Seniors and Estate Planning – 3 Reasons for Hiring an Elder Law Attorney to Draft Your Will
I am Lisa Nelsen, and I have been practicing in the area of estate planning, probate, guardianship, and elder law for more than ten years. Often people want to take a do it yourself approach to their wills but saving money now can cause expensive problems later. Surprisingly, I have also had trouble with wills and trusts written by attorneys who are not elder law attorneys. Would you hire a divorce attorney when you have had a car accident? The same applies to any other area of law.
- Why do you need to hire an attorney to write your will?
People often ask me if they can write down their last wishes or find a form online to create their wills. I annoy them with a typical lawyer answer, “It depends.”
Yes, Texas law allows you to write your own will. A holographic will is a document that is in your own handwriting. This type of will might work if everyone gets along. But if one of your beneficiaries decides to dispute your will, it could become an expensive trial. Rather than having your assets distributed according to your wishes, the court and lawyers will, I assure you, get paid first.
Many people try to save money by purchasing a will form. If no one fights, it might be good enough. Texas courts want to honor your wishes. However, there are many “magic words” that make sure the probate process goes smoothly and they need to be included.
Probate is the court process by which a deceased person’s estate is valued, beneficiaries are determined, an executor in charge of estate distribution is declared, and the estate is legally transferred to the beneficiaries.
For example, Texas law has both independent and dependent estates. An independent estate requires minimal court supervision. In order to have an independent estate, your chosen executor must have your original will, and the will must include specific language stating that you want an independent administration. If it does not include the correct terminology, the judge may require a dependent administration. Under a dependent administration, the court closely supervises every transaction within the estate. For example, if you need to sell a home, you must get court permission to pay the utility bills, hire a realtor, and approve the sale of the home. This quickly becomes costly due to court costs and attorney’s fees.
Even if you have a close, loving family, you do not know how your loved ones will mourn. Ancient grudges come back to life. Siblings may fight over who mama loved best.
- Can’t I just get a power of attorney form online or at my bank?
Yes, you can, but it might not be sufficient. The Texas legislature often changes the laws governing the financial power of attorney. The form that your bank uses, or that you find online, may not include the current law. For example, you can give your agent the power to perform all the steps necessary to apply for public benefits. A good power of attorney allows your agent to transfer real estate and to create and fund trusts. The standard power of attorney does not include that language.
Another common problem is that most people sign powers of attorney to be effective upon your incapacity rather than effective immediately. Elder law attorneys do not recommend this as it can take a few days for a doctor to certify that you are no longer capable of managing your financial affairs. In the meantime, bills will go unpaid, and no one can manage your finances. Making your power of attorney effective immediately allows your agent to step into your shoes as soon as possible.
- What are ancillaries, and why do I need them?
Ancillaries are supporting legal documents, which include a financial power of attorney (statutory durable power of attorney), medical power of attorney, HIPAA authorization (gives your agents permission to speak with your doctors), physicians directive (living will), and appointment for disposition of remains. If you ask your neighbor, the tax attorney, to set up a will for you, the attorney may do nothing more than draft a will. An elder law attorney or estate planning attorney knows the importance of ancillary documents and will ensure to meet all your needs in case of a future disability.
These documents are as important as your will. Without the financial power of attorney and medical power of attorney, your designated agent will not be able to take care of you if you become incapacitated. The only way that someone can take care of you, if you do not have powers of attorney is through a guardianship. The guardianship is an extremely expensive and time-consuming court process that appoints someone to take care of you.
Please don’t be penny wise and pound foolish. Saving money by doing your own estate planning can cost your loved ones in the future. As I tell my clients, I want your assets to be distributed to your loved ones, not to the court system and attorneys.
Nelsen Elder Law
1302 Waugh #997
Houston, Texas 77019