Preparing for College in the Fall

college-move-in-dayWith a new school year about to start, I am reprinting an article I posted several years ago for parents with children going off to college or just moving out of the house.  If you decide you might need to help your children with some planning, please call my office for an appointment.

Are you still the parents of your “adult” children?

In a recent article in the Dallas Bar Association’s “Headnotes” newsletter, Lori Ashmore and Gary Ashmore of The Ashmore Law Firm, PC remind us that while we are biologically still the parents of our adult children, we may not be allowed to act that way.  For example, if your college student is admitted to a hospital, the doctors there may not provide you any information about your child’s condition or injuries.  You may not be able to move your child to a hospital nearer home and your student’s landlord may not allow you to act for your child regarding his or her lease.

Why?  Because in Texas, a person becomes an adult at age 18.  Just as you need estate planning documents to allow others to act for you in certain circumstances, so does your adult child.  “Absent proper estate planning, there is no legal right for parents to make decisions for their children after they attain the legal age of majority.”

So when your child turns 18 and before they move into their own apartment or travel off to college, you should encourage your child to sit down with your estate planning attorney to discuss how to address these concerns.  Documents that should be considered include a Statutory Durable Power of Attorney, a Medical Power of Attorney, a HIPAA Release, and a Directive to Physicians and Family (Living Will).

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Involving Your Entire Family in Planning

extended-familyAs our families grow, the change can be exciting but it should also be a reminder to keep plans updated. As we age, whether we are grandparents, parents, aunts, uncles or parents with small children, we should create or update our estate plans and long-term care plans.

Many people are resistant to having a conversation about estate planning or long term care plans but it’s important to talk to your loved ones so they will know what to do when the time comes. Follow the five steps below to help avoid any conflicts and to make the conversation go smoothly.

Step 1

Set a time. Sometimes the most difficult part is scheduling the family meeting. If everyone lives in different cities, find an event or occasion where you will all be together and schedule the time then.

Step 2

Set an agenda—even if it’s informal. The conversation can change directions so it’s a good idea to try and follow an outline to keep the discussion on topic. It can be helpful if one person prepares notes so everyone knows what has already been discussed and what is still to come.

Step 3

Not everyone will agree or might be surprised that a family member has expectations for them so be prepared for issues that may arise. Once the plan has been laid out and modified if necessary, then go around the table and ask each person for their verbal commitment to support the plan.

Step 4

Your plan will most likely require some interim steps to prepare for future events.  Be sure you create action steps, a timeline for completion and assign them to specific persons to complete.

Step 5

It could be years before this plan goes into effect so make sure and put it in writing and provide everyone with a copy of it.  As action steps are completed or things change be sure the plan is modified accordingly and again distributed to everyone.  If necessary, have another family meeting.  Be sure all relevant advisors such as attorneys, insurance agents and financial planners are consulted to update the plan accordingly.

No one enjoys thinking about long-term care and our declining years but it’s important that we all have a plan in place.

 

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Why Do People Want to Avoid Probate?

courthouse-w-columnsWhen a loved one passes away, people react differently.  This is obvious from attending any funeral; some are stoic, some are very emotional, and many are in between.  But beyond the emotional and grieving process, people also react differently addressing probate.

First, many people have no idea what probate really is.  Some think because the decedent had a will, the probate process is simply the appointed executor distributing whatever assets they can find.  Others know it has something to do with the legal system, but want to avoid it at any cost because of the mystical, mythical horror stories they have heard alluded to.

In reality, probate is an organized legal process for gathering the assets owned by the decedent, paying debts, determining beneficiaries or heirs, and distributing the gathered property in accordance with the decedent’s will or state law.  Because of the nature of the decedent’s estate, some family members don’t need to utilize probate.  But many others are well advised to do so even if it doesn’t appear necessary immediately.

Even with all this knowledge, some people still want to avoid probate for various reasons.  Privacy is a concern for some.  They are afraid all their personal information will be on display to every nefarious character.  Generally, detailed personal information is not included in probate filings.  Even the inventory, which lists property within the probate estate (which often is only a small fraction of a decedent’s entire estate), often doesn’t need to be filed in Texas.

Others are afraid that filing probate will result in a will contest or the filing of claims by creditors (legitimate or otherwise).  This concern can often be avoided by an individual using probate avoidance techniques in their estate planning.  But sometimes those techniques result in complexity and pitfalls that are more serious than the risk of a will contest.

So, there are a few conclusions one can reach from these concerns.  First, if you are concerned about probate, the time to address it is before the individual in question passes away.  Most issues people fear about probate can be minimized through proper estate planning.

Once the individual passes away, with or without a will, we must deal with the facts as they stand.  To properly accomplish the wishes of the decedent, it may be necessary to use the probate process.  The wisest course is to engage an attorney focusing their practice on handling probate matters.  They can advise on whether problems are likely to arise, what alternatives exist to minimize the problems, and whether any other alternatives exist to pass title to the property to rightful beneficiaries and heirs.  The wrong course is to simply do nothing.  You may discover too late that what might have easily been resolved is now a much larger or impossible problem.

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Uncle Harry Was Single When He Died Without a Will

In my last post, we discussed what happens to a person’s estate when they die without a will.  That post focused on the decedent being a married person at the time of death.  This post will consider what happens to the estate of a single person.single-parent

The easiest situation to address is when the single person did not have any children.  In that case, the state looks to parents, siblings or other relatives on either side of the family to find a qualifying heir. So, if parents survive, they inherit.  The process continues until heirs living at the time of decedent’s death can be located.

If decedent died with children (or other descendants), they gain priority over the heirs listed above.  If someone dies and leaves behind no surviving heir, the estate would go to the State of Texas.

If all a decedent’s heirs are of the same level of relationship (for example, all are cousins or all are grandchildren), they will divide the estate in equal shares.  However, if the heirs have different levels of relationship (for example, if some of decedent’s children predecease, leaving children or grandchildren of their own), then the younger generations would be entitled to only the share the older generation would have received had they survived.

As you can tell by this description, the state has very specific laws defining who inherits in various circumstances.  Even the foregoing description is fairly generalized.  In some circumstances, the laws can be ­­­­­­­­complex and not what one might expect.

For example, stepchildren are treated quite differently from adopted children.  The decedent may have served as parent to a stepchild for many years and may have dearly loved the stepchild.  However, without a will a stepchild is unlikely to inherit from the decedent’s estate.

The foregoing is not to say that it is always difficult to deal with the estates of people who die without a will.  But generally, it is more complex than administering the estate of a person who has a will.  The level of difficulty depends in large part on how large the family is, how easily family members can be identified and located, and how amenable all family members are to accept the distribution provided under the laws of Texas or to agree to a different distribution.

Bottom line – you are better off having a will to ensure your objectives are fulfilled.  Regardless of how small you think your estate is, how simple your desired distribution, or how agreeable your heirs, you should speak with an estate planning attorney to get a professional review of your plans.

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