An estate plan is more than an outline of how you want your assets divided after death. A complete estate plan should include provisions specific to your wishes after death, what medical treatments you want if you fall permanently ill, and who you want to be in charge of making critical medical decisions for you if you are unable to decide for yourself.
One piece of an estate plan that may individuals overlook is a do-not-resuscitate order or DNR. Should you consider adding a DNR to your estate plan or advance directive? At Staubus and Randall, we want you to be well-informed about all your options. Here’s what you should know about a DNR.
What Is a DNR?
A do-not-resuscitate order is a legally binding document signed by a physician that alerts other health care providers they are not to perform resuscitative measures. An active DNR will generally prevent lifesaving measures when a person stops breathing, their heart stops beating, or they suffer a medical emergency.
In Texas, a DNR order prohibits medical personnel from performing CPR, advanced airway management, and artificial ventilation. For a DNR order to be valid, the form must be written and dated by a patient declared competent.
Should You Consider a DNR?
Everyone has the right to make their own decisions related to medical care. In that sense, anyone can decide to obtain a DNR, even healthy individuals. Most healthy individuals don’t contemplate their own mortality often. Therefore, most healthy individuals do not take the time to consider what lifesaving measures they are comfortable with medical professionals taking. However, accidents can happen. If you are in the process of creating an estate plan, you should also consider whether a DNR order may be appropriate for you.
Often, those living with a terminal condition, health care concerns, and those who are elderly are the people who will generally pursue obtaining a DNR. These individuals may have faced challenging medical decisions in the past and want to be fully in control of the outcome of their situation. Additionally, they may not wish to prolong or extend their life through CPR or resuscitative measures when they are already in such fragile condition.
While CPR can be a lifesaving technique, there are misconceptions about its effectiveness in the elderly and those who are medically vulnerable. One study indicates that among the elderly, only three to five percent of patients survive CPR and are discharged from the hospital. CPR can cause broken bones and other medical complications and may not even be appropriate for some patients, meaning there is no medical benefit for certain people. When a person has gone too long without oxygenated blood, CPR may be effective in resuscitating them. However, the person could be left with brain damage and damage to vital organs, negatively impacting their quality of life.
Obtaining a DNR
If you are interested in obtaining a DNR, schedule a time to talk to your physician. You will want to bring up your concerns and discuss the potential benefits and risks involved in resuscitative efforts. Once you have more information and feel comfortable with your decision, ask your doctor to fill out a DNR form. Your doctor can fill out the DNR order, but standard DNR forms are also available through the Texas Department of Health and Human Services website. Once the forms are completed, your physician will place the DNR in your medical record.
It is also crucial to talk to your family about your wishes. Let them know you have filed a DNR and do not want resuscitative measures taken.
Keep These DNR Facts in Mind
If you have a DNR on file or are thinking about filing one in the future, keep these things in mind:
If you have a DNR on file, family members cannot override the document
If you are incapacitated, a health care agent or legal guardian can agree to file a DNR order on your behalf
If you change your mind, talk to your physician immediately. Your physician must be involved in rescinding a standing DNR order
A DNR does not change other aspects of medical care
Contact a Dallas Estate Planning Attorney Today
Looking for more information about DNRs, advance directives, or living wills? Call the Dallas office of Staubus and Randall today at 214-691-3411. We can help you manage all aspects of your estate plan and protect the things that are important to you.
Losing a loved one is one of the hardest experiences for a family. In addition to grieving their loss, family members and heirs often find that dealing with the business affairs of the deceased person is more complicated than they expected. One concern that comes up frequently is the length of time it will take to go through the process of probating the will. An effective probate process requires a specific series of events to take place. The timeframe also depends on how efficiently each of these steps happens.
The probate process for wills is handled in a court of law. In Dallas County, the Dallas County Probate Court has the jurisdiction to probate the wills of those who have passed away. This court also has the power to declare the heirs if the deceased did not have a will.
The probate process officially begins when someone files an Application for Probate of Will and for Issuance of Letters Testamentary with the probate court clerk. The person who files these papers is often the person who is named as Executor or Executrix of the will. An attorney can also file on their behalf. The application should include the original will.
After the application has been filed, the court clerk will then notify the relevant parties of the probate of the will’s estate. There is a requisite time of 10 days so that the court has enough time to notify the public that the will was filed to probate. After, the court will schedule a hearing to admit the will to probate and to issue Letters Testamentary. Once the hearing has occurred, the judge signs an order, and the Executrix or Executor swears an oath that they will lawfully administer their duties. Following the oath, the Executor or Executrix will then receive the Letters Testamentary, which will give them the authority to administer the estate.
With the assistance of a probate attorney, the Executor or Executrix must notify creditors in the newspaper within a month of receiving the Letters Testamentary. They also need to notify known creditors of the issuance of the Letters Testamentary.
Within 60 days of the court order, the Executor or Executrix is also required to send letters to each of the beneficiaries along with a copy of the will.
Within 90 days of the order, the Executor or Executrix must also file a sworn affidavit notifying the court that they have completed the notice to the beneficiaries. Also, within 90 days of the court order, the Executor or Executrix must file an Inventory, Appraisement, and List of Claims with the court.
