Time Well Spent — Signing Estate Planning Documents

By Patty Rouse Vargas
Thursday, April 9, 2020

Physicians devote their lives to ensuring the well-being of their patients but often do not devote time to preparing estate planning documents that can ensure the well-being of their loved ones. By working with an attorney who is Board Certified in Estate Planning and Probate Law, the necessary planning can be done, alleviating the stress and anxiety that arises when such planning has not occurred.

Estate planning documents can take many forms depending upon one’s goals, objectives or concerns. A last will and testament identifies the people that the person signing the will designates to inherit their assets. However, if someone dies without a will, Texas law dictates who inherits their assets, regardless of what the deceased may have wanted. For example, if a person dies without a will and has a child from a prior marriage or relationship, the division of assets can be devastating to the surviving spouse. Assuming the couple’s residence is their community property, the surviving spouse will retain his or her one-half (1/2) community property interest in the residence, with the remaining one-half (1/2) community property interest passing to all children of the deceased spouse, even if the children are minors.

While a “simple” will may be sufficient in the appropriate circumstances, in other situations, a will that includes a trust for one or more of the beneficiaries may be warranted. Including a trust in a will can provide creditor protection to assets left to a beneficiary, which can be critical if the beneficiary is in a high-risk profession, such as a physician. Placing assets in a trust can also help address substance abuse issues of a beneficiary or a beneficiary’s inability to properly manage money. Further, if a beneficiary receives certain government benefits, it is critical that a special needs trust be created to prevent the loss of those benefits. Additionally, it is uncommon for someone to want his or her 18-, 21- or even 25-year-old son or daughter to have unfettered access to any assets he or she might otherwise receive. Placing those assets in a trust can help with the management and distribution of such assets.

In addition to signing a will, additional lifetime documents can be critical components of an overall estate plan, and may include: (a) a statutory durable power of attorney; (b) a medical power of attorney; (c) an advanced directive; (d) a HIPAA authorization; (e) an appointment of guardian in the event of future need; and (f) an appointment of an agent to control the disposition of remains. Significant problems and unintended consequences can arise when lifetime documents have not been executed or are inadequate. For example, if a person has a stroke, it may be unlikely that a statutory durable power of attorney and a medical power of attorney can be executed, which documents might otherwise prevent the need for the appointment of a guardian. Although there are statutes under Texas law that provide for the appointment of a representative or agent in certain circumstances, the execution of the various lifetime documents can exclude certain individuals from serving as one’s agent should there be concerns about the decisions and actions that such individuals can take.

Devoting the time to meet with a board-certified estate planning and probate law attorney to discuss the necessary estate planning documents can start the process of ensuring the well-being of loved ones. With the execution of documents that are tailored to meet one’s goals, objectives or concerns, any existing stress and anxiety can be alleviated, thereby enabling a physician’s focus to remain devoted to ensuring the well-being of their patients.

Patty Rouse Vargas is board-certified in estate planning and probate law by the Texas Board of Legal Specialization. Vargas concentrates on the representation of individuals with respect to estate planning, family wealth transfers and asset protection, probate, trust formation and administration, and guardianships. For more information, contact Vargas at 210-853-5882 or pvargas@dslawpc.com.