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Wills, Probate, and Estate Planning

Episode 3 - Wills, Probate, and Estate Planning

 

 

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Welcome to the top Texas Lawyers podcast. This podcast is brought to you by the law firm Abercrombie and Sanchez P LLC. 

Your hosts are Brian Abercrombie and Samuel Sanchez. Brian has been practicing law for 18 years and his board certified that sort of legal specialization in the area of family law. Sam has been practicing for 13 years, his license in both Texas and Florida and as a certified mediator. This podcast is for informational purposes only and all views are the opinion of the hosts. It's not designed to provide legal advice for your particular legal matter, and it should not replace the advice of.

Welcome. And we hope you enjoy the topic. Texas Lawyers podcast.

Good afternoon and welcome to the top Texas Lawyers podcast. I'm your host, Bryant Abercrombie, and with me as always is my co-host, Samuel Sanchez. Sam, how are you doing? Doing great, Bryan. We thought we would change our topics up today a little bit instead of talking family law. Let's talk a little bit about a matter that's related to family law. But it's not family law, but it deals with your family.

It's wills and probate and the state planning and why that's important. We always start out our show with some celebrity tidbits and different information about what's going on in the news. So, Sam, I'll let you take it away.

Sure. Sure. Let's talk about the hand of death. Unfortunately, you know, we've had some passings in the entertainment world, and I think they kind of play perfectly into our conversation today, starting off. Let's talk about Eddie money. I don't know if you guys remember Eddie money. Hopefully you do, Brian.

Yes, I do. I'm going to take you home tonight. You know, great song, Eddie.

You know, he definitely had some great tunes, had a pretty prolific singing career, had quite a few hits. He passed away recently from his bout with cancer. And in that, you know, for him, it seemed like at least this is something that was known to him. He'd been battling esophageal cancer, which doesn't sound great, but he'd been battling it for quite a while. So this didn't come as a surprise to him and his family. He'd been married for a long time since nineteen eighty nine. They had five children together. And so, you know, a lot of times we're gonna talk about going forward. You know, this is your chance while you're alive before you get sick to kind of lay out some things that you want to do to preserve life as it exists for your family going forward.

And Eddie was, you know, like you said, it was one of the things we're going to touch on is, you know what? What do you do for planning before you die and what do you do after you die? And and really that your estate plan is really for those four for you to make you comfortable. And for those that are left after you. So what other notable celebrities we want to talk about?

Sure. Sure. Most recently, we have, you know, Rick case. And if anybody remembers the cars, I know I'm going back into my life in the 80s. But these are great bands, great songs. Know. Yeah. They're fantastic and RICO case that, you know, obviously he's probably most famous one for his songs because he had tremendous, you know, quite a few hits, but he married Paulina Porizkova. And I don't know if you remember the Sports Illustrated. I think every kid, you know, that age from, you know, let's say, I don't know, 9 to about ninety five, you following the poor guy who was he was pretty gorgeous. And Rick you know, Rick was a great singer, you know, looking. But seeing him fantastic. He gave us all hope to have. He made us believe that they're there can't be miracles.

There are you know, there are these gracious moments where beautiful women will choose to be with us.

And if I remember correctly, Rick had three marriages and then he had six kids. So two from each marriage, if I remember correctly.

Exactly. Exactly. So, you know, and this presents the kind of different complexities that we'll touch on today as well. You know, blended families are just a fact of life. You know, very rarely are you running into more and more families that have stayed together for years upon years into the latter part of their life. So as a blended family, you know, wills and the packages that we're going to talk about, potentially trust for elders. And, you know, these type of documents that you're going to that are going to help preserve life for your family are going to be really important, especially in that situation where you're trying to say, hey, you know, maybe this I want for children that were born to a previous relationship or even, you know, out of wedlock. So these are gonna be things that are really important to touch on.

And then we had a notable inevitable death from the 90s with, you know, one of our favorite TV shows as a high school and college kids of Beverly Hills 1:51. We talked about that.

Yeah, my man, Luke Perry. I tell you, I can't say how many times I've tried to make my hair look like his guy could wear some chops. He. You know, I mean, this was a guy who, again, multiple marriages, had children from different marriages. He was in the process of getting remarried. And you know, most specifically about him, again, another cancer victim, which is terrible. Hopefully at some point we'll find a cure for that disease. But it was really important to him as he was going through this.