If an independent administrator is appointed as Executor or Executrix of the will, they will be able to complete all the other associated duties without the supervision of the court. They must pay due claims and taxes and disburse the deceased assets to beneficiaries according to the terms outlined in the will.
Probate Process Timeframe
If the probate is an independent administration and the estate is simple, the whole probate process can potentially reach completion in six months or less. However, several complicating factors can lengthen the timeframe considerably. If the probate is a dependent administration, the increased supervision and involvement of the court can mean that the process may take up to a year or even longer.
Other situations can also lengthen the timeframe, such as if the original will cannot be located or if beneficiaries or creditors file claims against the estate. Such circumstances will require additional time to resolve.
How a Dallas Probate Attorney Can Help
Hiring an experienced probate attorney can help you ensure that the probate process goes as smoothly as possible if you are the Executor or Executrix of a will. They can assist and advise you in properly discharging your fiduciary duties and drafting the necessary legal filings and pleadings quickly.
The Dallas probate lawyers at Staubus and Randall have the knowledge and experience to help you with the various procedures of the Dallas County Probate Court. Our seasoned probate legal team will be there with you at every step to streamline the process and help you see to it that your loved one’s estate is distributed efficiently and correctly.
Contact us online, or call us for a consultation today at 214-691-3411.
There are many practical, financial, or sentimental reasons people want to leave their homes to their children. No matter your motive for wanting to do so, it is important to have an estate plan that is clear regarding property distribution. A clear estate plan help protect the best interests of both you and your family.
There are different ways of passing your home on to your children, including:
Selling or gifting it to them while you are still living
Bequeathing it to them when you die
Signing a “Transfer-on-Death” deed
There are legal and tax implications for all these options. It’s important to carefully consider the various pros and cons to make sure that your property does not end up becoming a burden for your children.
Below is a breakdown of each of the various options. Feel free to contact us if you have further questions.
Selling Your Home to Your Children
As a parent, you have the right to sell your home to your children. However, it is important that you sell at a fair market value. This means that you should sell the house at a comparable value to what similar properties are selling for in the current market. Selling the home below market value will make the exchange partially a gift, which will have its own tax implications.
You have the option to loan money to your children so that they can purchase the home, but the law will require you to charge your kids interest. Furthermore, you’ll have to declare the interest you earn as income. However, one benefit of doing this is that you can structure the loan to provide a minimum interest rate. This is calculated by the IRS, which publishes its rates for loans between relatives on a monthly basis. These rates tend to be considerably lower than commercial mortgage rates, so their monthly payments will be significantly lower as well. If you have pressing questions about your case, reach out to the estate planning professionals at Staubus and Randall.
Gifting the Property to Your Children
If you would like to give the property to your children while you are still living, one option is to use an irrevocable trust. This can help in protecting against your kids’ potential creditors. Gifting a property outright can be problematic if the recipient gets into financial trouble at some point down the line. For example, if the child has to file for bankruptcy, the property could be foreclosed and removed from the family’s ownership.
For this reason, many people consider it a better option to transfer the home after they pass away.
Bequeathing Your Property When You Pass Away
An effective means of passing your property to your children at the time of your death is to do so through a revocable living trust. This will permit you to name your kids as successor trustees, which allows for a continuity of property management. You can change revocable living trusts during your lifetime, which gives you the option of changing your mind. It also allows you to be specific about how the property should be handled after you pass.
In the event that your children do not want to live in and manage the home, the trust can sell it after you pass. If one of your children wants to keep the house, but the others don’t, you can make a compensatory equitable financial arrangement, such as leaving extra money to the child who won’t inherit the property.
The state of Texas allows homeowners to sign a Transfer-on-Death deed. This works similarly to “payable-on-death” designations for transferring assets from your bank accounts to your heirs. Transfer-on-Death deeds can be helpful in that they can avoid probate on the home. You can change the designation at any point before you pass away.
You are permitted to sign a Transfer-on-Death deed for any property you own in Texas, even if it is not your permanent residence.
Call an Experienced Dallas Estate Planning Attorney Today
Whichever option you choose for passing on your home, the process can be very complicated. The Dallas estate planning lawyers at Staubus and Randall have the knowledge and experience necessary to help guide you through these complexities. Whether you are having trouble deciding which path is best for you and your family, or if you are feeling confused about the required paperwork, we are here to help you at every step of the way in this important decision. Contact a member of our legal team today at 214-691-3411, and we will discuss all of your options. Let us put our experience to work for you.
One of the most common myths about estate planning is it’s only for the terminally ill or wealthy. However, anyone of any age could benefit from creating an estate plan. Even if you don’t have high-value assets or children, executing a will, trust, and other legal documents can protect your interests and your family’s future.
There isn’t a magic age when making an estate plan is necessary. You can begin right now. Execute your estate plan to protect your loved ones and take care of them even when you’re gone. To discuss your estate planning options, contact us today.
Documents Included in an Estate Plan
Many people picture millionaires with sprawling property, expensive jewelry, and fancy cars when they think of estate planning. However, an estate plan isn’t as extravagant as it sounds. It can provide security during a person’s life and after their death.
