There is no time like the present to begin planning for one’s future. Whether you are creating a simple budget, rebalancing an investment portfolio, or considering the purchase of life insurance, residents across North Texas routinely engage in a variety of what is, essentially, risk-reducing behavior. Preparation is an important aspect of anyone’s life—especially for those who are responsible for others’ well-being. However, few of us take adequate steps to prepare for the time when our road has ended. Indeed, a concerningly low number of Dallas residents have completed perhaps the most important planning strategies available—the estate plan.
Until an immediate need arises, few recognize the benefits advanced estate planning can provide. The cost, stress and amount of time an unplanned estate needs to navigate the probate process should give everyone pause. The probate timelines of courts serving Dallas, for example, regularly stretch beyond 18 months.
And while probate timelines can be lengthy for some, the addition of an advanced estate plan can significantly reduce the time and money loved ones must spend in probate. Understandably, some Dallas residents find it difficult to approach the topic of estate planning. This is normal. But for those who seek to best protect the interests of their loved ones, confronting uncomfortable topics is sometimes necessary. But by partnering with an experienced estate planning attorney in Dallas, you can address these issues head on. Continue reading for an overview of some estate planning basics.
Put simply, estate planning is the process through which one provides instructions for the disposition of his or her property. An “estate” is a legal concept that refers to a right to hold, acquire, or dispose of property. Under Texas law, deceased or incapacitated individuals cannot hold legal title to property. Because of this, estate planning allows one to transfer title of such property upon their death, or other specificied occurrence, to their estate, where it can be distributed to, more managed for the benefit of, the persons of their choosing. An estate may be comprised of countless forms of property, including cash, bank accounts, real estate, investment portfolios, intellectual property, patents, mineral rights, etc. Such assets may be distributed or held in trust in several ways. Many North Texas residents choose distribute property to loved ones, religious organizations and educational institutions. The first step of any estate plan is to determine the goals and values of the estate planner. Once those goals have been established, the lawyer compiles the instructions, in accordance with the planner’s wishes, specifying the disposition of the planner’s property in what is called the “estate plan.” There is no right or wrong estate plan. Indeed, estate plans can range from simple single-page wills to a comprehensive multi-entity legal structures. Some may express concern that their estate plan cannot grow or change as the estate planner’s goals and values do. This is not the case. Estate plans amendments—big or small—can occur at any time. Moreover, it is advisable to periodically review an estate plan to ensure that it accurately addresses one’s current values and priorities. Often, significant life events such as births, marriages and divorces present opportunities to revisit an existing estate plan.
A Power of Attorney is a legal instrument granting a third party the authority to make legally binding decisions on another’s behalf. A person may appoint the power of attorney to nearly anyone, and such power may be limited in various ways. In the past, the will was the principal document in the average estate plan. Wills stood ready to dispose of one’s property after death. These days, recent advances in medical science, mean that we must recognize the fact that a large portion of those currently living will become incapacitated (that is, unable to make legal decisions for ourselves) before death. A Power of Attorney can help in this regard by permitting another person to make such decisions on your behalf. Powers of Attorney can range from simple documents granting a single person all decision-making authority, to very complex with different Powers of Attorney authorized to make decisions only in specific areas. Similar to the Power of Attorney is the Living Trust, which enables the signor (the person for who the instrument is created) to express a preference regarding health care decisions in the event he or she becomes incapacitated. Many Dallas residents have used Living Trusts to provide guidance to loved ones, including resuscitation instructions and end-life-measures.
The will is generally the foundation of any advanced estate plan. The will provides the probate court with instructions for the disposition of one’s estate (that is, property) after death. The will’s provisions express the creator’s, or testator’s, goals. Each will appoints a person or entity to act as its executor. The executor is the manager of the will and the estate’s distribution of the testator’s property during the probate process. (The probate court will have veto power over the executor’s actions). Wills provide for property distributions to persons called beneficiaries. As was mentioned briefly above, the process, or administration, of the will occurs in a legal settling called Probate Court. An intestate death occurs when a person dies without having drafted a will. Because intestate deaths provide no instruction regarding the deceased’s goals or wishes, the probate court will assume the role of executor and distribute the deceased’s property according to Texas law. Recently, some online resources have begun offering “all-in-one” wills. While often cheaper than a will tailored by a lawyer, these offerings’ small upfront savings are only possible through identical, cookie-cutter forms. And while the carbon copy forms can meet the needs of some consumers, it is highly recommended to discuss your goals and circumstances with an experienced estate planning attorney first.
For many, a well-drafted will is often sufficient to adequately address the goals and wishes of most people. However, some Dallas residents may find that a basic will cannot provide a complete solution for their needs. For those who seek more advanced options, trust can offer a highly effective solution. Unlike a will, which is basically a list of instructions, a trust creates a fiduciary relationship between a number of parties. The grantor or settlor creates the trust, sets its terms of its management, and “funds” the trust with his or her assets. The trust is managed by a trustee, chosen by the grantor/settlor, who administers the trust’s property according to the grantor/settlor’s instructions in the formation documents. Trust assets are managed for the benefit of the beneficiaries. The beneficiaries are those who can enjoy the benefits of the trust relationship, such as access to trust capital or income derived from its assets. Generally, these three roles are occupied by separate people, but they can also be occupied by a single individual simultaneously. Unlike wills, trusts retain legal title over their own assets. As a result, trust assets can completely bypass the probate process. By avoiding probate, grantor/settlors can save much of the time and money that is spent in probate. However, the added complexity that often accompanies trust formation and management can translate to increased costs for those seeking the benefits of a trust. Despite this, the benefits trusts can bestow have led to several decades of increased popularity of trusts. Whether your estate would benefit from a trust can be a complicated question, so it is best to seek out a lawyer experienced in both wills and trusts.
If you have questions about how an advanced estate plan can achieve your goals, or if you would like to review your existing estate plan, contact one of the experienced North Texas lawyers at Kirker | Davis LLP to schedule a meeting today.
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