It didn't end up happening that he had a screening and early screening in 2015 that revealed some pre-cancerous growths ended up being the reason that he passed away. But I will tell you that that scare, you know, created the opportunity for him to seek an attorney who winnin created a will and really referenced at least his estate references. That is really important to him, that he was able to kind of preserve things and take care of his children in the manner in which he wanted to. Because of that bill.

And that allowed him to pass things in his estate directly to his children without with with and I don't want to say skipping his wife, but but making sure that the gifts are what he wanted to bequeath to his children actually got to his children.

And that's probably that's going to be one of the things we'll touch on in this discussion. And the only other one of the other notable deaths I can think of this year was a fashion icon, Gloria Vanderbilt, Vanderbilt, whose son is Anderson Cooper on CNN.

I remember my sister wanted a pair of Gloria Vanderbilt jeans like nobody's business. Oh, heck, yeah.

And those are quite the rage. And you know what I mean? She built a huge empire for her family. And, you know, things like that, obviously, the Vanderbilts very famous in American history for their wealth. You know, wills and the documents that we're talking about is really a mechanism for families to be able to preserve wealth from generation to generation. And that's an important thing to a lot of people, whether you have a lot of stuff or a little stuff, making sure that it gets in the hands of the people that you want is really the things that we're going to talk about a little bit today.

So let's say in the end, you don't have to be, you know, Gloria Vanderbilt or Luke Perry and I have a huge estate to need a will. I mean, you just have to own property or you just have to have something that you want to leave to someone else. Let's talk about the basic the basic estate planning documents in Texas, because we're talking about Texas law.

So let's talk about what what we basically have here in Texas. Sure. There's a couple of things that I would recommend that everybody have on file in advance of a will.

First, oring really accompanying the world. We'll talk about these. First one is a durable power of attorney, a durable power of attorney. You know, no one can predict the future. No one knows how their life will end, when it will end. You know, you can look on the news or listen to the radio or one of our reports and see that, you know, a lot of these deaths weren't planned for, you know. You know, Eddie money. He saw it coming for a long time. He'd been battling cancer. Well, Luke Perry had a stroke as a result of things that were going on in his body that he know. It's very quick, you know. So in that situation, you know, as you look at it and you prepare for your family, a power of attorney, what it does is it affords somebody the opportunity to say, if I'm ever incapacitate, you know, I mean, a simple example. It's in the news right now, Brian, is, you know, what's going up in the upper northeast Michigan in those states. We have mosquitoes running around this mosquito borne illness. This triple E had several ideas. Yes. Yeah. It's killing people and, you know, a couple of days. And it's not like you're going to be outside thinking, you know, hey, it's a beautiful evening to throw the ball at my son or, you know, chase my daughter in the backyard playing with bubbles. And you get bit by mosquito. Two days later in the hospital, you're passing away. And you know that even if you don't pass away, let's say it puts you on a respirator, you're not able to make financial decisions. What a statutory durable power of attorney does. Is it afford someone else the opportunity to make legal decisions for you that need to be made potentially maybe selling property or making withdrawals out of accounts? Those kinds of things.

Yeah. Let's talk about the differences there. Say a durable power of attorney that deals with health care matters. And then there's one that deals with financial matters.

That's correct. So, you know, in in the financial section, let's start on that first, this durable power of attorney. It's going to be something that you're going to want to talk to an attorney about because it has long lasting effects. These are typically going to be in effect until revoked. And it basically creates an an agent relationship. So your agent is going to be able to make decisions for you financially, legally up to it, including buying, selling real estate, opening and closing bank accounts, credit accounts, those kinds of things. So basically, anything that you could do financially, you're giving them the power to do. Now in these you can be creative, you can craft certain you know, you can one name multiple agents. But to you can also say, well, I want them to be able to do X and Y, but potentially I don't want them to be able to maybe sell real profit. So it's really important that you talk to an attorney to help carve out this document while you're since you why you have the ability to kind of think clearly, because once you get to a hospital, once you're already, you know, that comes in question. These documents are very difficult to get.

