Friday, May 22, 2015

Changes to the Texas Medical Power of Attorney Form



Texas has adopted a new pre-approved form for its Medical Power of Attorney, a/k/a the power of attorney for your financial affairs. All forms signed after January 1, 2014, must substantially comply with the new statute in order to be effective.

Luckily, the new form – still located at Section 166.164 of the Texas Health and Safety Code – is substantially similar to the previous versions of this form. And any Medical Power of Attorney form executed before December 31, 2013, will not require a revision in order to remain effective, so long as it complied with the law in effect at the time it was signed.

The primary change in the new Texas Medical Power of Attorney Form relates to its execution. Now, you can sign the form in front of a notary without the need for any witnesses. Alternatively, you can sign the form in front of two witnesses if a notary is unavailable. Section 166.163 of the Texas Health and Safety Code describes the types of persons who may act as witness to a Medical Power of Attorney.

By: Cynthia W. Veidt, cindy@lpvlaw.com

Friday, May 1, 2015

Changes to the “Self Proving” Affidavit for a Texas Will



Texas has now fully adopted the Texas Estates Code, effective January 1, 2014. This “new” set of statutes is a recodification of the former Texas Probate Code, Texas Trust Act, and a number of related statutes contained in the Texas Health & Safety Code and other statutes.

One of the most important changes involves the “execution ceremony” for a person’s last will and testament.  Previously, at least one witness was required to appear in court, usually in person, to “prove up” the authenticity of your will after your death, unless you (as testator) and the witnesses to your will also signed a separate attachment called a “self proving affidavit” before a notary public.

This process led to some confusion, because the testator and the witnesses had to sign the will in multiple places, and an “overlooked signature” would cause procedural problems for your executor.

Now, Section 251.1045 of the Texas Estates Code contains a combination “attestation and self-proving” clause, so that the testator and witnesses need only sign a Texas will in one location.  In order to be effective, the language in the will must be in “substantial compliance” with the specific language set out in this statute. We recommend copying this clause exactly in order to avoid any potential complications. 

Also, this single signature option is only effective for wills executed on or after January 1, 2014; please check your current will to make sure that it fully complies with the previous statutes concerning “self proving” language and signatures.

Because the language of your will – particularly the failure to include certain language – can affect the type of probate proceedings required to administer your estate in Texas, we strongly recommend that you contact an attorney well-versed in Texas estate planning and probate law to assist you in preparing your last will and other estate planning documents. Self-prepared wills or wills created with multi-state software programs often fail to take full advantage of Texas statutes that can help reduce the amount of cost and time required to finalize your financial affairs once you have passed away. 

By: Cynthia W. Veidt, cindy@lpvlaw.com

Friday, April 10, 2015

Do You Need a Will to Transfer Your Bank Account?



Probably not, but it certainly wouldn’t hurt to have one anyway.

Also, the funds in your account may not transfer to the people you think should receive that money. You should check your account agreement and ask your bank to answer any questions about where your funds will go once you have passed away.

When you die, your will can only distribute the assets that you, yourself, own. Your account agreement contains provisions that govern the extent to which any funds held in a particular bank account actually belong to you – as opposed to any other people who are also “account holders” or “authorized users,” or whatever language your financial institution may employ these days.

There are an elaborate number of different types of bank accounts - joint accounts, multi-party accounts, pay on death accounts, accounts held for the benefit of one person by another person (sometimes called a “trust account”), convenience accounts, accounts with rights of survivorship – the list can be confusing and I have found that most people don’t really know what type of bank accounts they actually have. In fact, most have never read their account agreement and didn’t keep a copy for their records.

Most likely, your account agreement also contains a “beneficiary” designation. You probably filled this out (or left it blank) on the day that you opened your bank account without even thinking about it. That named “beneficiary” is contractually entitled to receive the remaining funds in your account, directly from your financial institution, even if your will says something different. 

Basically, your last will and testament only transfers property that has not been dealt with through a separate agreement signed during your lifetime. Property such as life insurance proceeds, bank accounts, investment accounts, and similar funds almost always have a “beneficiary designation” that dictates who will receive those funds after your death, whether or not your will has been admitted to probate.