You can execute various documents while planning your estate. If you have questions regarding your estate planning, don’t hesitate to contact us.
Last Will and Testament
A will outlines a person’s final wishes and instructs an executor or administrator on how to administer the estate. A will can also determine which people should take on specific responsibilities, such as:
Managing your estate plan
Caring for minor children
Selling or taking ownership of property
It’s critical to designate your beneficiaries and update the beneficiary designations in your will regularly. If there’s a death or birth in the family, you might want to change who you leave your assets to upon your death.
Your dependents should be named beneficiaries on bank accounts, so the funds transfer automatically when you die. You can also choose who you want to receive your retirement plan, real estate, personal belongings, and other property.
A living will might also be a good option if you want to instruct your loved ones on medical care should you become incapacitated. For example, if you suffer a coma from a car accident, your living will can outline your decisions regarding extraordinary life-saving measures and medical care. If you have a living will, your family can direct your medical team on what you want and don’t want when you can’t speak for yourself.
Power of Attorney
A power of attorney (POA) can serve multiple functions, including:
Making medical decisions upon your incapacitation
Handling your legal matters
Managing your finances
When you create a POA, it’s vital to grant someone the authority to handle your affairs. You can execute a general power of attorney, allowing the chosen agent to manage various matters or create separate POAs to protect your medical, financial, and legal interests.
The three main types of POAs include:
Medical POA – A medical POA gives the agent authority over crucial medical decisions if you’re unconscious, incompetent, or otherwise unable to speak for yourself. They can talk to your doctors about medications you avoid, surgical procedures you want, and have input on other medical services.
Financial POA – With a financial POA, your agent can make decisions regarding your finances if the circumstances prevent you from doing it yourself. For example, if you’re in a different country for a significant period, you can give your agent authority over necessary decisions in your absence.
General POA – A general POA is a broad document allowing the agent to manage a range of decisions, including those involving business operations, financial transactions, life insurance purchases, and gift contributions.
A grantor can set up a trust and transfer assets to be held in the trust until their death. Upon their death, the assets can be distributed to the named beneficiary without probate. Trusts are beneficial in estate planning because beneficiaries can receive the assets left to them without going through a time-consuming court process.
The appointed trustee is responsible for managing the account and transferring property when the grantor dies. If you set up a trust, you should choose a trustee you know will follow your instructions. It should be someone who will ensure that your beneficiaries receive your assets instead of transferring them to themselves for personal gain.
Common Life Events for Estate Planning
Significant events in life often spark a person’s interest in creating an estate plan. The most common include:
Marriage or divorce
Buying a home
Birth of a baby
Acquiring new or high-value assets
Starting a new career
Opening a business
Death of a family member
Receiving an inheritance
Maybe something in your life happened to make you think about estate planning. If you already have a plan in place, you might have to make changes depending on the new circumstances. For example, if your named beneficiary dies, you need to amend the document and pick a new beneficiary.
Staubus and Randall believes in helping our clients secure their futures and protect their interests. When you’re creating an estate plan, you want to ensure that your loved ones receive specific assets and won’t face the burden of making important decisions on your behalf when you die.
Estate planning is necessary for anyone regardless of age, health status, and economic standing. It’s especially crucial to create a valid estate plan if any of your beneficiaries have special needs. Without a carefully drafted will, trust, or other legal documents, your dependent family member’s future isn’t secure.
If you die without a valid estate plan, you leave your dependent special needs adults without the financial means to afford their care. They might not be able to pay for medical treatment, household assistance, and other necessary expenses. If they depended on someone their whole life and that person dies, they’re left alone to fend for themselves.
You should create an estate plan specifically for the dependent adults in your life. If you’re their primary caretaker or pay for their nursing home bills, you should set aside funds and execute a will, so they continue receiving the care they need when you’re gone.
Below are tips you should follow for creating an estate plan for special needs adults. Contact us immediately if you have pressing questions. We have the experience you need.
Write a Letter of Intent
A letter of intent notifies your guardians, trustees, and other people involved in the estate about the care of your disabled or incompetent family member. You can outline this person’s routine, physical or mental impairments, interests, hobbies, medical needs, and other crucial details in this letter.
This isn’t a legal document. However, it’s valuable to any estate plan involving a special needs adult beneficiary. You should draft the letter immediately and regularly update it as your loved one’s needs change. It’s also important to have a conversation with anyone you address in the letter to discuss how they should handle these circumstances when you die.
Create a Trust
Dependent adults typically don’t have the ability to maintain employment. They need someone else to pay for their household assistance, prescriptions, medical treatment, and other costs. You could set up a Supplemental Needs Trust (SNT) for the special needs adult in your life.
An SNT is a special trust you can use to transfer and hold assets for the benefit of your loved one and to cover their needs. Like a trust for a minor child, funds can go toward the adult’s care. Additionally, an SNT doesn’t prevent a special needs adult from qualifying for government assistance programs, such as Medicaid. If you have particular questions regarding your situation, don’t hesitate to contact us today.
