Need Help With Living Wills & Estate Planning?
Call The Law Office of Jackson F. Gorski @ 512-960-4646
The first thing to understand about wills, living wills, trusts, advance directives, powers of attorney, etc. is that they are all part of a broader area of the law known as estate planning. This is not only the case in Texas, but it is true in all 50 states. However, it is important to note that some of the terminology, criteria, and procedures differ from state to state.
Case in point, Texas has a unique term in its legal vernacular that some might be familiar with, which is called an affidavit of heirship, and it applies to estate administration. If you have questions about a situation with your own family or that of another, call Attorney Jack Gorski.
Affidavits of Heirship
When someone resides and dies in Texas, any intended beneficiaries must establish their claim to the deceased’s estate. In order to file a claim on the estate, family members and/or loved ones are required to apply for an affidavit of heirship, which verifies their status as rightful heirs.
To qualify, supporting documentation must be submitted, such as copies of a death certificate, vital statistics, copies of any surviving child’s birth certificate who might be claiming heirship, and pertinent details surrounding the circumstances of death might be required in order to verify the claim for heirship.
The Probate Process
Once the affidavit of heirship is obtained, the estate can be placed into the probate process if deemed necessary. It is important to note, however, that Texas is one U.S. state that does not require probate of an estate.
While it is true that many wills are subject to probate in most states, not every estate or will that goes into probate is required to do so. Moreover, it also can be difficult to determine whether probate is necessary, which is why consulting an attorney who specializes in estate planning can be a valuable resource. It is also important to note that many assets within an estate do not need to go through the probate process to be transferred to beneficiaries.
Here is a breakdown of assets that do not require the probate process:
- Money from life insurance policies
- Jointly held bank accounts or those with a beneficiary named
- Property that is intended as a joint tenancy (held by more than one person) with a right of survivorship in place
- Community property with a right of survivorship in place
- Money from annuities where a beneficiary has been named
Wills and Establishing Living Wills in Texas
On the other hand, the establishment of living wills, which are also referred to as advanced directives for health care, are important for expressing medical care wishes in the event someone becomes incapacitated and/or is unable to give consent.
- For instance, if an individual is involved in a tragic accident, do they want extraordinary measures taken to extend their life?
- Would you want a ventilator that breathes for you or a feeding tube inserted in the event you are unable to eat on your own?
Decisions of this nature, such as turning off artificial life support or putting someone on a ventilator, can be extremely difficult for family members and loved ones to make given their attachment. As such, a living will aids families, friends, and medical providers in understanding the patient’s wishes in times of crisis.
Here is a breakdown of what a living will and/or advanced care directive might include:
- A Do Not Resuscitate (DNR) order
- Instructions RE: CPR
- Whether extraordinary measures, such as mechanical ventilation, feeding tubes, etc., are acceptable and for how long
- Pain medication directives
A living will can be very detailed or it can simply cover specific aspects that are most important to the patient.
Living Wills & Texas Law
Living wills are defined in the Health and Safety Code under Section 166.031. As such, the Health and Safety Code provides guidelines for preparing living wills and the document must meet these criteria to be legally viable. The stipulations include a specific date when a living will becomes effective and the physicians’ rights regarding these specific wills.
Additional requirements include the following:
- The party requesting the living will must be at least 18 years old and competent at the time of signing
- A living will must be signed and witnessed by either a notary or two independent people
- Both witnesses must be at least 18 years old and competent
The process of drafting wills and establishing living wills has become so commonplace that there are many online and/or DIY kits available for consumers to do it on their own. However, if someone wants to make sure all their legal bases are covered and their estate will be settled with little hassle or delay, it is best to consult a lawyer who specializes in estate planning that will walk you through the process of drafting a will and/or establishing a living will.
Need an Estate Planning Lawyer in Austin?
Contact Attorney Jackson F. Gorski at 512-960-4646
When a relative falls or has a serious medical matter to be contended with, the situation doesn’t have to be stressful or scary. If you need help getting the legal matter of a loved one resolved properly, contact The Law Office of Jackson F. Gorski immediately.
Attorney Jackson F. Gorski is an experienced Austin family lawyer. The Law Office of Jackson F. Gorski offers free consultations, flexible payment options, and an eye for detail which is what you’ll need. To contact the firm, please call 512-960-4646 or click here to send us a message.