Meeting with a lawyer to have your Will drafted is easier than you might think. You may be surprised to find out that you do not need to bring a lot of financial documents. For information on probating a Will when a person dies, please click here.
The following is a description of the types of information you will want to think about before meeting with a lawyer. However, you do not need to have all of the answers before meeting with a lawyer, because he or she can help guide you to answers where you are unsure.
The following assumes that you are married and have children, but most of the questions would be similar whether you are single, re-married, have adult children, or no children.
If your spouse survives you.
If your spouse survives you, my basic Will provides that all of your estate will pass to your spouse. If you desire a different result, how would you like your estate to pass? This can be especially important with second marriages and children from a previous marriage.
If your spouse does not survive you.
If your spouse does not survive you, my basic Will provides that all of your estate will pass to your children in equal shares. If you desire a different result, how would you like your estate to pass?
If your spouse does not survive you and if one or more of your children also does not survive you, my basic Will provides that his or her share will pass to his or her descendants, if any. If you desire a different result, how would you like your estate to pass?
Naming an Independent Executor.
In Texas, a person is allowed to select an Independent Executor to administer his or her estate. This usually involves preparing an inventory of the estate, overseeing the payment of any claims against the estate, and distributing the estate to the beneficiaries named in the Will. You will want to list your first (often the spouse), second, and third choices of persons to serve as your Independent Executor.
Establishment of a trust for minor beneficiaries.
If you have minor children, or anticipate having children (or other minor beneficiaries, such as grandchildren), my basic Will includes provisions in your Will that establish a trust for the minors in case they become beneficiaries under your Will prior to an age that you believe they can competently manage their inheritance. If you desire to include these trust provisions in your Will, you will want to think about the age at which your children should inherit your estate free from trust (i.e. 18, 21, etc.- 25 seems to be an often used age).
Naming Trustees.
If you set up a trust in your Will for children, you will want to think about your first, second, and third choices for whom you wish to serve as Trustee of the trust. The Trustee will be responsible for managing and investing the assets of the trust and making distributions as necessary, in his or her discretion, for the maintenance, support, welfare, education, illness, or disability of the children.
Naming Guardians.
If you have minor children, one of the most important reasons to have a Will is to name who you would want to serve as Guardian of your minor children (in case your spouse is no longer living at the time of your death). You will want to name first, second, and third choices. You and your spouse must agree on naming the same persons in the same order in your Wills to prevent a conflict if you should die together.
Other documents to consider.
There are four other documents that are commonly recommended when a person is drafting a Will.
1) The Durable Power of Attorney allows you to designate an agent who will have the legal authority to make decisions and manage your affairs should you suffer an injury or some other diminution of mental ability that prevents you from handling financial matters yourself. I usually recommend that spouses appoint each other as their agents to avoid the expense and trouble of a spouse having to go into court to become the court-appointed guardian of their spouse.
2) The Durable Power of Attorney for Health Care allows you to designate an agent who will have the legal authority to make any and all health care decisions for you should you ever become unable to make the health care decisions yourself.
3) The HIPAA Authorization will allow you to designate persons with whom doctors can discuss your medical condition. At the very least, you will want to name the person you have named as an agent in your Durable Power of Attorney for Health Care so that your agent can make informed decisions.
4) The Directive to Physicians and Family (also known as a “Living Will”) informs your family and physicians of your desire on whether to withhold or withdraw life-sustaining procedures under certain circumstances. These circumstances generally would require, at a minimum, that two physicians have certified that you have an incurable terminal condition caused by injury, disease, or illness and that life-sustaining procedures would serve only to artificially prolong the moment of your death. The purpose of a “Living Will” is to allow you to prevent your estate from being drained by “unnecessary” medical expenses just before death. Some people want to have the “plug pulled” and others do not. This document allows you to express your desires one way or the other.
If you have any questions regarding any of this information, please feel free to contact me.
Disclaimer: Nothing in this website is intended to provide you with legal advice, nor is it intended to create an attorney-client relationship. Before I represent any client, the client and I will sign a written retainer agreement. If you do not have a signed, written retainer agreement with me, I am not representing you and I will not be taking any action on your behalf.