Appoint an Executor of the Estate
If you don’t choose someone to manage your estate when you pass away, the court could appoint an executor for you. That means someone in your family you wouldn’t want to have control of your assets could become your executor. It’s vital to choose an executor while creating your estate plan and mention them by name in the legal document. Specifically indicate that they should be in charge of administering your estate upon your death.
Your family member in need of care should receive the assets, assistance, funds, and anything else you leave for them. Discuss your decision with the executor ahead of time, so they understand the situation. You should pick someone you trust to carry out your wishes and keep the dependent adult’s interests in mind.
Choose a Power of Attorney
You might not realize the benefits of choosing a power of attorney (POA) during estate planning. An estate plan isn’t only necessary while planning for death. It should also include instructions on how to handle your incapacitation.
Let’s say you sustain a traumatic brain injury in a car accident and can’t speak for yourself. Your POA can step in and direct your healthcare team. Depending on your estate plan, they might also have access to certain assets while you’re incapacitated.
Your special needs adult child, parent, or family member won’t have someone to take care of them while you’re lying in a hospital bed. Your POA could take over temporarily by directing funds from your bank account to your loved one’s assisted living facility, medical providers, and other parties. They can become the caretaker while you recover.
Schedule a Family Meeting
Although you can leave instructions or letters in your estate plan for your surviving family, it’s best to also have open and honest communication in advance. Inform your family of your decisions regarding the dependent adult’s future.
You should discuss your plans for future care, financial support, and other important matters. If you choose an executor, talk to them about how you want them to manage your estate when you die and if you should become incapacitated. Proper planning ensures that everyone is on the same page and might prevent disputes down the road.
The Dallas estate planning attorneys of Staubus and Randall have over 100 years of combined legal experience. We bring extensive knowledge and skill to every case we take. When we represent you during your legal matter, you can rest assured that you’re in qualified and capable hands.
If you want to draft an estate plan to make provisions for the special needs adult you care for, do not hesitate to contact us at 214-691-3411. We have the experience you need and will be happy to meet with you for a free consultation to discuss your needs.
You may not have thought about placing your assets in a trust. It might seem too complicated, or you may think it’s just not necessary at this time. And thinking about a trust also means thinking about not being around anymore, and that’s never pleasant. But there are some good reasons to consider seeing an estate planner and discussing the pros and cons of putting your assets in a trust.
Very simply, a trust is a big box where you can store your assets until you’re ready to give them to someone else. Unlike a will, which is a list of directions for giving away your things, a trust is more like a gift you give to others when you’re gone.
Once you place items in the trust, your assets will stay there until you take them back out again. In an irrevocable or unbreakable trust, nobody can take them out. They are there until you die, and they are given to the beneficiary. In a revocable trust, you can take things out, but the beneficiary cannot. In some cases, you or the beneficiary may receive payments from the trust, like stock dividend payments.
A trust lets you control who has access to your property, and when. Trusts also allow you to disburse some of your assets before you die and to provide for minor children or for disabled or special needs family members who may not be able to manage their own funds. Your estate planner will discuss the benefits of a trust with you. Contact us today.
Four Reasons To Establish Your Trust
You may think you don’t need a trust, but consider these benefits:
Control of your assets. The trust does not exist until it is made, but after that, the trustee has total control over the trust. You will be able to manage where your assets go, who has control of them, and when they are dispersed. For instance, if you want a trustee to handle your children’s finances until they are out of college, the trust structure provides the way for them to do that. Your children remain the beneficiaries and can receive payments from the trust.
Avoids probate. A trust goes into effect immediately upon the death of the grantor (you). At this point, the trust becomes irrevocable, and nothing can be changed, so there is no need for a judge to make any decisions about interpretation. The trustee can make any distributions needed and manage the other trust property as before.
Provide for minor, disabled, or spendthrift beneficiaries. By designating certain assets ahead of time for beneficiaries who will need a designated trustee, you can ensure these individuals are properly cared for. If you have beneficiaries whose access you want to restrict, there are ways to prevent them from receiving too much money at once.
Protection in case of disability. Living to extreme old age in good condition is no longer an impossibility, but assisted living facilities are not cheap. Placing your assets in a trust today can be a way to ensure you have the funds you need to live your twilight years in comfort rather than squalor.
In some situations, you should always have trust arrangements in place. If you have a special needs child who is unable to live outside the home, long-term financial planning is a must. Someday you will not be there for your child, and you do not want to leave them to the kindness of strangers.
This is also true if you have a family history of any mental or physical degenerative diseases, such as Alzheimer’s or Parkinson’s disease. The worst that could happen is that you reach healthy old age with extra money in your trust.
How We Can Help
There is no wrong time to make your estate plan. If you have concerns about your future, you should start thinking about how you want to have your property managed when you are not here to do it. Financial planning is the best way to be sure your loved ones are cared for if you are not here to look after them.
Anyone can establish a trust, provided they have something to put into it. You don’t need to be wealthy or have lots of property to have a trust. If you want to discuss your estate plan, contact the Dallas estate planning lawyers of Staubus and Randall at 214-691-3411 for a free consultation to talk about your assets and the right kind of trust for you and your family. We have the experience you need.
