Estate Planning —It’s Not for the Faint-hearted

By Heather Tessmer
Tuesday, October 24, 2017

Estate planning is telling the courts what to do with your stuff in case you die. When it comes to estate planning, everybody needs something. Figuring out what that “something” is can be difficult.

Heather Tessmer

From the student starting medical school to the expert in his field, each person needs an estate plan that is tailored to his or her needs at that particular time. Estate planning needs to be revisited often and updated to fit the changing needs of the particular person.

You have probably heard that if you don’t have a will, the state of Texas will decide what happens to your property. This is true. It has already been decided by the Texas legislature and set in stone in the Texas Estates Code. The Estates Code describes what will happen to both separate and community property. When you are married, all property is presumed to be community property unless you can prove that you had the property prior to marriage, acquired the property by gift or inheritance, or sometimes, by a settlement in a personal injury lawsuit. With that in mind, here are the different scenarios, sometimes very complex, that can take place when you pass:

1. If you are married with children:

  1. Separate personal property:
    1. 1/3 to your spouse; and
    2. 2/3 divided equally among your children.
  2. Separate real property:
    1. Children take all equally; but
    2. Subject to a 1/3 life estate of the spouse.
  3. If you are still married to the other parent of all of your children, then all of your community property goes to your spouse.
  4. If you are married to someone not the parent of all of your children, then all of your children will take your share of the community property.

2. If you are married with no children:

  1. Separate personal property will go to your surviving spouse.
  2. Separate real property:
    1. If both your parents are alive:
      • each will take 1/4; and
      • Your spouse will take 1/2.
    2. If only one of your parents is alive, but you have siblings:
      • Your parent will take 1/4
      • Your spouse will take 1/2, and
      • Your siblings will equally share 1/4.
    3. If only one of your parents is alive and you have no siblings:
      • Your parent will take 1/2, and
      • Your spouse will take 1/2.
    4. If you have no living parents, but you have siblings:
      • Your siblings will take 1/2, and
      • Your spouse will take 1/2.
  3. If you have no living parents and no living siblings, then your spouse will take all.
  4. Your spouse will take all of your community property.

3. If you are unmarried with no children:

  1. All of your property will be divided between your mother and father, if living;
  2. If only one is living, then 1/2 to the living parent and 1/2 split among siblings;
  3. If only on parent is living and you have no siblings, all will go to the parent; and
  4. If neither parent is living, then all is split among your siblings.

Even if one of these scenarios is the way you would want your property to be handled, it is typically easier to have a will so that your beneficiaries are not required to go through the “intestate process.” This process can be arduous and expensive and requires the court to be closely involved. A simple will can bypass those difficulties.

“Estate planning” encompasses many different documents. As a medical student, you may have only needed a medical power of attorney so that your mom or dad could make a decision concerning your health if you were ever unable to do so yourself. As a married intern, you may need to add a will, durable power of attorney and a “do not resuscitate” order. If you start your own business, you will need protection from liability and will want to select the correct business form. As you become more successful, your net worth might be getting close to the inheritance tax limits and it might be time to think about a family trust. And ultimately, there might come a time where you need to form a foundation to aid in distributing your wealth to worthy causes, other than your children.

It is often difficult to think about planning for a future that you might not be a part of, but your family will thank you for your forethought. Leaving a mess for your children to clean up is not the best answer. So, please, talk to an attorney to see what type of plan would be the best way to protect you and your family … And someone, please, show this article to my mother!

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