Always, always, always read the fine print when dealing with a financial institution, keep a copy of your account agreements, and double-check your beneficiary designations.

By: Cynthia W. Veidt, cindy@lpvlaw.com

Friday, March 20, 2015

Do You Know Who Gets Your Property If You Die Without a Will?



Well, you may think that you do. And most of you are probably wrong. At least under Texas law.

Recently, I overheard a well-educated financial expert tell his clients that they didn’t need to have a will, because Texas is a community property state and the surviving spouse will inherit everything, anyway.

After figuratively beating my head against a wall for the next five minute, I decided to revisit this misunderstood topic on our Blog instead.

Everyone needs a will – here are a few reasons why:

First, don’t assume you’ll have a surviving spouse. Married couples could both die during an accident, or within 30 days of each other, or after a divorce - any number of unfortunate circumstances may result in the law failing to recognize a “surviving spouse.”

Second, your surviving spouse does not automatically inherit everything you own. Other family members, particularly children (whether they are also children of your surviving spouse or not), will also inherit certain types of property under Texas law. Add in children from a prior relationship, and your surviving spouse may receive an unpleasant surprise.

Third, not everything you own is legally characterized as “community property” just because you happen to be married. And separate property is treated differently under Texas laws than community property.

Fourth, Texas’ statutes governing the distribution of your property if you die without a will (called being “intestate”) are very confusing. The Travis County Probate Court has a color-coded pie chart that helps demonstrate this complexity quite nicely: http://www.co.travis.tx.us/probate/pdfs/DnD_diagrams.pdf.  

Fifth, your bank accounts and other investments may not pass by beneficiary designation or a right-of-survivorship clause, which means a probate court will need to enter a judgment determining the identity and inheritance rights of your legal heirs. That process will hold up access to your funds at a time when they are most necessary for your surviving family members. 

Why risk an unwanted result, when you can simply prepare a will that clearly tells everyone how to handle your property after you pass away? 


By: Cynthia W. Veidt, cindy@lpvlaw.com

Wednesday, July 30, 2014

Adding a Self-Proving Affidavit to Your Will



In Texas, a self-proving affidavit is not required to make your Will valid, but it does make your Will easier to probate.  When properly executed, the self-proving affidavit dispenses with the need for any live witnesses to testify in court at the hearing on an application to probate your Will.
 
Effective January 1, 2014, Texas will no longer require a separate “self-proving affidavit” on a person’s Will.  Until then – because of some confusion concerning the effective date of the various changes made to Section 59 of the Texas Probate Code by the Texas Legislature – we believe that it is best to include a separate self-proving affidavit after the signature block where you and the two witnesses have attested to your Will.  

As of the date of this blog entry, Texas Probate Code Section 59 contains the following statutory language for a self-proving affidavit to a person’s Will:

THE STATE OF TEXAS
COUNTY OF ________________
Before me, the undersigned authority, on this day personally appeared _______________, _______________, and _______________, known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and, all of said persons being by me duly sworn, the said _______________, testator, declared to me and to the said witnesses in my presence that said instrument is his last will and testament, and that he had willingly made and executed it as his free act and deed; and the said witnesses, each on his oath stated to me, in the presence and hearing of the said testator, that the said testator had declared to them that said instrument is his last will and testament, and that he executed same as such and wanted each of them to sign it as a witness; and upon their oaths each witness stated further that they did sign the same as witnesses in the presence of the said testator and at his request; that he was at that time eighteen years of age or over (or being under such age, was or had been lawfully married, or was then a member of the armed forces of the United States or of an auxiliary thereof or of the Maritime Service) and was of sound mind; and that each of said witnesses was then at least fourteen years of age.
___________________________
Testator
___________________________
Witness
___________________________
Witness

Subscribed and sworn to before me by the said ____________, testator, and by the said ________________ and _______________, witnesses, on this ______ day of ________________, 20____ A.D.
(SEAL)
(Signed)           ___________________________
(Official Capacity of Officer)

It is strongly recommended that you consult with an attorney prior to signing any legal document, including your Last Will and Testament; this will help ensure that the document meets current statutory requirements and that you understand the significance and consequences of each provision and term contained in the document.
By:      Cynthia W. Veidt