Common misconceptions regarding estate plans might prevent someone from planning for the unexpected. Drafting a will is vital to protect your assets and loved ones, even if you’re young and in good health. You might not think estate planning is necessary. However, it could give you peace of mind if a significant event disrupts your life or cuts it short.
Most people believe they don’t have to create an estate plan until they’re old or develop a terminal disease. Some people don’t realize the benefits until an accident or near-death experience happens in their lives. Others never create a will and pass away unexpectedly, leaving their family struggling to recover their assets.
If you don’t have an estate plan or haven’t updated yours in a while, you should consider contacting Staubus and Randall to take immediate action. Planning for death may seem like a morbid experience but it can help you secure your family’s future. Creating a valid estate plan is particularly crucial if you have kids and want them cared for when you’re gone.
Additionally, estate planning isn’t only about what should happen when you die. You can also outline instructions regarding your healthcare if you become incapacitated and can’t make decisions. With the proper legal documents in place, a trusted family member could step in and speak on your behalf.
Below are some common myths about estate planning you should ignore.
MYTH: An Estate Plan Is Only Necessary for Sick and Old People
A common misconception about estate planning is it doesn’t need to happen unless you’re elderly or have received the diagnosis of a life-threatening illness.
However, anyone could lose their life or suffer a debilitating condition, leaving them without the ability to communicate. If you don’t have legal documents in place to instruct others about your wishes, the people you love could face financial hardships and struggle to make the decisions you want.
The truth is that you’re never too young to create an estate plan. Even if you don’t have assets, you might have a pet or kids. It is essential to leave instructions about who should take care of them if you can’t. Otherwise, your children could end up in foster care, and your pets could get dropped off at a shelter.
Whether you have many or only a few assets, your estate plan can direct how they should be distributed. You can include beneficiaries in your will, so they receive things like your bank account, house, or car when you pass away.
MYTH: Wealthy Individuals Benefit More from Estate Planning
While wealthy people require estate plans to ensure that their high-value assets stay protected, others need one too. It doesn’t matter if you’re not rich or only have one or two assets in your name. You can’t control who receives the funds in your savings account or personal property if you don’t include it in a will or a trust.
Estate plans can involve more than just money and significant assets. You might have family heirlooms you want to pass down when you’re gone. Creating documentation that specifies who should receive certain items could prevent family disputes. If you don’t inform others of what you want, property can go missing, and family members can take each other to court for possession of what they believe they deserve.
MYTH: Estate Planning Is for Death
An estate plan doesn’t only address matters involving a person’s death. It can also be helpful in situations that occur while someone is still alive. Although you might not worry about the possibility of a traumatic life event, anything can happen.
When you create a will, you can designate an executor or administrator to manage your estate and distribute property according to your wishes upon your death. However, a range of other legal documents can protect your interests if you’re no longer competent.
For example, a medical power of attorney gives someone you appoint the authority to make your healthcare decisions when you’re incapacitated. If you create a financial power of attorney, your designated agent can handle your finances if you’re forced to leave the country for an extended period or end up in the hospital.
You can take additional measures to ensure someone is responsible for managing your children’s needs while you’re incapacitated. You can choose a guardian to assume the role of caregiver and set aside funds they can use for your child’s medical care, education, and basic needs.
Contact Staubus and Randall
Since 1992, the Dallas estate planning lawyers of Staubus and Randall have provided clients with dependable legal services. We know how to create comprehensive estate plans to protect your rights and your family’s future. You can count on our legal team to dedicate the necessary time and resources to plan and execute a valid will and other valuable documents for you.
If you’re considering creating an estate plan, call Staubus and Randall right now at 214-691-3411. You can discuss your needs with us during a free consultation and learn about the available options.
A medical power of attorney (POA) is a legal document you create while you’re making your estate plan. This document gives someone the authority to make decisions regarding your healthcare when you can no longer make those decisions for yourself. The person you appoint as your medical POA could instruct your medical team about treatment you don’t want, medications you prefer, and end-of-life care.
A medical POA should be someone you trust completely and who you know will fulfill their obligations and carry out your wishes. Even if they disagree with your decisions, they should be willing to carry out the plans you choose if you become incapacitated and can no longer speak for yourself. When you can’t discuss your medical needs and wants, they are your voice.
Many people choose to create a durable medical power of attorney. A durable POA allows your agent to act on your behalf if something happens to you, preventing you from making your own decisions. Some courts assume a medical POA is durable, but you should explicitly state that in the legal document.
Elements of a Medical Power of Attorney
Medical POAs can also be referred to as:
Medical power of attorney directive
Advance healthcare directive
Power of attorney for healthcare
A medical POA focuses on medical decisions. You should write one according to state law. If you make an error or don’t include the necessary signatures, someone could challenge its validity in court.
Most people think they don’t need a medical POA unless they develop a terminal illness or physically disabling condition. However, this directive can be useful in many situations. For example, if you’re in a car accident and end up in a coma, you can’t communicate your wishes to your doctors. Your medical POA can step in and direct your healthcare team.
