“Texas-sizing” Your Estate Planning documents
You have finished unpacking. The kids are in school. You have located the grocery store, the vet and the post office. What is next? On the list needs to go the “Texas-sizing” of your estate planning documents including your Wills or Trusts, Guardian Appointments, Durable Powers of Attorney and Directive to Physicians (Living Will). Although your Will from California will be a valid Will under Texas law, there are peculiarities to Texas law that save a lot of time and money should you pass away with a “foreign” Will. For example, in our law firm we have had to take depositions of Witnesses to Wills in places as far away as North Dakota, Alaska, Washington state and Maine. We have had to publish notices in papers all over the country to attempt to locate witnesses, attorneys who drafted Wills and people named in Wills without proper identification. If your Will contains a provision naming your best friend in Chicago as the Executor you may want to consider the burden of your best friend coming to Texas to probate your Will and consider instead naming your sister who lives in Texas. And by the way, Texas has what is called an “Independent Executor” who can dispose of your estate in an “independent administration” with minimal court supervision or control and usually very cost effectively, provided you make the executor “independent” in your Will. Unfortunately, many states do not have “Independent Executors” and so a foreign Will may not contain the requisite language and your estate may be burdened by the higher court fees, appearances and pleadings associated with a “dependent” administration.
Trusts are alittle easier. Trusts are almost universal documents. However, many clients will forget to “fund” the trust once they move. So although your home in Pennsylvania was in the trust you took tile to your house in your individual name in Texas and forgot to move it to the trust later. The home will not be in the trust and your family will have to probate your foreign Will to get the house moved after your death, costing your family unnecessary time and expense. If it is not the home it may be the new checking account you opened when you moved here and it was easier to open it in your name than to worry about finding a copy of the trust which is a box somewhere! Worse, most attorneys will put in the trust a statement that the trust is to be governed by the laws of the state in which the trust is drafted. What if you had your trust prepared in New York and have moved to Texas? At your death your trust will be governed by the laws of New York. Not many of the attorneys in Texas are also licensed in New York. On several occasions I have had to hire lawyers in foreign jurisdictions to assist in the trust administration because a practitioner failed to update this provision of the Trust. We always “amend” the trust to provide that the trust will be governed by the laws of the state in which the Trustee resides. That way if the Trustee is your daughter in Ohio she can actually take your trust and administer it after your death with the assistance of a local attorney.
In addition, all of the ancillary documents such as the Guardian documents and the Powers of Attorney –are all state specific. I always tell my clients that your Declaration of Guardian for your minor children is the single most important document in your planning. There is nothing more frightening than the possibility that your children will go to foster care while the court decides which set of grandparents is “in the best interest of the child.” Each state has their own nomenclature and format and it is difficult (although not impossible) to get hospitals, banks and courts to recognize your “foreign” documents. Welcome to Texas, but once you unpack your estate planning documents call for a complimentary review with one of our experienced estate planners. It will save your family additional grief, cost and expense if you should pass away.
For assistance preparing or updating your planning call your attorney at Thrash, Carroll & Sanchez Law Group at 512-263-5400 or email for an appointment for a complimentary initial consultation to discuss these powers of attorney at [email protected].