Austin Trust and Will Attorneys

Contact The Jones Law Firm PC online or call (512) 394-4289 and tell us you want a complimentary meeting with one of our Austin trust and will attorneys to learn how we can help you.

Differences Between Types of Wills & Trusts

• Last Will & Testament: The most fundamental part of any estate plan, the last will and testament is a legal document that allows you to make vital decisions upon your death. Wills aren’t just about the distribution of property; wills allow you to appoint guardians over minors in your care, appoint managers to handle your assets and property, and appoint an executor who will make sure your decisions are respected after death.
• Pour-Over Will: These wills only work in connection with a trust. A pour-over will is a legal order that automatically transfers a decedent’s assets to a previously established trust, which puts distribution under the control of a grantor. This kind of will acts as a “catch-all” for any assets not specifically mentioned in a will or not funded into the trust by the grantor.
• Revocable Living Trust: In Texas, a revocable living trust allows a settlor to use their assets while they’re alive while ensuring assets are transferred to beneficiaries after death. A revocable trust offers maximum flexibility to estate planners, as they can be altered or eliminated at any time during the settlor’s life. By contrast, irrevocable trusts cannot be altered.

What Makes a Valid Will in Texas?

In Texas, there are requirements for a will to be valid:

1. The testator must have legal capacity, which means the testator must be 18 years or older, must be legally married, or must be a current member of the armed forces;
2. The testator must have testamentary capacity, which means you must be of “sound mind.” Texas courts have ruled that a testator has testamentary capacity if the testator has the mental ability to understand:
   • How all these elements relate so as to form an orderly plan for the disposition of his or her property;
   • The fact that he or she is disposing his or her assets; and
   • The persons who are the natural objects of his or her bounty (e.g. his or her relatives);
   • The nature and extent of his or her property;
   • The effect of making a will;
   • The fact that he or she is making a will;
3. The testator must have intent, which means you intend to make a writing that dictates how your property will be distributed upon your death; and
4. The will must be executed with certain formalities. What formalities are required depends on the type of will that is executed.
5. An attested will is a will that is not wholly in the testator’s handwriting. To be valid, it must be:
   • Signed by the testator or by another person at the direction of the testator (both must be physically present with each other and the witnesses at the time of the signing);
   • Signed in the testator’s physical presence by at least two credible witnesses who are at least 14 years old; and
6. If the will includes a self-proving affidavit, the testator, witnesses, and a notary all have to sign the self-proving affidavit in each other’s physical presence (though an online notary may sign via video-conference in real time if identities are verified by a third party).
7. A holographic will must be written wholly in the handwriting of the testator, with no typed or graphic information anywhere within the will. It must be signed by the testator, but there is no requirement for a notary or witnesses.

If you fail to execute a valid will, your property will pass via Texas’s intestate succession laws, which can be costly and time-consuming for those you leave behind.

Different Types of Power of Attorney (POA)

In general, power of attorney is the legal authority to make decisions on another person’s behalf when they’re incapacitated. POA falls into two categories: durable and nondurable. Additionally, there’s a subtype of POA called “medical power of attorney.”

Granting medical power of attorney means someone has been appointed to make medical decisions for someone when they’re ill or unable to make decisions on their own, like if they fell into a coma or suffered a brain injury. Medical POA is an example of durable power of attorney, which is any POA appointment that remains in place when you’re incapacitated. There are some powers of attorney that expire when you become incapacitated or ill; for obvious reasons, medical POA is always durable.

Granting Medical POA Through an Advance Healthcare Directive

An Advance Healthcare Directive (or “Advance Directive”) is a binding document that describes how you’d like to be treated if you’re unable to make decisions on your own behalf. Advance Directives can include Do Not Resuscitate (DNR) orders, specific guidelines for what kind of treatment you want or don’t want, as well as what conditions your Advance Directive applies to.

The other key component of an Advance Healthcare Directive is the granting of medical power of attorney to a loved one or caretaker. This ensures that if your doctors need to make treatment decisions you didn’t anticipate in your living will, there will be someone who has the legal authority to decide on your behalf. Granting medical power of attorney offers you and your loved ones clarity regarding how to respect your wishes in a difficult moment.

The Two Roles of Guardianship

The court appoints two types of guardianship responsibilities: guardianship of the person and guardianship of the estate. While one person can take on both roles, they each have distinct responsibilities. Guardianship of the estate grants authority for making financial decisions, which includes the management of all income, money, property, or personal assets. Guardianship of the person grants authority for making decisions regarding healthcare, nutrition, transportation, and shelter; basically any physical needs fall under this umbrella.

Is Estate Planning Only for High Net Worth Families?

Don’t be deterred by the images conjured by the word “estate”; estate planning benefits families with small or mid-sized assets, too. Estate planning answers a fundamental question everyone should ask themselves: “what happens to my family after I die?” Our Austin trust and will attorneys understand most people avoid asking that question, leaving families in confusion and legal disputes if a family member passes away unexpectedly.

Why Do I Need An Estate Plan

One compelling reason for owners of small or mid-sized estates to do estate planning is to shorten the probate process. Probate is expensive and renders your estate a matter of public record; estate planning could preserve your family’s privacy while avoiding the costly delays that come with the probate process.

Another reason to do estate planning now—even if you’re relatively young and healthy—is to offer clarity about what you want in the event that you’re incapacitated. If you’re in an accident or fall ill, the last thing your family needs is more uncertainty about what you want or need.

To learn more about wills and estate planning, contact Austin wills attorney from The Jones Law Firm PC today!