A person who’s been given your medical power of attorney can make decisions regarding:
Do not resuscitate (DNR) order
Medical supplies and devices
Medical facilities and providers
Organ and tissue donation
Home health care
Long-term care facilities
Your medical POA can also access your medical records if necessary. Sometimes, reviewing this information can help make informed decisions about your care.
When Your Medical Power of Attorney Takes Effect
A medical POA becomes effective when you become incapacitated. You can also include instructions in your estate plan regarding specific events that authorize your POA to take over your healthcare needs. Examples include:
An accident puts you in a coma or unconscious state
You are under general anesthesia
A doctor diagnoses you with dementia or another disease that interferes with your ability to make good decisions
A medical condition, such as a stroke, causes communication issues
You have a lapse in mental health, resulting in incompetence
Your medical power of attorney can take effect whenever you choose. However, it typically becomes effective upon incapacitation. A doctor must confirm your condition in a written letter or in your medical records.
Choosing Your Medical POA
When creating an estate plan, you should carefully choose a medical power of attorney. The person you appoint must be a competent adult at least 18 years old. Minors can’t act as anyone’s POA.
You should also consider these characteristics when deciding whom you want to designate:
Remains calm in a tense situation
Communicates with family members regularly
Makes quick decisions regarding treatment and other necessary choices
Asks questions if confused about treatment options
Feels comfortable making vital decisions on the spot
Knows how to take control and instruct healthcare professionals confidently
Follows through with your directives regardless of personal opinions
Whoever you choose, it should be someone you know will keep your best interests in mind and follow all instructions you provide. If you can’t trust the person you pick, they shouldn’t be your medical POA.
How to Create a Medical Power of Attorney
Creating a valid and enforceable medical POA requires following these steps:
Determine whether you need a medical POA – If you want control over your healthcare decisions, you should designate a medical power of attorney. Without one, your doctors can make the decisions they believe are best while caring for you. That could result in extraordinary measures to keep you alive when that’s something you don’t want.
Pick a dependable agent – You should only choose a medical POA you know you can rely on to make the decisions you want to be made. An emotional or irrational family member might choose medical options that aren’t in line with your wishes.
Complete the paperwork – You have to fill out several different forms to establish a medical power of attorney. It’s only valid if you sign it in front of a notary public or two witnesses.
If you are in the process of writing your will or trying to determine how the property of a family member will be handled after their death, you may have encountered the term probate. Probate is the legal process by which a person’s estate, their property and possessions, are handled after they pass on.
In the probate process, a court officially recognizes a person’s death and determines how their assets are distributed among family members and other beneficiaries. If the deceased left a will to direct where their property should go, the procedure may be simpler. Some items do not have to go through probate, but others, especially those lacking titles or not named in the will, may have to go through this process.
How Does the Probate Process Work?
The probate process can be daunting to those without experience, but the good news is that compared to other states, probate in the State of Texas is relatively simple. The Texas probate process can be broken down into several steps:
Filing with the probate court – An application for probate is filed with the proper probate court for the county where the deceased was a resident.
Posting notice – Before a hearing is held regarding a probate application, there is a ten-day waiting period to allow for anyone to contest the will or the administration of the estate.
Hearing and validation – After the waiting period, there will be a hearing and the probate judge will ensure that the will is valid or verify that the deceased did not leave a will. The judge will then appoint an administrator for the estate or will verify that the executor is valid.
Inventory of assets – Within 90 days of the appointment of an administrator or executor, that person must compile a list of all the assets held by the estate and file it with the county clerk, in the form of a report known as an Inventory, Appraisement, and List of Claims. This report lists the estate’s assets as well as a reasonably accurate estimation of their value as of the deceased’s passing.
Notify beneficiaries – If the deceased left a will, the executor must notify the beneficiaries of the estate. If there was no will, the probate court must determine heirship. In the case of unknown potential heirs, it may be necessary to post notices in newspapers and at the courthouse.
Notice to creditors – The deceased may have unresolved debts, also known as liabilities—hospital bills, house or car payments, or other major expenses. The executor must notify creditors of the person’s death and allow them the opportunity to make a claim against the estate.
Dispute resolution – If family members or potential beneficiaries wish to contest the will, the probate court must hold a hearing before finalizing the estate.
Distribution of Assets – Once any disputes are resolved and the estate has been finalized, the assets are distributed to the beneficiaries.
The probate process contains specialized legal vocabulary and concepts that you may find confusing if you’ve never experienced them. Here are a few commonly used terms.
Administrator – When a person dies without a will and an executor hasn’t been named, Texas law requires that an administrator be appointed to manage the estate.
Assets – Property with a monetary value held by an estate. Real estate, vehicles, clothing, jewelry, bank accounts, cash, and furnishings would all be considered assets.
Beneficiaries – These are the recipients of the property distributed from an estate, whether family members, friends, or organizations.
Decedent/Deceased – These terms refer to the person who has died.
Estate – The assets that belonged to the deceased person are collectively known as the estate.
Intestate – This term refers to an estate whose owner died without a will. A probate court must determine how to distribute the assets of such an estate.
An estate litigation lawyer from Staubus and Randall can explain any confusing terminology and answer any questions relating to your own probate case.