And one thing and one thing I hear a lot from clients is, oh, well, I have a will. I will have a little will.

The will covers you after you die. But but these documents that Sam's talking about, they don't cover you. They cover you before you die.

So let's say you're in a coma for six months or let's say you're in a year and some kind of a state where you can't make decisions for yourself. This is where powers of attorney become critical. And like Sam said, you can cross out the powers that you don't want your power of attorney to have. So if you say, I want them to be able to spend money and pay my expenses, but I don't want them to be able to sell my house, you can certainly make that part of your directive.

So and keep in mind, you can rebuild, say you come out of the coma and you're fine. You can revoke that power of attorney anytime you need to agree to.

Not only that, but. Tell people, you know, go on through. Let's say you're going through the divorce process. You have to remember that these types of documents, they're one because, you know, everybody gets worried. Well, I don't want them to just have this power forever going forward. Can I change it? Yes, you can. You know, what types of situations are going to automatically revoke these types of statuses? You know, a divorce is one of those, you know, where you're not. So if you think I've had a will. You know, you executed it when I was married. I've been divorced since that time. But it still has these agents designated. You still have to update these documents. They are living, breathing documents throughout the course of your life. OK. Let's talk about the directive to physicians. Sure. So a directive to physicians basically says the types of treatment that you're going to be willing to endure to sustain your life.

Should it become necessary? Bill, a lot of people say, you know, I don't want to be put on a ventilator. I don't if I'm brain dead, I don't want my body just staying around so that my family has to endure these huge medical bills or the pain and suffering that accomplice encompasses a situation like that. A directive to physicians basically says these are the things that I'm going to allow you to do to sustain my life or not do. Don't put me on a ventilator. I don't want to be forced. But do it, too. You. I want pain medication to be administered to help ease my pain. On my last days, these are the kinds of things that you can absolutely put in place before it becomes necessary. So that there's no question. You think about the pressure that you save from your family behind in that situation, where instead of them having to make a very difficult decision, you make your life, it's your body. You got to put that in place and take that pressure off you.

Yeah, that's just what I was going to say is it is really for the people that that have to make the decision you're sparing, you're sparing them the difficulty of having to make a life and death decision concerning you because you've already taken care of it.

Correct. And this usually goes hand-in-hand with what we call a medical power of attorney. Now the medical power of attorney again is very similar to that. The durable power of attorney financially, it allows an agent, a designated agent to make decisions for you. So in relation to that, your medical procedures so they can authorize surgery. So what would that be important? Because everybody kind of wants to know, like, how does this come into play? So let's take you out of your memory. Cedric Benson, who is running back for the University of Texas fast, where recently a motorcycle accident. I do. All right. He was a great runner, great athlete, went into the pros. I mean, he was really good at what he did. He was on a motorcycle, I'm sure, enjoying a lovely ride, was involved in a vehicular accident and was severely injured, let's say, during that injury. He went to the hospital and he doesn't have the ability to consent for life. Life, you know, life, lifesaving organ replacement or plasma injections or whatever it may be. If he had designated or executed a medical power of attorney, whoever his agent was in that document could come to the hospital and authorize these types of treatments. So, you know, these are the kinds of things, especially if it's let's say it was something that was you know, I don't say experimental, but let's say I guess I'll use that word for the moment, something that, you know, isn't normal in the course of treatment. It's something that has substantial risk. Well, typically, they're going to advise you of that type of a procedure before they do it, especially if it's optional. Well, when you're you're incapacitated, you can't do that. Your agent has the ability to do that if you have one of these types of documents.

You know, that's a really, really good point, because you really probably want to be able to have somebody you trust, obviously make those decisions for you in the event that you're not able to.

One thing I would I would remind everyone is that Sam and I both have baby boomer parents and then baby boomer parents are getting elderly these days. And, you know, there's there's more and more decisions and things like that that have to be made. And then, you know, just speaking from personal experience with dementia and Alzheimer's, that's something that is a lingering illness that lingers on for sometimes years. And with the patient not knowing, you know, what's going on and not being able to consent to the most basic things, whether that be financial or with health care. So that's where a power of attorney comes into effect. Very, very, very important is if you have a maybe a dementia or an Alzheimer's patient, you have to put them in a facility.

