Adriane-Grace Blog - 1200 x 628

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.

Orphan Annie

How to Choose a Guardian for Your Child

Orphaned children are not just the plot of a fictional book or horror movie, but a fact of real life. When thinking about our children, nobody wants to consider their untimely death. However, choosing a guardian for your child is just as important as your decision for your child’s education, healthcare, and religious or moral training.

Why Parents Should Choose Their Child’s Guardian

When a parent fails to legally designate a guardian for their child, the results can be devastating. Real life examples include (1) relatives fighting in court over who will be the orphan child’s guardian; (2) court-appointed guardians who mismanage the orphan child’s assets; (3) court-appointed guardians who are too old, infirm, or negligent; or (4) informal caregivers who steal the Social Security benefits of the orphan child in their care.

If a parent dies before designating a guardian, a state court must make that decision. And those decisions are dictated by state  guardianship laws. In Texas, our state’s guardianship laws state that the child’s relatives in “the third degree by consanguinity” (pronounced CON-SAN-GWEN-IT-EE) have the right to be appointed guardian. Included in that definition is living great-grandparents, grandparents, and adult aunts and uncles from both the mother’s and father’s side of the family. And it’s the oldest generational relatives who have the highest priority (think: grandparents).

Not only is that a lot of people who could argue, fight, and protest, but some of them may include people who the parent would never trust with their child’s care.

Who Should a Parent Designate as their Child’s Guardian?

A lot of times parents fail to choose a guardian for their child because they struggle to find someone who is both a good caregiver and is financially responsible. Fortunately, in Texas, we allow parents to designate different people for those roles. A parent can choose a guardian of the person of their child, and separately, a guardian of their child’s estate. The guardian of the person has the duty of raising the child and providing for their basic needs. The guardian of the estate is responsible for managing the money or property the child will inherit from their parents and also has the right to file lawsuits on behalf of the child.

Careful consideration should be given to the two guardianship roles and to the people in the child’s life who could fulfill those roles responsibly. Parents should also consider whether a court would agree with their selections for guardian. Does this person have a criminal history? Do they have enough experience or education to raise a child? Do they have any issues with money such as bankruptcies or poor credit?

Finally, if parents are choosing a different person in each guardianship role, consideration should also be given to the relationship of the two people designated. Do they know each other well enough? Will they get along? Will they act in the child’s best interest when it comes to making decisions of financial significance? Or, will they use their respective positions as bargaining chips for withholding access to the child?

How to Legally Designate a Guardian for Your Child

Designating a guardian is more than just telling your friends and family about your wishes. You also need a legally defensible plan. In Texas, a parent must make their advance designation of guardian for their child in writing. The designation can be made in a stand alone document or in a Will. Either way, the designation must be signed by the parent and two witnesses. A parent’s legal designation must be honored by a judge unless the person designated is otherwise disqualified by law.

Because an advance designation is admissible in a later guardianship proceeding, parents should consider hiring an estate planning attorney to assist them with properly documenting their choice(s) for guardian. An estate planning attorney can also assist parents with preparing additional legal documents such as a trust for their child. A trust could avoid the need for a guardian of the child’s estate and gives the parent greater flexibility to appoint a bank or other corporate fiduciary to act as trustee. This can be particular useful if the parent expects to leave their child substantial assets that require more complex financial management skills.

Designating a guardian for your child is essential to preserving your legacy. Don’t delay.

If you have questions about guardianship for your child in the Dallas, Plano, McKinney, Frisco, Allen, & Prosper area, contact me, an Estate Planning and Guardianship Attorney, for a consultation. In addition to in-person consultations, I am available by teleconference and videoconference. I have assisted and advised many parents with designating guardians and trustees for their children. Additionally, I have successfully represented and assisted newly single parents and caregivers in probate and guardianship proceedings involving minor children. 

Avoid Probate Image

7 Ways to Avoid Probate

Can I estate plan to avoid probate? In short, yes, there are some ways to exclude assets from probate.

What is Probate?

Probate refers to the legal process for distributing the assets of a deceased person, and often requires the assistance of an attorney and a court proceeding. Not only does probate come with a cost, court proceedings are a matter of public record. Privacy is also a driving factor in avoiding probate. Some of the below methods provide for the the transfer of assets without any public disclosures.

Here are a few estate planning methods for probate avoidance in Texas:

  1. Living Trust—In Texas, a fully funded Living Trust could potentially avoid the probate process. Any assets transferred to the trust can be administered and distributed according to the terms of the trust, even after the creator of the trust dies, and without the need for a court proceeding.
  2. Lifetime Gifting—Why wait until you die? You can transfer your assets during lifetime as a gift, and once that transfer is completed, the assets are not subject to probate. Gifting is also a great way to plan around potential estate taxes because certain lifetime gifts are excluded from the federal estate gift tax.
  3. Payable on Death accounts—Many financial institutions offer checking, savings, and brokerage accounts with a payable on death option. This is a contract between you and the financial institution that tells them who to pay the account balance to upon your death. The person you designate as the beneficiary of the account has no right to access account funds during lifetime. However, caution should be exercised here. Financial institutions often include terms in their depository agreements that give them the option to apply account balances at death to unpaid fees or even loan balances before distributing any funds to your designated beneficiary. Additionally, these account funds could be subject to garnishment for the payment of funeral expenses.
  4. Beneficiary Designation(s)—This method allows you to designate a beneficiary of the proceeds of a life insurance policy, or funds saved in a retirement account, upon your death.
  5. Transfer on Death Deed (TODD)—this is a Deed that providers for the transfer of real estate upon the death of the owner. If the deed is properly drafted, executed, and recorded in the deed records prior to death, the real estate will transfer to the beneficiary designated on the deed without the need for probate.
  6. “Ladybird” Deed—This is a Deed similar to a Transfer on Death Deed, because the effect of this deed is to transfer real estate to a person named on the deed without the need for probate. Users of this method should also proceed with caution and consult an estate planning attorney because this method has no statutory basis.
  7. Affidavit of Heirship—This method is used after a person dies, usually by the heirs of the deceased person’s estate during a real estate sales transaction in which all parties are agreed. An Affidavit of Heirship simply documents facts concerning the identity of the deceased person and his or her heirs and is filed in the deed records.

