Estate Planning Series: What are the "basic documents?"

The most basic estate planning consists of the following documents:

1. Will

2. Medical Power of Attorney

3. Directive to Physicians

4. Durable Power of Attorney

5. Legal Guardianship of Child after Death

6. Burial Insurance*

A very brief synopsis of these documents:

Will

The purpose of a will is to pass on property upon the death of the testator. In Texas, if the testator is married, he/she may not pass community property to any person other than the surviving spouse without the spouse's agreement. A testator may pass separate property to anyone he/she chooses. Separate vs. Community Property will be discussed later in the series.

If a married person dies without a will, his/her property passes under the state's intestacy laws. In Texas, the decedent's part of the community property automatically goes to the surviving spouse provided that the decedent does not have any surviving children who are not also the children of the surviving spouse. If the decedent has a child who is not the surviving spouse's child, however, the decedent's part of the community property passes to said child. If the decedent has separate property, any child, whether born to or outside the marriage, gets 2/3 of the property and the surviving spouse gets the remaining 1/3.

If a will is handwritten, it must be written wholly in the testator's handwriting or it will be invalid. If drafting a typewritten will, a self-proving affidavit will make the probate process flow more smoothly for your heirs. A self-proving affidavit is a document notarized by 2 or more persons, over the age of 14, who witnessed the signing of the will. It is not necessary that they read the will, it is only necessary that they witnessed the signing. The witnesses should not be an attorney who drafted the document or the person who notarized the document.

Medical Power of Attorney

A Medical POA gives the designated person the power to make medical decisions on behalf of the person giving the power. In Texas, if there is no Directive to Physicians, the MPOA may also serve as the one who makes the medical decisions regarding life sustaining treatments.

Directive to Physicians

This document relays the wishes of the signor regarding the course of medical treatment for terminal or incurable illnesses. In Texas, it is not necessary to have both a Directive to Physicians and a Medical Power of Attorney. You should have both documents, however, if there is any possibility that you will move to another state that requires a Directive. Furthermore, you will need both documents if the person serving as the Medical Power of Attorney does not want the responsibility of making a possible life-ending decision about your medical treatment. Directive to Physician and "Living Will" are often used interchangeably.

Durable Power of Attorney

This document gives the designated person the power to make business decisions on behalf of the person giving the power. The Durable Power of Attorney either takes effect immediately or upon the incapacitation of the designator. The powers in the Durable Power of Attorney may be as broad or as narrow as the designator desires.

Legal Guardianship Child after Death
This document appoints the person (persons) who will obtain physical custody of your child(ren) upon death. If you are married, it is important for you and your spouse to come to a consensus and consider having identical clauses in your wills in the event of your simultaneous death. Please be aware that whether married, separated, divorced, or never married, the surviving parent always has the first right to custody of the child if his (or her) parental rights have not been terminated.

Burial Insurance

In order to ease any financial burden that your family may face upon your death, you should obtain a burial policy or save for your burial expenses if they are not included in a life insurance policy.

The key is that it is vital to discuss your wishes with your loved ones and your attorney and put everything in writing. If you would like further information, you may contact me at miriamnicole@miriamnicolehuffman.com or leave a comment.