You have to make sure their their bills are taken care of, make sure they're getting the right medical treatment. It's it's very, very difficult on the family. And if, you know, you've put somebody in place that you trust to make those decisions for you, it can certainly ease the burden on a lot of different people.

Absolutely. Not only that, but the financial expense of having to go the other direction. So as an example, let's say this just played out. You don't have these types of documents. The unfortunate, you know, scenarios that play out in life happen to you. You're incapacitated in some way, shape or form or fashion. What does the family do? Well, now they're going to have to chase down a guardianship, which will be a conversation for another day. But just know that those are expensive legal proceedings. You know, what we're talking about is something relatively inexpensive that you could do in advance that really will preserve and eliminate a lot of expensive legal fees associated with trying to get help in that situation. When you do, it indicates.

That's a that's a very, very good point, because the guardianships can be very, very costly, very time consuming and very expensive. So it's something that, you know, this can Didi's these types of documents can can help to avoid those situations and avoid every guy ever having to make those decisions. And in most instances, you certainly don't want there to be, you know, families becoming estranged over who's going to make that decision.

Let's say you have a parent in and I'm a mom or dad has already passed away. The other parent has already passed away. So they can't make the decision. And it falls to a son and daughter to make a decision.

Are you going to have a fight over who what type of treatment or is the part or are you going to make the decision? Okay. I'm gonna select this person to make my health care decisions and we're gonna go from there. So those are those are where these documents become critical because you don't. But your sons and daughters getting into getting into disputes over what to do, and I'm sure, you know, obviously it's difficult on them. And so you certainly don't want them getting into disputes over what the best course of treatment is.

Absolutely emotionally charged and everybody loves you, wants to have the best for you. Not everybody can always agree on what that course of treatment would be better.

So let's let's talk next about what happens after you after you have shuffled off the mortal coil. Let's say you have passed away and now what's left? Well, we have a will, right?

Absolutely. I mean, a critical piece of every person's life. I try to tell family, friends, clients, if you don't have one. The only person that you're doing a disservice to is your family, the people that you love most. You've got to have one.

But let's say lastly, I get this question. Sam, I don't have I don't have any I don't have any real property. I'm not a millionaire. I just have a house. And, you know, basic retirement. I don't have much.

Even so, even so, a will affords you the opportunity to do two things. Specific bequests. Right. It affords you the opportunity to be able to say, have a life insurance policy, even if it's ten thousand dollars, you know, five thousand dollars. What do I want that money to go to? Well, you know, I don't want my my kids to have to pay to bury me or agreement me or whatever it is it your intentions are. I mean, these are the things I have. You know, I don't I don't own my house, but I rent my house, but I own my furniture and t.v.'s. I've got some, you know, things that were important to me. I collect bottle caps or you know what I mean? I have a collection of cufflinks like me. You know, they may not be worth a lot, but they are worth a lot to me. And so specifically, I can say I want this that to go to this individual, because it's just it's a token of who I was. It carries on beyond my life. And that's what a wheel affords me the opportunity to do. Direct your family and friends as to the things that you've accumulated during your life, regardless of value.

And one thing that would tell you is important is nowadays, with more and more people getting divorced and remarried, there's a lot of blended families and and a lot of instances, these blended families.

You don't treat your stepchildren any different than you treat your regular children. And so will affords you the opportunity to provide those with those provide for those stepchildren if you if you so choose. So the laws of instant intestate succession in Texas wouldn't necessarily give you the ability to bequeath anything to a stepchild. Oh, so that's.

Yeah. And it's super complicated. I mean, you get into intestate succession, you talk about like, you know, levels of sanguinity and you know, who's gonna get by percentage and it becomes complicated, expensive. And a lot of times goes your estate. The bulk of it or parts of it will go places you don't want them to go, you know. And let's just take Richo case. I mean, this is a gentleman who had three wives, two children with each wife. And so in that situation, he's probably got a fairly substantial estate. And even if it's not substantial, he's got the rights to his songs. You know, maybe he wrote other songs that were never published that maybe now that he's passing away, there's interest in the public. You never know what becomes of value in that situation. And so if his current wife is to say, like, everything goes to my children, he may have loved his other children just as much and wanted to pass it, you know, things onto them equally. Well, if he didn't put it in the will, it can really complicate matters.