Speak with a Texas Probate Attorney Today
Managing your family’s affairs after the death of someone close is hard enough without all the extra strain of sorting out their estate. The probate process can be complicated, and mistakes could potentially be costly. You need a knowledgeable estate lawyer who can guide you through this process efficiently and with a minimum of stress.
Most people want to take care of their family even after they’re gone. Creating a last will and testament can make sure that your assets pass to your chosen beneficiaries upon your death. That way, there won’t be any confusion about what assets you intended to go to which person.
Drafting a last and will and testament isn’t as complicated as you might think. If you want peace of mind knowing there won’t be any confusion about what happens to your property after you pass away, you should hire an estate planning lawyer and begin the process of creating a will today.
Every part of an estate plan has its advantages and disadvantages. A will is no different. There are pros and cons you should consider if you’re thinking about setting up a will.
Pros of Having a Will
The advantages of creating a last will and testament include the ability to:
Distribute assets how you want – Any property you leave behind will transfer to your named beneficiaries. If you don’t create a will or choose beneficiaries for your estate, the assets will likely be distributed by intestate succession. That means specific heirs will receive your assets according to state law. Creating a will allows you to control who gets what, so you can avoid family disputes.
Choose a guardian – If you have minor children, you can choose a guardian to assume their care after you pass away. When you draft a will, you can name a guardian and set aside money for them to use to provide for your children. A guardian prevents the child from ending up in foster care or with a family member you don’t want to entrust your children to.
Appoint an executor – You can choose an executor to manage your assets according to your will when you’re gone. The executor is an individual who handles all aspects of the will by paying debts, distributing assets according to the deceased’s wishes, and closing the estate properly. You don’t have to worry whether your surviving family will honor your wishes when you have a trusted executor to manage your estate on your behalf.
Create a plan for your pets – Pets are like family to most people. Whether you have a dog, cat, hamster, or lizard, you probably want to know they’ll end up in a loving home when you die. You can use your will to indicate who you want to assume care of your pet upon your death. You can also set money aside so the guardian you choose can pay for food, toys, vet appointments, and other necessities.
Cons of Having a Will
Although a will is beneficial for most people during estate planning, it can also create some challenges. The most common disadvantages of having a last will and testament include:
It’s public – Once a will enters probate, it becomes a public record. That means anyone can search online for the legal documents and find out the assets you owned when you died. If an estranged relative isn’t included in your will, they could pursue legal action, delaying the process of distributing your assets to your chosen beneficiaries.
Time-consuming probate – Your estate will likely have to go through probate after you die. That means your loved ones can face a lengthy process to get the court to validate the will so they can receive the assets you left them.
Incapacitation doesn’t apply – You can’t use a will to appoint someone to take care of your medical, legal, and financial matters if you become incapacitated and can’t make your own decisions. A will only becomes effective upon your death.
Court procedures in multiple states – Unfortunately, your beneficiaries can’t go through the probate process just one time if you have property in other states. They must submit your will for probate in each state where you own assets.
Contact an Estate Planning Lawyer from Staubus and Randall
At Staubus and Randall, we have over 100 years of combined experience helping our clients with their estate planning. We will use our resources and personalize our services to meet your specific needs. When you hire us, we can review the circumstances of your estate and draft a will that can protect your assets and family.
You should not attempt to create an estate plan on your own. The option might seem appealing because it saves you money, but you could open yourself up to serious problems down the road. If you don’t draft the documents correctly, your will could be invalid, allowing relatives to sue your heirs for the assets you left behind. Additionally, a poorly drafted estate plan can cause confusion about your final wishes.
If you want to create a last will and testament, do not hesitate to contact Staubus and Randall at 214-691-3411 for a free consultation with one of our Texas estate planning lawyers.
A power of attorney (POA) is a legal document granting someone the authority to manage your affairs if you’re unable to yourself. A POA can become effective once you sign the document or if a specific event occurs, such as incapacitation.
When you create a power of attorney, you can appoint an attorney-in-fact, also called an agent, to make decisions on your behalf. There are multiple types of POAs you can draft depending on the kind of affairs you want your agent to manage.
The agent you choose does not have to have a legal background. However, they must be at least 18 years old and of sound mind. You should pick someone you trust to make the decisions you would make regarding your assets, finances, medical care, and any circumstances that arise. Your agent should be a person you know will act in your best interest and who will be willing to carry out the wishes you outlined in the POA.
Types of Power of Attorney
There are different types of POAs. Each one has a unique purpose and offers distinct benefits. You can designate a different agent for each or one person to handle all of your affairs. The different types of power of attorney include:
Durable and non-durable POA
Medical, financial, or military POA
Durable and Non-Durable Power of Attorney
A durable POA goes into effect if you become incapacitated due to an accident or illness. The signed document allows the agent you choose to make specific decisions on your behalf.
You can decide whether you want your agent to have authority over your decisions upon signing the POA or when a medical provider deems you to be incompetent. You can also appoint a specific doctor you trust to determine whether you’re incompetent.
A non-durable POA is effective until you become incapacitated. If you don’t create another legal document to determine what should happen if you’re deemed incompetent, no one will have the authority to speak on your behalf if you can’t speak for yourself.
