowdsourcing–it’s useful for finding a  Costco well-stocked on paper goods. But, IMHO, crowdsourcing is NOT appropriate for seeking legal advice, or making life-altering decisions, for that matter.

For starters, social media is not ephemeral–once you ring that bell of sharing the intimate details of your personal situation–it’s out there for the foreseeable future. Consider, also, that anything you say in the public domain could become “Exhibit A” in the future.

It’s also important to understand that legal advice and assistance is individualized. Other people’s experiences with the legal system are based on their facts and personal circumstances. Not yours.

And when it comes to problems that invoke complex laws and factual situations, why wouldn’t you call an attorney? Crowdsourcing legal advice is like crowdsourcing advice on replacing the brake system in your car. Would you drive down IH-35 at 65 mph on a DIY brake system you put together from comments on a Facebook post or a reddit thread? Yikes, not me!

Do you really need an attorney?

If you aren’t sure, there’s no need to crowdsource that question. Just ask yourself a few simple questions: (1) Is this situation implicating my right to live my life freely, or independently of another’s interference? or (2) Is my right to own, possess, or transfer property being disrupted or questioned somehow? If you answered yes to those questions, then the answer is yes, you likely need an attorney’s assistance.

An attorney not only explains the law to you and your rights under those laws (something you could maybe research on the Internet), but they can also share their experience and knowledge about how the laws apply to your personal situation. Litigation attorneys, in particular, have regular and frequent experience with the tribunals in which they practice law. Do you personally know how your local judge would view your complaint?

How to Choose the Right Attorney For You

Not all attorneys are the same. When searching for legal assistance, look for an attorney whose practice is relevant to your legal matter.

For example, if your matter involves a divorce or child custody matter, then you would want to consult a “family law attorney”. But if your matter involves a death in the family and you want to know how to transfer the deceased family member’s money and property, you will need to consult with a “probate attorney”. Although a probate attorney does deal with families, they are not “family law” attorneys.

You can search for attorneys by practice areas on the state bar’s website. In Texas, some attorneys may even be “board certified”. This means they took an extra exam measuring their knowledge of a particular area of law, and this certification allows them to publicly advertise themselves as specialists in that field of law. Board certification, however, is not required to practice in a particular area of law.

Understanding Attorney’s Fees

Attorney’s fees aren’t cheap and understanding how attorneys charge their fee is an important consideration in hiring an attorney. The fee quoted should immediately indicate the type of assistance you will receive.

But don’t expect to get something for nothing. The oft-advertised “free consultation” is not what you might think. Oftentimes, attorneys will use this “free” consultation to assess you and determine whether they even want to take your case. Expect to receive very little legal advice or guidance during a “free consultation”. Such “free” calls or meetings may even be a waste of your own time.

If your goal, instead, is to receive legal advice or guidance on making a decision about a course of action to pursue, then expect to pay a fee.  And when you call the attorney’s office for an initial appointment, be sure to reserve an hour of time and request the attorney’s rate for that hour. Knowing that rate will also give you a basis for discussing estimated fees with the attorney by asking pointed questions about the time it would take to resolve your particular matter. And if your case is especially complex, consider meeting with more than one attorney. Knowing how each attorney would approach your case will help you understand not only what to expect, but identify variations in costs.

Instead of an hourly rate, some attorneys may charge a flat fee or a contingency fee to resolve your legal matter. A contingency fee is when the attorney does not get paid unless they “win” your case–usually cases with outcomes involving a money award. Attorneys who take contingency fee cases often take these cases on volume and generally utilize non-attorney staff to manage their caseloads. You may experience more interactions with staff than the attorney during the pendency of your contingency fee case.

With a flat fee you immediately know what your total investment will be. However, most attorneys limit flat fees to “simple” or straightforward legal matters. In a flat fee arrangement, the attorney will often take a universal approach to your legal matter and offer simple outcomes. With a flat fee you should also expect little room for individual preference or customization of the outcome.