The other thing would be, obviously, you want to take care of it if you're remarried. A lot of times you want to take care of a spouse, but you also want to take care of your children. Let's say your spouse. I mean, let's say the wicked stepmother doesn't get along with the kids. I mean, sometimes that does happen. So you want to make sure that you provide for your kids and provide food for those that are left.

Absolutely. In the case of Luke Perry, let's just use him as an example. You know, this call and ask me that, you know, basically tipped him off to maybe I have some pre-cancerous growth. He goes he talks to a lawyer. He creates a will that basically guarantees that the bulk of his estate that existed would pass to his children. So he was engaged at the time with his death when he had his massive stroke and passed away. So in that situation, obviously, I mean, you don't want it. You don't want it to be tied up. You don't want to have your children to deal with that situation. But let's say you just got married, fresh, married, two months in the entire state, potentially a community property state like Texas could pass all to the spouse completely cutting the children out if you don't have a will. So there's a lot of things that you're going to want to talk to counsel about. Talk to an attorney that knows about estate planning to help you kind of guide what to do with your estate if and when. Because unfortunately, we are all going to meet, you know, the hand of death at one point in our lives. You know what? I don't think that's right. That in taxes.

So let's talk a little bit about what goes in the will, because let's say let's take me, for example.

I have you know, I have young children, but both children under the age of 18. Do I want them to take my take my estate and have the world's biggest party at 18 years old? What do I want to have happen? What can I do to prevent that from happening?

Sure, you can put in trust assets that exist in your estate. So whether it be as an example, you could do you know what we call a four overworld, which is you have an insurance policy and the proceeds from that insurance policy upon your death are going to come through the will and create a trust. And so in that situation, why would you do that? Well, let's say, you know, you have a wild child like me who decided that, you know what, all they wanted to do is visit the local adult beverage establishment and blow any dollar that they could have in their pocket in that place.

Are you talking about jetskis in the pool, since? I'm talking about jetskis and full of dog. And so, you know, the fraternity life.

So maybe I wasn't probably the most financially educated individual at the age of 19 to have a tremendous amount of assets or any amount of assets, for that matter, put in my hands to determine what it's going to be spent on and went through a trust. You can control that process. You can say, hey, we're gonna do this. Disbursements quarterly. We're going to give him the bulk of it when he turns twenty five or twenty two when he graduates from college, or there are all kinds of creative things that you could do with assets in your estate, whether it be a fixed asset, real property or financial.

And the other thing would be obviously there's appointing an executor and that executor is responsible for handling the estate and the affairs of the estate. But there's also appointing potentially a trustee that you would need to potentially appoint to manage that money or manage that asset until it's time for the beneficiary who should take over the asset.

Absolutely. Has to be dissolved. Yeah. And it doesn't have to be the same person. I mean, it depending on the size of your estate. I mean, you can say, hey, you know what? I want this individual to be compensated potentially for the work that they're gonna have to do. Because keep in mind that, you know, taking on the role of executor or executrix, female or male, is, as the case may be, you know, it's a large responsibility. So these are conversations that you're going to want to have with your children. You're going to want to at least make them aware. You know, it's gonna be important that you let everybody know where your wills exist. I mean, there's a lot of different ways to do well in the state of Texas, unfortunately, but a valid will, there's only really two one that's going to be written and sworn to and maintained. And the other one who's gonna be holographic, which is complicated. And I wouldn't recommend it. But, you know, these are things that you need to make people aware of, know that they exist. Where are you going to keep them and keep them in a safe place? Are you going to make copies? How many copies, where they're going to go? All these are things that are gonna be wrapped up in the conversation.

And I will tell you that it's better to keep your will at a safe place at your house, most likely, rather than, say, in a safe deposit box, because if you pass away, suddenly you're going to possibly need a court order to go in that safe deposit box and retrieve that well, which also obviously creates an issue there.

So one other thing that people can do. So once you get a will, execute it. To help facilitate that, people sometimes say like, well, what if there's a fire? Well, every municipality in the state of Texas has a world bank. And so you can always get your well executed and keep it on file in the county records in a while. But now that has some expense associated with it. But once it's on, follow me. If we want to change it, you can't. So there is a lot of things you can do to ensure that your family doesn't have to deal with those kinds of problems or concerns.

