Lawyer Monthly - January 2024

About Texas Trust Law Texas Trust Law was founded over 25 years ago by Brad Wiewel and has since become one of the leading estate planning law Firms in Texas. Located in Austin, Texas, Texas Trust Law, PLLC, provides legal guidance in elder law, estate planning, special needs planning, asset protection planning, business planning, and retirement exit strategies. for a patient if there were ever an emergency and the injured party did not have any powers of attorney in place. Section 313.004 of the Texas Health and Safety Code gives us the order of priority, for who can make decisions in the absence of a power of attorney: 1) Your spouse; 2) An adult child, with the waiver and consent of all other qualified adult children; 3) The majority of your children; 4) Your parents; and then 5) an individual clearly identified to act on your behalf before you became incapacitated, your nearest living relative, or a member of the clergy. In the worst case scenarios, for example, if the family is in disagreement over treatment or what to do, you can end up in Guardianship proceedings where the Court has to name a formal Guardian of the Person to act on the incapacitated person’s behalf Management of finances is a bit more complicated. Generally speaking, if there is no durable (financial) power of attorney in place, someone will have to be appointed guardian to access and manage any real property and financial assets that don’t have a co-owner or signatory already named. This is not a process any family wants to have to go through as most people want to try and avoid court at all costs. This is why it is so important that people take the time to do this planning in advance. Essentially, a lot of estate planning comes down to control over your future. Yes, the state may have laws in place that allow people to make these decisions, or processes for the court to designate someone who can, but wouldn’t you much rather be able to decide for yourself who the person managing your money, or deciding whether to allow specific medical treatment for you, would be? That is what incapacity planning is all about, having the ability to make choices for yourself in advance so the people you want get to enact your wishes. Are a will and trust the same thing? Wills and Trusts are two different planning paths. A Will, or Last Will & Testament, is a legal document where WWW.LAWYER-MONTHLY.COM 9 you get to say “when I die, this is who I want to get my property and how I want it distributed, and by who.” When someone dies with a Will, if there are any assets(a house, bank account, business, etc…) in the person’s name, the Executor of that Will must go through Probate. That Probate process varies greatly from state to state in time and expense. A trust, on the other hand, is a way to avoid that need for Probate. When someone sets up a trust, they are creating an entity to manage property. Now there are many different types of trusts that are utilized for different reasons. But with general estate planning, the primary trust we are talking about is a Revocable Living Trust. Generally, with these trusts, the same person acts as the Grantor (person creating trust), Trustee (person managing the property), and beneficiary (person for whom the property is managed). The goal with these trusts is to make it easier for people to manage your property if you are incapacitated and when you pass away, and largely, to avoid Probate. An important thing to keep in mind in these Revocable Living trusts is that during the grantor’s lifetime, there is no asset protection, which is a common misconception in the general public. The biggest hardships are oftentimes with blended families, where it is so important that spouses have a solid estate plan in place. No one wants to find out after a spouse has passed away that the house the couple had shared for maybe 30 years does not fully belong to the survivor.

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