If you moved to Texas from a foreign state – defined as “anywhere but Texas” – then you need to update your estate planning documents. Immediately.
What documents are those? Let’s start with the Magnificent 7.
Will
Your will is first up. Every adult needs a will. Texas has some very nice laws that make probating your will a breeze. The trick is to make sure your will is executed with the necessary language and formalities. It should include appointment of an independent executor, a self-proving affidavit, and be executed before a notary and two witnesses.
Durable Financial Power of Attorney
Next is the durable financial power of attorney. This is where you appoint an agent to handle your financial matters. Texas, again, has a comprehensive law that enables you to give your agent explicit authority. However, you must include the correct language to take advantage of the statutory protections and definitions.
Medical Documents
We follow with 3 medical documents – medical power of attorney, directive to physicians, and HIPAA release. Texas has a statutory form for the first two documents, and the 3rd document should be drafted based on both Federal and Texas HIPAA laws. The goal is to have Texas medical facilities and doctors feel comfortable with your documents so that they will follow them. They will recognize a Texas-based form, where they may send another state’s form up to their legal department for an interpretation.
Designation of Guardian
The sixth document is the designation of guardian. It comes into play if a court finds that you need a guardian. Other states may offer this type of document but, modestly, the Texas version is much better. Not only do you get to tell the Judge who you want to serve as guardian, you can also completely bar a particular person from being appointed as your guardian.
Designation of Agent for Burial
We close out the Magnificent 7 with a designation of agent for burial. This document is used to spell out your wishes for final disposition of your body and to appoint an agent with authority to carry out those wishes. Texas funeral homes love this document because it gives them all sorts of protection from liability.
The Magnificent 7 documents should completely replace your existing will and ancillary documents. As a bonus, having Texas estate planning documents helps prove that you have changed your permanent domicile to Texas.
Trust
Now for the other important document: your trust. Chances are good that if you came from a state with a horrible probate system (like California), then you have a trust because, well, you wanted to avoid a horrible probate. Completely understandable, but a trust, with its ensuing complexities, may no longer be necessary now that you are in Texas.
If you decide to keep your trust, then you need to immediately address two points: choice of law and situs. The situs is where the trustee administers the trust. The choice of law provides which state’s law applies to your trust. Both situs and choice of law may be spelled out in your trust. You should carefully consider whether to change situs and choice of law to Texas. That change could keep your trust from being taxed under the laws of your former state and could keep your trustee from being sued in that former state. There are a lot of factors that go into this decision, so do not make it without talking to a lawyer.
Hammerle Finley Can Help With Your Estate Planning Needs
How soon should you get your estate plan Texas-sized? The day after the moving van pulls away from your new Texas home. Schedule a consultation with an estate planning attorney at Hammerle Finley to discuss what is right for you.
Virginia Hammerle is an attorney with Hammerle Finley Law Firm. She is entering her 40th year in the practice of law. She is Board Certified in Civil Trial Law by the Texas Board of Legal specialization. Contact legaltalktexas@hammerle.com to receive her firm’s newsletter.