Plan for Avoiding Probate

As the saying goes, “the best laid plans of mice and men often go awry”, and engaging in self-help to avoid probate is no exception. Consult an estate planning attorney or probate attorney if you have any concerns about the probate process. Most of the time, probate cannot be avoided. Too often people leave behind assets that they neglect to plan for and most of the above-listed methods require careful, advance planning. Additionally, financial institutions prefer to act under court documents that appoint someone to act on behalf of the estate.

However, probate complications can be mitigated with careful estate planning. Moreover, probate can be a great tool for dealing with the debts a person leaves behind and should be carefully considered anytime someone dies with substantial debt.

If you have questions about estate planning to avoid probate here in the Dallas, Plano, McKinney, Frisco, Allen, & Prosper area, contact me to discuss further. In addition to in-person consultations, I am also available by teleconference and videoconference. 

Life Planning image

Estate Planning During Uncertain Times

Is there a Right Time to Estate Plan?

Absolutely. When it comes to estate planning, there is no time like the present. Illness, death, and taxes are some of the few certainties about life and are also good reasons to think about estate planning. The problem is that there is usually no known timeline for these events. Thus, if you intend on planning for these events, it’s best not to wait.

Nobody sees an untimely death coming, but we are now living during unusual circumstances. COVID-19, a novel illness, with no vaccine and no known cure, is forcing all of us to face our mortality. Although the disease, like many other flu-like illnesses, is most lethal in our elderly and immune-compromised populations, it is also inexplicably striking down young, and seemingly, healthy individuals.

How to Make Life Planning Decisions

With the knowledge of an indiscriminate virus on the loose, why wouldn’t you choose to estate plan? To make important life decisions? Yet, what I am hearing repeatedly from colleagues, friends, news, and Internet chatter is that people are struggling with making good life decisions. I call it “analysis paralysis” or “reactive” living, and it’s an unstable state of being.

If you are having difficulty making life decisions, the best way to start is to seek out good counsel. This can be friends and family, but when dealing with any financial or legal decision, it’s best to consult the professionals. As an estate planning attorney and legal counselor, I am called upon regularly to assist with making important life decisions. Not only do estate planning attorneys have knowledge about probate and estate administration laws, but many of them, like myself, have knowledge of the negative consequences of inaction. This information can be very instructive in decision-making and life planning.

As for when to make important life decisions, the time is now. And not just because a novel coronavirus is threatening our way of life, but because planning and making well-counseled decisions leads to a more positive life experience. When we are proactive in life, we can generally handle a financial or emotional setback.

So, go, make that important life decision–whether it’s getting back to something you enjoyed about life (albeit in a socially responsible manner), or to start creating a stable future.

If you would like to receive counsel and advice on life planning and estate planning during COVID-19 here in the Dallas, Plano, McKinney, Frisco, Allen, & Prosper area, contact me to discuss further. In addition to in-person consultations, I am also available by teleconference and videoconference. 

 

COVID 19 Design

What is a Living Will?

And what you need to know about a Living Will during the COVID-19 pandemic.

When you are admitted to the hospital for treatment, you will be asked if you have any estate planning documents like a “Living Will”. In Texas, we call this document a “Directive to Physicians and Family or Surrogates” (or “Advance Medical Directive”, for short). But what is this estate planning document really about for our clients based in the Dallas, Plano, McKinney, Frisco, Allen, & Prosper area?

A “Living Will”, or Advance Medical Directive, is your legal way of telling your family and doctors whether you want “life-sustaining treatment” if you become gravely ill. A “life-sustaining treatment” is exactly how it sounds–a medical treatment that keeps you alive no matter your underlying diagnosis. In Texas, a “life-sustaining treatment” could include food and water administered through a tube in your vein, or through your gastrointestinal tract. It could also include “mechanical breathing machines”, or “ventilator”, as the term is more frequently used in the news lately.

Living Will, Ventilators, and COVID-19.

The American Thoracic Society has explained that “[a ventilator] helps support a person until other treatments become effective, or the person gets better on their own.” However, in the case of COVID-19, there is currently no known cure or vaccine. There is also a lot of speculation about how this novel illness should be treated. Yet, there is ongoing public and private planning surrounding ventilator use and the availability of ventilators during the COVID-19 pandemic. Therefore, not only should you be discussing the risks and benefits of ventilator use with your medical providers, you should also communicate with your loved ones about your wishes for end-of-life-care and estate plan.

With so much unknown about COVID-19 right now, having these discussions is at least one way to provide some certainty during life.  A Living Will allows you to state in advance, not only whether you approve the use of a ventilator when your life is threatened by COVID-19, but also place conditions on its use.

If you have further questions about a Living Will or Advance Medical Directive here in the Dallas, Plano, McKinney, Frisco, Allen, & Prosper area, contact me, a local estate planning attorney, to discuss further.

For questions about the risks and benefits of utilizing life-sustaining treatments such as a ventilator, please speak with your treating medical provider.