Probate involves the filing of a deceased person’s Last Will & Testament with a court. In some instances, though, heirs cannot locate the original Will. What can be done if the original Will is lost? Is there a way to probate a lost Will?
When heirs cannot find the original Will, the legal presumption is that the decedent revoked it. That presumption, however, is a rebuttable one.
Texas does allow heirs to probate a lost Will. To do so, they must:
- Prove that there was a valid Will.
- Provide evidence as to why they cannot produce the original Will. This evidence must be adequate to rebut the presumption that the deceased person revoked the Will.
- Provide proof of the contents of the original Will. Credible witnesses who read the Will or heard the reading of the Will can testify as to the contents of the Will. Witnesses who saw the original Will can testify that a copy of the Will accurately represents the content of the Will they saw.
If you have a loved one die and you know that person had a Will, but you cannot locate it, don’t despair. A qualified and experienced probate attorney can advise you on the best course of action for settling the estate.
My eldest son graduates from high school this week. It’s an exciting time. He’s looking forward to going off to college. I’m excited for him.
When he turned 18 years old, I had the “talk” with him. No, not that one. That talk was some years ago. This talk was about what it means legally to turn 18 years old. The law says he is an adult. Being an adult brings with it a whole new set of rights, duties, and privileges. One area that is significant for a young man going to college is that he is now entitled to the same privacy protections as any other adult.
Many parents have a difficult time processing the whole “privacy thing”; with their college student children. Parents are paying tuition, books, expenses, and health insurance. So, most parents reason that they should still have complete access to their child’s financial and medical information. But, that’s not the way the law sees it.
In fact, health care providers and financial institutions are prohibited from disclosing your child’s private information to you unless your child has signed an authorization to do so. This arrangement is usually not a big problem. After all, you want your child to be self-sufficient, independent, and responsible.
But, what will happen if your child has an emergency? If he gets injured, will you be able to get information about his condition? Or, if he gets sick while at school, will you be able to view his medical information and talk to the doctors about the diagnosis and treatment plan? If your child becomes incapacitated while at school, are you be able to step in and help handle his finances?
The short answer to each of these questions is “no.” Unless you prepare in advance, you won’t be able to access your child’s medical or financial information even when there is an emergency. Fortunately, however, there is an easy solution. There are three simple documents your child can sign before leaving for school that can change this situation. You absolutely should not send your child to college without first signing these three documents.
Durable Power of Attorney
The Durable Power of Attorney covers your child’s financial affairs. With this simple document, you can manage your child’s finances if he becomes physically or mentally unable to manage them himself. This means you can handle everything he would handle relating to financial decisions. You can pay his bills, apply for social security benefits on his behalf, and open or close bank accounts.
Medical Power of Attorney
The Medical Power of Attorney covers your child’s medical condition. This document allows you to make medical decisions on behalf of your child if he is incapacitated and unable to make his own decisions. You will also be able to see your child’s medical records so you can make an informed decision on his behalf.
HIPAA is the acronym for the Health Insurance Portability and Accountability Act of 1996. This Act requires all health care providers and insurance companies to protect the privacy of an individual’s healthcare information. A violation of this law can result in jail time and hefty civil penalties. Needless to say, healthcare professionals take this law seriously (as they should) so you won’t be able to see your child’s medical records without this release.
The Medical Power of Attorney does include a HIPAA authorization. But, the Medical Power of Attorney does not allow you to view medical records or consult with your child’s doctors unless he is incapacitated. If your child’s doctor does not believe he is incapacitated, you will not have access to medical records under the Medical Power of Attorney.
By having your child sign a HIPAA Release before leaving for college, you ensure that you have authorization to deal with doctors and discuss your child medical diagnosis, as well as treatment options.
These three documents are relatively inexpensive. They are also easy to prepare. If your child is preparing to go off to college, you should discuss with him the need for these three documents. Obviously, you hope you never need them. But, it’s much better to have them and never need them than to need them and not have them.
What Is Estate Planning?
Estate planning, at its core, is a way for you to protect and take care of your family’s needs after your death. It is also a way for you to protect your assets and your family if you are unexpectedly incapacitated. There are many different estate planning tools you can use to plan for your family’s protection. But, don’t try to create what you think you need from an online legal form.
Proper estate planning is more complex that what you can do with a simple do-it-yourself form. You need an attorney who is knowledgeable and experienced in estate planning to help you create a good plan.. The actual documents you need in your estate plan depend on your individual situation.
You need to talk to an attorney about your options. A “one size fits all” form simply won’t protect you. And, a comprehensive estate plan actually prepares you for death and if you are unexpectedly incapacitated.
Planning for your family’s future is critical. By planning ahead, you get to determine how your property is handled and to whom it is distributed. And, if you do become incapacitated, either permanently or temporarily, an estate plan can protect you and your family when you can’t make decisions for yourself.
Planning for Your Death
When preparing for death, proper estate planning actually has two parts. One part provides that your debts are paid after your death. The other part designates the beneficiaries of your assets the debts are paid.
