Tales From The Trenches
Did you intend to disinherit your husband?
by Barbara Clark on 10/06/12
If you give a child up for adoption that child might inherit your property instead of your spouse. That happened in a recent case in our office.
In this case a woman who had given up a child for adoption 50 years ago died without a will. This woman (Mrs. X) left a husband to whom she had been married for over 45 years. Because the couple had no children and all of their property was accumulated during this marriage, half of everything this couple built together went to the child given up for adoption.
How could this happen? The law in Texas says that if a person dies without a will and the deceased person has children who are not of the present marriage, then all of the community property of that person goes to his or her children. Texas law also says that a natural child inherits from his or her natural parent unless court documents specifically terminate the inheritance rights of that child.
In this case the stars aligned in favor of the child and the facts established her as the legal heir of her birth mother. Although this is a simplistic view of the case and the husband did have certain rights as a widower, the result of Mrs. X dying without a will was the she disinherited her husband of 45 years.
Remember, if you do not make a will, the State of Texas will make one for you. Over half of Texans die without a will. Will you be one of them?
Do You Do Living Wills?
by Barbara Clark on 08/13/12
This was a question that a woman asked when I answered the phone at our office last week. My answer was, Certainly. Next, she wanted to know how much I charge for a Living Will. At this point I was on shaky ground. Why? Because: 1) I do not actually draft a document called a Living Will; and 2) my experience is that there is quite a bit of confusion as to exactly what a Living Will is. The term Living Will is used primarily to describe a document that concerns artificial life support, but I have at times had clients call my office asking to have their Living Wills changed to create an additional legacy at their death. On other occasions, they have asked to have one created to give a child access to their financial accounts, or they believe they need one to allow someone to make medical decisions for them when undergoing surgery.
A short conversation with a client is all it takes for us to get on the same page, which is why I answered Certainly when the potential client called last week. I just was not sure yet whether she needed a Last Will and Testament-version of the Living Will or a Directive to Physicians-version of the Living Will or well, you get the idea. Oh, and if she had asked if I do Pull the Plug Orders, my answer would have been Certainly to that too.
Just in case you want to know, here are the technical terms in Texas for documents clients sometimes call Living Wills (and other things):
1. Last Will and Testament leaves your property to someone when you die;
2. Directive to Physicians states your desires about remaining on life support;
3. Power of Attorney designates someone as your financial agent during your lifetime; and
4. Health Care Power of Attorney allows someone you designate to make health care decisions for you if you can not make them for yourself.
