Do You Know Where Your Will is Located?

I will often have people call to safety-deposit-boxupdate their will.  When I meet with them they usually have a copy of the will to show me.  I will usually ask them if they know where their original will is located.  Most know – or think they know – but it always amazes me how many people aren’t sure where it is.

In these times, photocopies and digital copies are very common and generally accepted as “legal” for most purposes.  However, in some circumstances the original is required.  An individual’s will is one such circumstance.  Upon the death of an individual, in order to probate a will, the original document must be presented to the Clerk of Superior Court.  Copies of the will are generally not accepted, or at the very least require more complex and costly procedures be followed to establish the terms of the will.  At first glance, this may seem like a harsh result, but when you consider the rationale, this law actually does make sense.  There is a presumption that when the original will cannot be located, it was intentionally destroyed for purposes of revoking the will.  It is too great a burden to expect the maker of a will to locate all photocopies and to destroy them as well.  Therefore, the original must be produced.

So, do you know where your original will is?  And if you do, will your family know where to find it once you pass away?  The best places to keep your will is someplace “safe.”  Opinions vary on just where that is and to some extent it depends on how an individual handles their own affairs.  Some people prefer a fireproof safe kept in their home, a safety deposit box at a bank, or in the vault of the County Clerk.  There are advantages and disadvantages to each of these options.  The main thing is to make sure your executor knows where you are keeping the will or at least make it easy to find upon your death.  And if you are using a safety deposit box at a bank, make sure your executor will have access to it upon your death by adding them to the signature card at the bank and providing them with a key or letting them know where to find a key.

This may seem like basic recordkeeping to many people, but you would be surprised at how often family members know their loved one had a will, but they just cannot locate it.  There have even been situations where years after the decedent’s death a family member stumbles upon the will, after the property has already been divided up according to intestate succession (the law for estate distributions for individuals who die without a will).  Don’t let this happen to you!  Put your will in a safe place where your loved ones can locate it when the time comes.

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Basics of a Texas Will

A Will is a legal document that has several old willfunctions.  It typically allows you to identify your beneficiaries, designate the way in which your property will be distributed, nominate an executor to manage your estate and distribute it according to the wishes expressed in the Will.  It can also disinherit people, nominate a legal guardian for any minor children, provide for trusts to hold your gifts to some or all of the beneficiaries and describe special terms and definitions to be used in construing the Will.

To make a valid Will in Texas, you must have legal capacity, testamentary capacity, and testamentary intent, and follow certain formalities.

  • Legal capacity.  In Texas, legal capacity is defined as the person being 18 years of age or older, being or has been married, or being a member of the armed forces of the United States.
  • Testamentary capacity.  To have testamentary capacity one must be of “sound mind.”  This means that at the time the person makes their Will they have the mental ability to understand:
    • they are making a will;
    • the effect of making a will;
    • the general nature and extent of their property;
    • their next of kin and the natural objects of their bounty (e.g. their relatives and loved ones);
    • the fact that they are disposing of their assets;
    • have sufficient memory to collect in their mind the elements of the business transacted and hold them long enough to form a reasonable judgment about them.
    • Testamentary intent.  Closely aligned with testamentary capacity is testamentary intent.  That is, the person making the Will must intend that the document they are signing is making a revocable disposition of their property to take effect at their death.  The actual wording in the Will is often looked to as evidence of such intent.
    • Formalities.
      • Texas recognizes two types of written Wills.  Texas does not recognize oral wills.
        • An attested Will is the most common type of Will. To be valid, it must be in writing, signed by the person making the Will, or another person at the direction of the person making the Will and in their presence, and attested by at least two credible witnesses over the age of 14.  The person making the Will must be present when the two witnesses sign their names to the Will.
        • A holographic or handwritten Will is a Will that must be written entirely by the person making the Will, and it must be signed and dated. The Will does not need to be witnessed by anyone else.  But it is important to note that no writing by others or typing may be part of the Will.
  • Self-proving Affidavit.  The Texas Estates Code provides the person making a Will with the option of adding a self-proving affidavit to the Will.  This is an affidavit containing certain representations that is signed before a notary public by the person making the Will and the two witnesses to the signing of the Will.  When a Will is probated, the self-proving affidavit substitutes for in-court testimony of witnesses as to the validity of the Will, which saves considerable time and expense.

