Last week, I shared with you about how the sudden, tragic death of one of my friends knocked some sense into me. For years, I have understood the importance of a will, but I just kept putting it off—I think partly because I felt certain I had time and partly because facing death head-on can be disturbing. My friend’s passing, and the legal mess that ensued because he did not have a will, provided me with a definite reality check.
As I told you last week, I now have a will, but I am far from finished with getting things in order in preparation for the inevitable. To discuss the other documents I need to have in place, I contacted Sharon Almaguer of The Almaguer Law Firm in McAllen. I told Sharon I read in one of Suze Orman’s kits that we should list, in handwriting, all non-probate property (things I own that are not real estate) we want to leave to specific individuals. Sharon said yes, that things like life insurance policies, insurance, bank accounts, furniture, jewelry, vehicles, and other assets should be clearly listed and attached to my legal will. Most policies/accounts already have beneficiaries, but they should be listed so the executor knows what accounts you have. Include the policy/account number, the firm, and the contact information for each to make this process easier. If I want my furniture, jewelry, car, and other belongings to go to specific individuals, I can write that in this document. Sharon referred to these as “specific requests” and said they are not, technically, part of the will or legally binding; however, I feel confident my executor will work tirelessly to make sure my wishes are granted.
Sharon also told me about a law that went into effect in Texas September 1, 2015, that allows residents to create a Transfer-on-Death Deed rather than a will. This deed allows a person to avoid probate, and its associated court and administrative costs, and to transfer “real” property directly to the beneficiary. This deed must be signed and recorded while the owner is alive and of sound mind. Now I am wondering if I should have done this rather than creating a will so my beneficiaries don’t have to go through the probate process. I am going to look into it and decide whether to keep my will that was recently drawn up or destroy it and replace it with a Transfer-on-Death Deed. I will share with you what I discover and what I decide to do.
IMPORTANT!!! Sharon explained that with a traditional will, if Medicaid has been used to pay for nursing home care, a lien is placed on the person’s property, and Medicaid is reimbursed during the probate process. However, if a person has a Transfer-on-Death Deed, this does not happen. I must say, I am questioning now why anyone in Texas would have a traditional will, though it is a thousand times better than having nothing in the event that you should pass unexpectedly.
I also asked Sharon about powers of attorney (POA). Sharon stressed to me that “everyone needs them, they work well, and family members cannot fight over control if they are already in place.” If a person does not have a financial POA in place and family members disagree about how things should be handled, those family members end up in Guardianship Court and likely pay thousands of dollars to resolve the issue.
First, we need a medical POA. This only goes into effect when we become incapacitated. With a medical POA, should anything unexpected happen, there will be no question as to who I would want to make decisions about my medical care on my behalf.
We also need a financial POA. One attorney advised me not to do this “until you need one” because the person I establish as my financial POA could then rob me blind. This actually made me laugh for two reasons: 1) By the time I need one, it will be too late, and 2) I am 100 percent confident that the person I choose will not “rob me blind.” Sharon completely agrees and told me the financial POA does not go into effect until I am incapacitated and unable to make financial decisions on my own. I have promised myself I will have my medial and financial POA in place by the end of this month.
In Part III, we’ll discuss a Living Will, which will allow me to outline exactly what medical measures I do and do not want should I become critically injured or ill. I will also discuss planning ahead for my funeral services and for my final resting place. I will share with you advice from Sandra Martinez (Sandra L. Martinez Attorney and Counselor at Law, PC in McAllen).
This is so difficult to face, and yet, it has sparked a great deal of discussion (and action, thankfully) among my friends since last week’s column.
I hope it has done the same for you.
Chris Ardis retired in May of 2013 following a 29-year teaching career. She now helps companies with business communications and social media. Chris can be reached at email@example.com.