A Last Will & Testament is the most common estate planning tool that covers both of these situations. A Will is essentially your written instructions about how you want your property handled after your death. In it, you also specify who you want to manage your property.
Planning for Incapacity
There are certain situations in life that can result in your becoming incapacitated. Sometimes an injury can create that situation, other times it may be a medical condition. In either situation, however, you need someone to take care of you and make decisions for you when you can’t do so.
This is why planning for incapacity is crucial. And, when planning for being unexpectedly incapacitated, there are actually two parts to that plan as well. The first part of an incapacity plan deals with your person healthcare. In that part of the plan, you name the person you want to make healthcare decisions for you when you can’t do so yourself. The other part of the plan deals with your financial affairs and is where you designate the person you want to make decisions that affect you financially if you are incapacitated.
The need to plan ahead in these areas cannot be over emphasized. If you do become incapacitated and you don’t have a plan in place, it may be necessary for your family to seek court intervention to appoint a guardian for you. That process can be extremely expensive so it is a good idea to plan ahead.
To get your plan in place, call me at (254) 203-0843. I’d be happy to visit with you, discuss your needs, and craft an estate plan specifically tailored to meet your needs and protect your family. As an alternative, you can complete an online questionnaire and I’ll get started on your estate plan after a brief discussion with you.
We don’t like to talk about death and dying. I understand that. Really, I get it. But, it’s important to plan for what happens to your assets after you die. Your family needs the security that only your planning can give them.
The National Association of Estate Planners estimates that more than 120 million Americans do not have an up to date estate plan. There’s no legitimate reason for not having a plan in place. Here are four tips for you to consider as you think about your own estate planning.
1. It’s all about planning ahead.
You have to plan before you get seriously ill or become disabled. So, before either of those things happen, you need:
a. A durable power of attorney to appoint someone to make financial decisions for you
b. A medical power of attorney to appoint someone to make medical decisions for you
c. A living will to state your preferences with regards to end of life options
2. Draft a will
If you don’t plan where your assets go at your death, the state has a plan for you. But, you won’t like that plan. So, get a will and specify how you want to distribute your assets at your death.
3. Update beneficiary designations.
You should regularly review your beneficiary designations and updated them as needed. A good rule of thumb is to review your beneficiaries when you experience a major life change, like getting married, having children, children graduating from college, children getting married, having grandchildren, etc.
4. Don’t forget about your digital estate.
You have accumulated digital assets over the years. Most people don’t think about those things. So, plan ahead and keep an inventory of your digital estate. Make sure your family knows about your accounts and has access to the passwords when the time comes to use them. And, leave instructions for how you want your heirs to handle your social media accounts.
Not having a will can cause your family an incredible amount additional grief from unnecessary complexities and costs in settling your estate, not to mention the possibility of results that are entirely contrary to what you would want.
I just came across an article written by Don McNay that illustrates this point quite well. McNay is a financial advisor. He is a big advocate of having a will to control how your assets are distributed after your death. He advises everyone to get a will.
But, his family didn’t heed his advice. His mother and sister both died without wills. The results for McNay and his family were nothing short than a disaster.
His mother died in April 2006. He and his sister were her sole heirs. At the time of his mother’ s death, his sister was without a job so he paid his mother’s funeral expenses, her mortgage and other outstanding bills. He and his sister agreed that he would be reimbursed from the settlement of their mother’s estate. They did not, however, put their agreement in writing.
His sister then unexpectedly died in October 2006. She had an adult son and a minor daughter. As if that wasn’t complicated enough, the sister had an estranged husband.
You guessed it… he showed up after her death.
Right after the funeral he hired a lawyer to file probate proceedings, requesting that he be named administrator of the sister’s estate. Since only six months had passed since his mother died, the mother’s state was still not settled. So, the sister’s husband was also named as a co-administrator of that estate.
Oh, it gets better. Remember, the sister died leaving a minor child. The court appointed an attorney to represent that minor child’s interest and approve any decisions in his mother’s estate.
McNay describes the whole process as “a tedious and expensive mess.”
I’d say that’s probably an understatement.
He also states,
“The person who got the most money from my mother’s estate was my former brother-in-law. My sister’s estate received half of Mom’s money, and he received half of my sister’s estate. My nephew and niece split the other half of her estate.”
He explains that the result is not what his mother or sister would have wanted. Further, it was something that was entirely avoidable. He rightly states that,
“Involving a lawyer would have solved most of the problems. If my sister and, especially, my mother had had simple wills, the process would have been smoother and the money would have gone to the right people.”
McNay concludes the explanation of his ordeal with this statement,
“People may think that wills and attorneys are expensive. In the overall scheme of things, they really aren’t. I gladly would have paid ten times the average cost for my mother and sister to have had wills. And everyone (but my brother-in-law and the attorneys) would have come out way ahead. ”
If you’d like to read his entire story, you’ll find it here: I Learned the Hard Way Why People Need Wills
Don’t let this happen to your family. As Mr. McNay says, this is completely avoidable.
Call me. Let’s talk about your will. Your family will thank you.