Not long ago, my nine–yearolddaughter informedme that we had “absolutely nothing”to eat in our house. When Ireplied that the pantry was fullof food, she insisted that noneof it was edible. “Why on earthnot?,” I asked. “Because, Mom,it’s all pantry–fied!” At my mystifiedstare, she continued, “don’tyou know that if food stays inthe pantry for too long, it becomespantry–fied?!” Somehow, the word “stale” just didn’t workfor Paloma.
I understand her point, though. Sometimes you just need newwords. So, it’s time to discuss a properly “Texa–fied” estate plan.As we all know, things are sometimes bigger, and often very different,in the Lone Star State. Writers like J. Frank Dobie spent theirlives recording stories of “Old–Time Texas,” and Texan history is fullof tales of “Texians” who transferred their assets in unusual ways.There are countless stories of money buried in fields or powderkegs, and our statutes and case law certainly reflect it.
Along those lines, it’s important to know that “estate planning”is not only for those with substantial wealth. Each of us shouldmake sure that our preferences for medical care, wishes for the careand support of our minor children, and plans for the distribution ofour assets are in writing.
A basic Estate Plan should include the Last Will and Testament(which disposes of the property the person owns at the time ofhis or her death and provides for the guardianship of any minorchildren) and several different documents which appoint others tomake decisions during a long–term illness or disability. It shouldalso include documents relating to the decisions made at the timeof death.
A more complex Estate Plan will address estate tax planning,the establishment of trusts, and the possible avoidance of probate(the court process which determines the heirs and distributes theassets).
In the event that a person dies without a Will in Texas, or witha Will that doesn’t conform to Texas law, the assets in his or her estatewill be distributed according to the Texas Probate Code. Texaslaw also contains provisions for appointing guardians for minorchildren whose parents die without valid Wills.
This fact can make a HUGE difference in a family’s lives, if theprovisions in the Texas Probate Code are not what the deceasedwould have wanted. This is often the case in situations where thedeceased was married more than once and had children with differentspouses.
Likewise, if an individual becomes legally incompetent (as determinedby a court or by two physicians who state, in writing, thathe or she is no longer able to make decisions), Texas law will enableanother person to make decisions for him or her. Unfortunately,such an appointment may also not conform to the wishes of theincompetent individual.
Documents from other states can also be confusing, or evenineffective in Texas, as they often contain terms which differ fromthose used in Texas documents. Generally, if presented with competingdocuments, a bank or health care provider in Texas willchoose the Texan version.
Finally, why does Texas law matter? Why can’t a survivingspouse, for instance, return to a different state and probate the estate?
The answer is simple: if you own property in Texas (your home,for instance), the estate will most likely be probated here, accordingto Texas law. And, obviously, if you are rushed to a hospital here, allmedical decisions will also be governed by Texas law.
So, don’t have a “Texa–fied” estate plan? Y’all better take care ofthat!
