Five Estate Documents Every Parent Should Have

Another Reprint of my column that Appears in the Grizzly Detail

Before you read this article, it is important to note that when I plan an estate it is considering the worst case scenario that a parent can go through. In most cases the surviving spouse will be the one who is set to receive the estate and the Will will be the only document needed to transfer title to any property.  What if both parents are in an accident together? What if one parent is killed and the other is incapacitated?  These of course are awful thoughts, but such a thing is not unheard of.  A good friend of mine recently went to Mexico with his wife. They left their two children at home.  If they both died during their trip who would take care of his children?  He visited with me and we drafted some of the documents I talk about below.


A Will

Everyone should have a will.  When you die, this is the best way for your survivors to handle your estate.  Yes there are ways to go about passing your estate without a will including POD bank accounts and trusts, but in case there is any property that is not disposed of by these means, a Will is always a good idea. Without a will, your estate will be handled with the intestate laws codified in the probate code, but your family will have to get letters of administration or apply for a small estate order.  This can be harder and depending on how your family is made up can cause some problems.  A will can provide that the person you choose be in charge of your estate and can do so without posting a bond and can do so independently without a lot of court intervention.  A will is your best bet to save your loved ones time and money.

An attorney is probably the best person to draft a will for you.  I would stay away from Wills you find in an office store or on-line.  If it is not done right according to Texas law it can make the process when you pass away a lot more daunting for your survivors.

Declaration of Guardian in Case of Later Incapacitation


Like I mentioned before I always plan for the worst case scenario.  One example of worst case it that a couple is an an accident together leaving one dead and one incapacitated. Texas law allows you to state who you want taking care of you in case that happens.  Ordinarily you would want your spouse, but what if they are unable?  This document is your way to let the court know your wishes in case the court has to appoint a guardian over you.  While the court, does not have to necessarily go with who you suggest, it will give your wishes great deference.  You can also spell out who you do not want taking care of you.  You can even state who will be your guardian of your person (the person taking care of your physical needs) and your guardian of your estate (who will take care of your estate).  Sometimes while a person may be good at one, that person may not be good at the other.  So something to consider.

Declaration of Guardian for Your Child or Children

This is important if you have minor children.  Such form would only operate if the children were left with no surviving parents. Consider if my friend and his wife who went to Mexico both died. Without such a document the Court will pick from each spouse's parents first.  Which would you want them to pick?  This is a good way to let the Court know.  Again the court does not have to go with who you pick but again your wishes will be given great deference.  Perhaps you would rather it be a trusted family friend who is around the same age as yourself.  When I counsel couples on this choice, I often recommend that they consider not only the physical and monetary needs of their child but also spiritual aspects of their children's upbringing.  Again you can designate different people to manage the money.  You can also declare who you do not want as guardian of your children.

Durable General Power of Attorney

This allows your designated person to manage your finances and other business even if you no longer have the capacity to do so.  It is important that this document is made prior to something happening to you.  While it is different than guardianship, it allows a loved one immediate access to your money and other business before and after you become incapacitated.  This can be helpful if immediate things need to be done with your finances.

Medical Power of Attorney

While Texas law designates an order of who gets to make your health care decisions if you no longer can,  I highly suggest spelling out your wishes of who may do so.  This makes it easier on your loved ones.  Perhaps you would like a different person because he or she is more decisive and better knows your health care wishes.  Perhaps you do not want your adult children to argue over who should be the one making the decisions.  These are good reasons to designate this person ahead of time.

Other Documents

There are some other documents that allow you to skip probate and guardianship type proceedings.  Of course we have all heard of trusts.  This is a good way to plan for yourself and your children monetarily.  Trusts are good options if you have the forethought to transfer property to a trust ahead of time.   However, if you have any property that you neglect to transfer, Wills and Declaration of Guardianships are still an absolute necessity.  However, trusts will not let you declare who will be the guardian of your person or your children's person.  They don't let you declare a guardianship of your estate either, but a Trust would allow you to set up  something in lieu of your estate being used to take care of your needs.

These are some of the highlights and decisions you must make when considering formulating an estate plan.  As you can see, estate planning is for people of all ages, and the repercussions for not having an estate plan in place when you have minor children can be quite profound.  Don't put off what you have been meaning to do.  When you finally need these documents it will be too late.

What is Social Security Disability?

This is a reprint from my column "Legal Ease" which is published bi-weekly in the the Grizzly Detail Newspaper.

This week, again without a question from a reader, I will answer the above question coming directly from an area of law I practice in everyday--Social Security Disability.  So...what is Social Security Disability?

Most American's notice that out of every paycheck, an amount is taken for Social Security Taxes.  Most people understand that this amount is applied to a future retirement.  However at the same time you are also "insuring" yourself for disability.  Not only does the Social Security Act give you a retirement one day, it will also be there for you if you are disabled to a point where you can no longer worker providing a monthly benefit and in some cases Medicare.

The requirements for Social Security disability are very different than the requirements of private short or long term disability carriers however. They are also very different from the requirements of Veteran's disability and Workman's Compensation.   First, and foremost, to qualify for Social Security Disability your physical or mental impairment has to keep you from working for at least a year or result in death.  So while some traumatic injuries may be very severe and keep you from working, it will not qualify under this program if it will get better within a year. 

Secondly, it takes more than a doctor's note to qualify for this program.  The Social Security Administration will actually need to see diagnostic proof of your illness to make its determination.  While an opinion of your treating doctor is a big factor in making that determination, it is not the only factor.  Your medical records are actually sent to an independent doctor in order for a decision to be made.  You don't have to agree with this decision however, and there are many avenues of appeal.

Next, you have to be precluded from doing any kind of work.  Now, depending on your age, education, and past work, "any kind of work" may be different from one person to the next. It is important to realize however that just because you cannot do what you use to do, it does not mean you will qualify for benefits under this program.  For instance an attorney, who suffers a traumatic brain injury making his or her cognitive functioning impaired will not be disabled if he still has the ability to be a cashier or a landscaper.  However, age can make a big difference as well.  If a person who is over 55 suffers a back injury and can only be on his feet for a couple hours a day, and the only thing he use to do was frame houses, he will be found disabled by the Administration.  Every case is different. That's why a lot of Social Security Claimant's consult with an attorney.

Regardless of how you feel about entitlement programs, if you have worked, money was taken from your check.  The government did this with a promise that you would get a benefit when you retire, or you would get a benefit if you could no longer work.  If you can honestly no longer work, this program should be there for you.  Do not hesitate to apply for that benefit and seek help fighting to get what you deserve.