If a Will does not meet all the requirements set forth by the Estates Code, it will be declared invalid, meaning that your estate could be distributed according to a statutory formula rather than the way you would have preferred.  Preparing a Will may seem rather simple, but if not prepared by an attorney focusing his or her practice on estate planning, mistakes can easily occur and misleading statements can be included without proper explanation or definition.  To save your estate additional expenses of probate and to ensure that your wishes are carried out as you intend it is best to consult with an estate planning attorney in preparing and executing your Will.

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Worried about an older relative’s driving?

Reprint from my November 2011 post.

This subject isn’t exactly estate planning, but it is something an increasing number of clients face.  I saw this article on the topic of dealing with parents or other loved ones who are losing their ability to drive safely and how you convince them it might be time to stop driving.  First and foremost, prepare before bringing up a very sensitive subject.

(ARA) – When families are gathered together this holiday season, you may start to notice changes in an older relative’s driving behaviors and begin to have some concerns. You are not alone.

With the number of drivers 70 and older increasing – and one in five Americans caring for an older loved one – the number of adults dealing with concerns about their older relative’s driving abilities is on the rise and many are unsure on how to address their concerns.

Resist the temptation to bring up this sensitive topic: Do your homework first

“Taking time to prepare can alleviate concerns and help you start out on the right foot with a thoughtful, positive conversation,” says Jodi Olshevski, an expert on aging for The Hartford, an insurance company. “Once you get the facts and educate yourself about the resources available, you will be in a better position to help.”

Just because your loved one is older, it doesn’t automatically mean you should be concerned about their ability to drive. Plenty of people over the age of 70 get around just as easily as their more youthful counterparts.

If you’re worried, you should find out if your concerns are valid. Learn the warning signs, get in the car and observe the older driver. “Choose the right messenger – the person who has the best rapport with the driver, and choose the right time – which is most likely not during family gatherings,” says Julie Lee, vice president of the AARP Driver Safety Program.

Warning signs

If you’re concerned about your loved one’s ability to drive, the first thing you should do is get in the car to observe them firsthand. A comprehensive list of warning signs for older drivers and other resources for older drivers can be found at www.safedrivingforalifetime.com. Here are some examples of the types of things you may want to look for:

Fairly minor warning signs: Vehicle dents and scrapes that weren’t there before, single mistakes that appear to be more of a fluke than a pattern.

More serious warning signs: Trouble making left-hand turns, driving in the wrong lane of traffic, stopping in traffic for no reason, consistent and frequent mistakes.

“Making a single, minor driving mistake doesn’t mean that a person needs to stop driving,” says Olshevski. “Families need to look for patterns of warning signs and an increase in frequency and severity of the warning signs.”

Initiating the conversation

Ideally, families should initiate the first conversation about safety long before driving becomes a problem, advises Lee. Car accidents, near misses, self-regulation of driving and health changes all provide opportunities to talk about driving skills.

There’s nothing that can make this conversation an easy one, but there are ways you can promote productive dialogue. If you determine that there’s reason for concern about your loved one’s ability to drive, approaching the situation in a thoughtful and nonthreatening way is important.

“Comments about how much more congested traffic has become recently or about an accident in the news can be a good way to start a conversation about driving safety,” says Lee.  In addition to offering safety courses for older drivers at www.aarp.org/drive, AARP also offers an online seminar for those who may need to approach the topic of driving with older family members at www.aarp.org/weneedtotalk.

Starting the conversation is often the most difficult part and your approach can set the tone for how it proceeds. Here are a few suggestions for starting the conversation in a nonthreatening way that will make the older driver more comfortable expressing his or her feelings.

* “Did you hear about the car accident in the news today?”
* “Have you asked your doctor about the effects of your new medication on your driving?”
* “That was a close call yesterday. I worry about your safety on the road.”
* “I’m worried about you getting in a car accident with all the ice and snow on the road.”
* “I’m glad that you’ve cut down on night driving. I would never want you to drive when you’re not comfortable or feel that it’s too risky.”