An attorney’s value is their knowledge, skill, and expertise in the practice of law, which takes years to achieve. When you need a solution to a legal problem, there is no comparable DIY alternative to hiring an attorney.

Adriane S. Grace is an attorney in Frisco, Texas. If you are interested in hiring an attorney in the areas of estate planning, probate law, guardianship law, or social security law in the Frisco, Prosper, Allen, McKinney, Richardson, Dallas, Carrollton, The Colony, or Denton area, please complete the contact form to request a meeting.

Attorney Adriane Grace Published Headnotes

Attorney Adriane Grace Published in Headnotes, Dallas Bar Association Legal Journal

Attorney Adriane S. Grace’s article, “Probate and Guardianship Proceedings with Minor Children“, was published in the latest issue of Headnotes (Volume 45, Issue 12, December 2020, page 10). Headnotes is the official legal journal of the Dallas Bar Association. Originally formed in 1873, the Dallas Bar Association now boasts over 11,000 active members and recipients of Headnotes. Every December issue of Headnotes focuses on Probate, Trusts & Estates, and Tax Law. Ms. Grace is honored to have her article chosen by the Dallas Bar Association to be featured in this year’s Probate focus issue.

Adriane S. Grace has successfully represented and assisted newly single parents and caregivers in many different probate and guardianship proceedings involving minor children. Ms. Grace also advises parents in co-parenting situations on estate planning and creates trusts for minor children. She is available for both in-person and video consultations by appointment

Estate Planning for Co-Parents

Estate Planning for Co-Parents

“Co-parenting”, “platonic parenting”, and “parallel parenting”–social terms to describe the reality of many modern families– is becoming the norm. But what happens when one of the co-parents dies?

When a Co-Parent Dies

As devastating as this is for the child, the hardship to a platonic co-parent is just as profound. Where there were two wage earners and two caregivers, there is now only one. The burden is greatest when a co-parent dies without an estate plan. Not only must the surviving co-parent comfort a mourning child, they must also figure out how to collect, and protect, their child’s inheritance.

However, under Texas inheritance laws, when a co-parent dies without an estate plan, the surviving parent may find themselves either (1) unable to access their child’s inheritance because they cannot afford the legal proceedings, or (2) with strictly limited access to this inheritance.

Why Co-Parents Should Estate Plan

Texas has probate and guardianship laws that address a parent’s failure to estate plan, but these laws are not always helpful. Additionally, the legal proceedings involved are costly. This is especially true in the case of co-parents who are not married to each other.

For starters, under Texas inheritances laws, minor children must share their deceased parent’s estate with that parent’s spouse. This is an uncomfortable situation for the surviving co-parent: to collect an inheritance for their child, they must initiate an adversarial legal proceeding against the deceased parent’s spouse.

Even where there is no spouse involved, the surviving parent will have another dilemma when there is no estate plan: asking a court’s permission to access their child’s inheritance. That’s because Texas default inheritance laws have only one goal–to protect the child’s best interest. The state “protects” this interest by strictly limiting a guardian’s access to the child’s funds. Further, Texas family laws unequivocally state that parents have a duty of support. And this duty is not eliminated or minimized when one of the child’s parents dies. In other words, under these laws, the surviving parent is 100% responsible for their child’s financial needs and the child’s inheritance may only be accessed under the most extraordinary circumstances.

How Co-Parents can Estate Plan, Successfully

Whether you are co-parenting, parallel parenting, or platonic parenting, you need a contingency plan. If you are parallel parenting, you probably have no influence over what your co-parent does. But, you can use these same guidelines to protect what your child inherits from you, while making sure they never lack what they need.

First, consult your financial advisors about life insurance. The best way to replace lost earning potential is through life insurance. And the best time to buy life insurance is when you are young and healthiest and can pass the medical underwriting process. If your employer offers life insurance, consider paying for additional coverage. In sum, life insurance is the cheapest and most effective way to provide for a young family at a time when “lifetime” savings may be minimal.

