Documents You Absolutely Positively Must Have in Place

Do not take a vacation, leave for college, go through surgery or get on a small plane without having these documents in place and current. 

A will.  This document can be simple or complex, but it should not be based on a form that you download from the internet.  Because a will is so important, you should be extremely careful on how it is drafted and executed. Helpful hint: you will need at least two witnesses.

A will names your executor and states how you want your assets divided and your debts paid after your death. It is just a piece of paper until a judge admits it to probate after your death.  An executor has no power until a judge officially appoints him or her, again during the probate process. Texas law requires specific language that must be included to get the benefit of some cool shortcuts and procedures.

A durable power of attorney.   This document is effective only during your lifetime.  It designates an agent to handle your finances and business affairs.  It does not take away your rights to handle your own finances. Your designated agent owes you the highest fiduciary duty and has only the rights that you specifically name in the document.

A medical power of attorney.  This names an agent who will make your medical decisions if you are unable to do so.  It is only effective during your lifetime.

A HIPAA release.  This designates who is permitted to obtain your medical records, whether or not you are incapacitated. Note there is a federal HIPAA law and a state HIPAA law.  A good release will meet the requirements of both laws. You can provide that it is effective during your lifetime and for a period after your death.

A designation of guardian in the event of later incapacity or need of guardian.  This little document allows you to tell the court who you want to name as your guardian of the estate or guardian of the person in the event you actually need a guardian.  It is only effective during your lifetime. The document does not, in itself, create a guardianship or give the people you name any rights. A guardianship can only be created by a court.

An appointment for disposition of remains.  This document becomes effective on your death.  It gives your burial, body donation or cremation instructions and names an agent to carry them out.  You can be as detailed as you wish on ceremonies, interment and after-parties.

A list of assets, log-ins and passwords.   Do not leave home without having this in place.  Do you have any idea how frustrating and expensive it is for your financial agent, guardian or executor to have to track down financial accounts, insurance policies, military discharge papers and the like?

A trust.  This document was saved for last because, frankly, you may not need one.  It all depends on your finances, your asset mix, and your family situation.

People – get these done now!

 

Virginia Hammerle is a licensed Texas attorney.  Her practice includes estate planning, litigation, guardianship and probate law.  See hammerle.com for her blog and newsletter sign-up. This column does not constitute legal advice.