Some other tips for a productive conversation include:
* Prepare for the conversation and do your homework.
* Choose the right messenger and the right time.
* Be supportive, positive, factual and nonthreatening.
* Have transportation alternatives ready.
* Note that it might take more than one conversation to address the issue. Let the person know you’re there whenever he or she is interested in chatting about the subject.

Remember, there is no one-size-fits-all solution when addressing problems your older driver may be having behind the wheel. Some issues can be remedied with improvements in physical fitness, increased attention and driving safety classes. Other situations may call for more immediate action.

To learn more about initiating a productive conversation about driving with your loved one, visit The Hartford’s website and download a free guidebook titled “We Need to Talk: Family Conversations with Older Drivers.”

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Estate Planning for your Vacation Home

If you own a vacation home, it may have great significance to you from a personal, family, financial and emotional perspective.   How and whether that home will be passed on to others is a serious concern that can result in extremely disruptive and financially ruinous differences among your family.  Thus, planning for how, when and whether that home will pass to your loved ones is essential.

For example, some of your family members may have very strong emotional attachments to your vacation home, while others may not.  Some of your family members may be able to afford to travel to and use the vacation home frequently, while others may not.  Some of your family members may be able to afford to pay their share of ongoing taxes, insurance, maintenance and repair of the home, while others may not.

Following are some important points to consider in succession planning for your vacation home.

  • Have an open discussion with your intended beneficiaries to find out their interest in ownership of the vacation home.  Discuss their ability to pay expenses and look after the property, as well as their expected use of the property.
  • Find out what the potential tax burden associated with the vacation home will likely be, and consider how this liability will be funded.  Remember taxes or fees may be due at the time of transfer as well as on an ongoing basis.  If there is a liquidity issue, consider available options, such as life insurance if the tax burden will not easily be payable by your beneficiaries or estate.
  • If you are contemplating making a gift of the vacation home to family members during your lifetime or on death, legal and professional advice should be sought on how best to plan and structure the gift.
  • Consider applicable options in your situation to passing down your vacation home, including providing a flexible mechanism in your will allowing your beneficiaries the option to purchase the vacation home or receive it as part of their share of the estate.
  • Consider a co-owner agreement for joint owners/beneficiaries of a vacation home.
  • Consult a professional advisor before purchasing a vacation home located in another jurisdiction, particularly in another country.  If you already own one, seek professional advice on succession planning options.
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The Importance of Special Needs Planning

If you have a special needs child, adult child or you provide for such a person in your will (for example, leaving funds to a special needs person who may be your nephew, granddaughter, or the child of someone you designate in your will), you should consult with an attorney familiar with the government benefits such people typically receive and how to protect them with Special Needs Trusts.  If you do not, you may inadvertently disqualify such person from receiving those government benefits even if they have been receiving them for years.

Reprinted below is an article I posted in 2014 regarding planning for special needs.

How to plan for when your special needs student wants to live independently

Reprinted from Dallas Morning News blogspecial needs

By Robin LeoGrande/Special Needs Insider

Here’s a new idea for students with special needs in North Texas: Having housing available to meet transition plans that include moving into more independent housing options soon after students graduate high school (or “age into adulthood”). This would enable graduates move into independent living with the friends they want to live with and the supports they need.

Families of any age student with special needs should plan for where their student will live as an adult.

So how does a family plan for transition into independent housing? Here are some suggestions.

  1. Estimate at what age the student would like to live independently.
  2. Ask yourself: What are the three most critical independent living skills that the student needs to learn? Practice at home and include appropriate goals in the Individual Education Plan. As these skills improve, add more skills to learn.
  3. Have a plan to save money to help your child live independently. Whatever a family can afford will help.
  4. See an attorney about creating a special needs trust.
  5. Contact your school about getting on the waiting lists for the Medicaid Waiver programs.
  6. Build a network friends with and without disabilities with your child. This will be important to create a home of friends and have a natural support system in the neighborhood.
  7. Complete this short survey on my website, Community for Permanent Support Housing, so you can stay informed of the housing options becoming available in North Texas.

Robin LeoGrande is co-founder and president Community for Permanent Supported Housing (CPSH), an all-volunteer, charity serving North Texas (Collin, Dallas, Denton, Ellis, Kaufman, Rockwall and Tarrant Counties).

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