Second, consult with your estate planner about creating a trust for your child’s benefit. These trusts can be as simple as a testamentary trust; a trust in your Will that is effective only at your death. When you create a trust, you get to choose the trustee who will manage your child’s money. You also determine the age your child will be allowed to manage their own money (whereas, state law presumes everyone is responsible at 18). You can also choose how this money will be distributed. In the case of a spendthrift co-parent, or one who has a spouse you don’t trust, you can choose, instead, to have the trustee make distributions directly to the institutions providing for your child’s needs rather than to the co-parent. In doing so, you can achieve the same goals as state law, but without the financial hardship to your child.

Third, verify that all beneficiary designations on your financial accounts are payable to the trustee of your child’s trust and NOT the child or some other individual (if you have a spouse, there may be other considerations there). A beneficiary designation is a contract and contracts are highly regarded in Texas. Meaning, if you choose someone other than your child, or your child’s trustee, that beneficiary will have an absolute right to those funds and owes no duty to your child. Alternatively, if you name your child as beneficiary, the contract usually requires a caregiver to initiate a guardianship proceeding if they need to access the funds prior to the child turning 18.

Finally, if you are successfully co-parenting, you can talk to your co-parent about your contingency plan. These conversations should emphasize the shared goal of providing for the child’s financial and emotional needs. Stick with goal-oriented, non-judgmental words. If you need assistance with how to approach these conversations, contact your estate planner.

If you would like legal assistance creating a trust for your child, or advice on how to estate plan in a co-parenting situation here in the Dallas, Plano, McKinney, Frisco, Allen, & Prosper area, contact me , an estate planning attorney and probate attorney for a consultation. In addition to in-person consultations, I am also available by teleconference and videoconference.

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Are Handwritten Wills Legal?: A Discussion of Holographic Wills

“Holograph” is a fancy term for a document written entirely in the author’s handwriting. A “Holographic Will”, therefore, is a Will written entirely in the handwriting of the person making the Will. These Wills are also referred to as a “Dying Man’s Will” because they are sometimes written when death is imminent and without the assistance of an attorney.

Are Holographic Wills Legal?

Yes, a Holographic Will is valid in Texas if the document is wholly in the handwriting of the person making the Will and is signed by them. The policy behind requiring the Will to be “wholly” in a person’s handwriting is to safeguard against fraud and forgery. Like formal typed-written Wills, the Holographic Will must have “testamentary intent”. That means the person making the handwritten document intended it to be a Will—a document that disposes of property after death.

Are Witnesses Required for a Holographic Will?

Witnesses are not required to make a handwritten Will valid. Additionally, a person making a handwritten Will can include a self-proving affidavit with the Will. This affidavit can be signed at the time the Will is made, or later, during the person’s lifetime. A self-proving affidavit must be made before an officer authorized to administer oaths, such as a notary or judge. There are several things the person making a handwritten Will must swear to in this affidavit, including that they were of “sound mind” when they made their Will.

Whether a person had the necessary mental capacity to make a Will is one of the top reasons Wills are contested in court. Although witnesses are not required to make a handwritten Will valid, having witnesses who can swear to the person’s state of mind at the time they made their Holographic Will, could prove useful.

Problems with Holographic Wills

Handwritten Wills are admitted to probate in the same way as typed-written, attorney-assisted Wills. However, these Holographic Wills can cause problems for beneficiaries and heirs. The biggest problem heirs and beneficiaries face is how to interpret instructions in a handwritten Will. Frequently missing from these handwritten Wills is the correct terminology needed to appoint an executor or create an independent administration. Additionally, handwritten Wills are typically written in “stream of consciousness” form, creating instructions that are open to more than one interpretation.