Let's talk a little bit about that. Let's say I have my will. Let's say I get divorced. Do I need to change my will?

Absolutely. Unless you want your ex-wife to get you. You know, most of the time divorce is going to vitiate those designations. So don't worry. I'm teasing on that. But it's still so like it creates the potential for an intestate situation in Texas. By intestate, I mean that basically you're passing away without a will. So you have a will. You think it's valid? You get divorced. You know, all the provisions in there relate to your wife. Does it necessarily invalidate the entire will? No. Could it complicated? Absolutely. Because you may have given her pieces of property that you didn't give anyone else. And if it's not incorporated in the will, potentially it falls to the general bequest, which is all the remainder of my property. But it can make things more complicated. So you're gonna it's gonna be a document you're going to want to look at and update periodically.

And let me talk a little bit about intestate succession.

Intestate succession laws in Texas are kind of can be very complicated because you first have to classify all the property that you have to determine whether it's separate or community property. Then you have to discern who gets what share and how much of those shares go to each person. And that can be if you have a small estate and especially if you have a small estate that can be a very time consuming and expensive process. And you really, really don't want to have to do that or you don't want to have to throw up your hands or have your family members throw up your hands, you know, after you pass away. And because they can't deal with a court proceeding that deals with intestate succession, because I mean, a will can be for a small estate. It doesn't have to be a RICO case money or Gloria Vanderbilt money or anything like that. It can be a smaller estate. It's. It's like like Sam said at the very beginning of this podcast, it's really for those that are left behind.

It's and it's the Tannous basically to kind of preserve your legacy and make sure it goes to the people that are left behind. Without a doubt. BROWN With.

And do we have any. Anything else you want to add to this?

No, I think we've talked enough about the hand of death. I think the next step is that it will be, too.

Yes. Let's hope we can be a little bit more cheery. Maybe you're talking about adoptions or something like that. Something fun. No, but.

And, you know, to be to be a little bit more serious, it is important for you to to sit down with with your attorney and talk about you. This is my estate plan. This is what I want.

And like Sam said, it doesn't have to be, you know, huge assets. Like it'd be a cufflink collection, can be a assort, it can be family heirlooms and stuff that gets passed down from generation to generation.

It's, you know, can be very important to, you know, a very important personal property that you may want to stick in that will. So it's not just about dividing up houses and ranches and all the big stuff. And keep in mind that, you know, lots of things like life insurance have beneficiary designations on them. So you may want to look at your life insurance and see who the beneficiaries are and see what the potential beneficiary plant is, because you may want to put that into your will because it may be more and maybe more and maybe more beneficial to you to put it into a trust or something like that. So that's those are all things that an attorney, a competent attorney in the in these areas can help you with.

Couldn't agree more, Brian. I mean, I just want everybody to understand how important it is that in your life, no matter what you accumulate, that you sit down and generate a will, talk to an attorney, have somebody put it together, whether it's personal property, small estates, massive estates. If you don't have one, you're doing a disservice to the people you love most.

And the other thing is, again, the. You can do a lot of things to help with tax planning and debt planning and different things like that through through these estate planning vehicles. And like like Sam said before, the not just the will with the powers of attorney, you can make sure that decisions you weren't made are made the way that you want them. And then nobody likes to talk about these subjects.

And it's funny that, you know, some of them, some of the wealthiest and some of the most educated people in the world don't have wills and stuff like that, because it's not a subject that that people like to talk about. But it it definitely is something that that is necessary. And it's definitely something that that is it's helpful to people. Couldn't agree more.

All right. Well, I think that we'll wrap us up for today. I really appreciate your time, Sam. And we will talk to you next time. And where we will cover a topic that hopefully is bright and cheery. On the flipside. All right. Take care.

Thank you for listening. And we hope you enjoyed the top Texas Lawyers podcast. If you'd like to consultation with either Brian or Sam, please call 1 8 8 8 9 8 1 7 5 0 9. Or visit us on the web at a_s t.x. Legal dot com. Once again, that's A-s t.x, LPGA Yelp.com. Thank you very much.

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