Thus, even if a handwritten Will successfully names an Independent Executor, the executor faces a tough job if their instructions are unclear. In these cases, an additional probate proceeding called a “declaratory judgment” may be required to aid the executor in their job. With a declaratory judgment, the executor obtains a court order construing the terms/instructions in the Will. This order allows the executor to carry out the Will’s instructions under court authority, thereby minimizing or eliminating their personal liability. However, such proceedings increase the costs of probate.

Sometimes a handwritten Will is better than no Will. But for individuals who have time to make an estate plan, consideration should be given to hiring an estate planning attorney. Getting formal legal assistance with making a Will is the best way to ensure a person’s wishes are correctly carried out.

If you would like legal assistance with making a Will, or probating a handwritten Will, here in the Dallas, Plano, McKinney, Frisco, Allen, & Prosper area, contact me , an estate planning attorney and probate attorney for a consultation. In addition to in-person consultations, I am also available by teleconference and videoconference.

Preparing College Students for a Medical Emergency

Preparing College Students and Young Adults for a Medical Emergency

When teenagers turn 18, the law presumes they are an adult.  At age 18, they are vested with the freedom to determine their residence, live on their own, vote, marry, and enlist in the military. This age often marks the first “adult” milestone: moving out of the family home and into a campus dorm or new apartment.

But 18 is not a magic number and most young adults continue to need guidance in their decisionmaking. This is especially true in a medical emergency. While planning a big milestone such as independent living, consider also making a plan with your adult child on how to handle a medical emergency.

Why Parents Should Help Young Adults Make a Plan

Medical emergencies come in many forms in a young adult’s life: car accidents, sports injuries, viral illnesses (aggravated by dormitory living), experimentation with alcohol and/or drugs, mental or emotional breakdowns, and relationship violence.

When making a plan to cover such emergencies, parents and young adults should consider a few questions. What local supports and services are immediately available to your adult child in the event of an emergency? Who will handle medical decisionmaking for the adult child during an emergency? How will the young adult’s tuition, books, car, and other monthly expenses be managed in the event of a medical emergency? Who should an adult child designate as their emergency contact?

How to Make a Plan with a Young Adult

Most college campuses have resources to deal with challenges before emergencies arise. The first step to preparing for an emergency is to build resilience and a positive sense of independence. First, help your adult child become familiar with their local, or on-campus, resources for medical care, counseling, and safety. Next, implement a set of documents that give you the legal authority to act on your adult child’s behalf when they are unable. These documents should include, at a minimum, a medical power of attorney, durable power of attorney, and HIPAA Authorization.

With a medical power of attorney, a parent can make healthcare decisions for their adult child in a medical emergency, and talk to their adult child’s treating doctors about treatment options. A HIPAA authorization allows a parent to access and obtain their adult child’s medical records; this medical history could be useful to a treating physician in an emergency. With a durable power of attorney, a parent could access their child’s bank accounts and deal with housing, insurance, tuition, and financial aid issues during a crisis.

However, without any of these legal documents, a parent could find themselves shut out of their adult child’s life during a medical emergency.

Young Adults with Special Needs

Finally, young adults with mental disabilities and other special needs may require continued assistance throughout their adult lives. For some of these individuals, guardianship may be necessary, but for those young adults who retain certain abilities and have a trusting relationship with their supporters,  there is an additional legal document they could benefit  from: a “supported decisionmaking agreement”.

A supported decisionmaking agreement is legally recognized in the state of Texas. This is a special agreement between the supporter and young adult that gives a supporter the legal authority to assist the individual with making decisions as it pertains to, or involves, a third party. It differs from a power of attorney because it allows the supporter to make decisions with the adult child instead of independent of them.

As the saying goes, “An ounce of prevention is worth a pound of cure”.

If you would like to receive legal counsel and advice on helping a young adult make a plan for a medical emergency here in the Dallas, Plano, McKinney, Frisco, Allen, & Prosper area, contact me , an estate planning attorney and guardianship attorney for a consultation. In addition to in-person consultations, I am also available by teleconference and videoconference.