Limited Power of Attorney
A limited POA grants your designated agent authority over minimal matters. You can set the conditions for the affairs your agent can handle if a specific event occurs, such as when you experience a medical problem or take a business trip to another country. Instead of making all of your decisions, they can only make decisions based on predetermined circumstances.
The most common affairs listed in a limited POA include:
Facilitating business transactions
Selling real and personal property
Managing real estate
Springing Power of Attorney
A springing POA becomes effective when a healthcare professional deems you to be physically incapacitated or mentally incompetent. A qualified doctor must declare you mentally incompetent or physically incapacitated before your attorney-in-fact can make decisions on your behalf.
Medical, Financial, or Military Power of Attorney
A medical POA grants your agent the responsibility and authority over medical decisions. If you’re incompetent, unconscious, or unable to speak for yourself for any other reason, your appointed agent can communicate your wishes regarding healthcare to your doctors.
For example, if you have a strong opinion about life support, you can include that in your medical power of attorney. You might not want doctors to use extraordinary measures to keep you alive.
A financial POA allows your agent to make financial decisions on your behalf when specific situations prevent you from being present. For example, if you’re traveling abroad for an extended period, you can give your agent the authority to make important decisions about your finances in your absence.
You can even create a financial POA to kick in if you’re mentally incompetent or incapacitated and unable to make sound financial decisions.
A military POA allows someone you choose to manage your finances while you’re performing your military duties. That person can access your accounts, file taxes, and complete additional financial tasks if you cannot do those things yourself.
General Power of Attorney
A general POA is a broad power of attorney granting your attorney-in-fact authority over a range of decisions, such as:
Providing gift contributions
Purchasing life insurance
Managing business and financial transactions
Operating a business
Your designated agent can protect your interests and handle matters outlined in the document while you’re traveling, if you become incapacitated, and in various other situations.
Speak to an Experienced Estate Planning Lawyer Today
Contact an estate planning lawyer from Staubus and Randall immediately if you want to create a power of attorney and don’t know which one would be most beneficial for you. You need guidance to choose the right POA to cover your specific circumstances and to help you draft an enforceable legal document so no one can argue its validity. Call 214-691-3411 now for an appointment.
A living trust is a legal document you can establish to protect your assets during your lifetime. Your appointed trustee has the authority to manage any property and assets you move into the trust and eventually transfer them to your named beneficiaries as outlined in the document upon your death or incapacitation.
Everyone knows they should create a last will and testament. Unfortunately, many people don’t understand how beneficial a living trust can be.
If you’re considering your options during estate planning, you should review the main reasons below for why you should create a living trust.
You’re Unable to Make Decisions for Yourself
Creating a living trust protects any assets you transfer into the trust during your lifetime so your loved ones can have access to them if you become incapacitated. It’s a good idea to set up a living trust if you have a terminal illness, cognitive disease, or are older.
If something happens to you and you can’t speak for yourself, the trustee you choose can manage your trust on your behalf.
Even if you’re young and healthy, creating a living trust is an excellent idea in case you’re involved in a traumatic accident, such as a car crash, and end up in a coma. You won’t be able to inform your family of your wishes or how to pay for your medical bills and other expenses. However, granting your trustee access to the trust allows them to manage your funds without the need to go to court.
You’re Responsible for the Care of Minor Children
If you want to ensure your child’s future, you can hold specific property in your living trust to have transferred to them when they reach the age you designate.
Some people decide 18 years old is the right age to give their kids access to their assets. However, others might think that’s too young for someone to be responsible for managing their own finances and choose to transfer assets out of the living trust and to the children once they reach 25 or even 30 years old.
When you establish a living trust, you can be the trustee yourself and appoint a successor trustee in case something happens to you, or you can decide who you want to be the trustee. The trustee manages the assets held in trust until they can transfer them to your children based on the directions you left behind.
You can also include specific terms regarding which assets your children can access and at what ages. For example, you can create a payment plan for your kids to receive a predetermined amount of money every month starting at the age you decide. That way, they can’t spend the funds frivolously all at once.
Your Beneficiaries Won’t Have to Go Through Probate
Probate can be a complicated and time-consuming process. It involves a probate judge validating a deceased’s person’s estate and allowing the beneficiaries to receive the assets outlined in the legal document. Unfortunately, that means it could take weeks or even months before your heirs can use the funds and additional property left to them in your estate plan.
With a living trust, your beneficiaries can avoid probate and gain immediate access to your assets upon your death, incapacitation, or another specified event without going to court for authorization first.
Keep Your Private Matters Private
If your surviving relatives have to go through probate to receive your assets, your estate becomes a matter of public record. Anyone can look up the information online, preventing your estate from remaining private.
If you set up a living trust, your family avoids the probate process and can manage your assets privately. That means no one will have the ability to search for the assets you owned when you died and your named beneficiaries that took ownership of them after completing probate.
Contact an Experienced Estate Planning Attorney
You don’t want your loved ones to struggle if something happens to you. You want to ensure they’re taken care of if you’re no longer able to care for them whether you pass away or become incapacitated. Creating a solid estate plan can protect your property and family and give you peace of mind knowing your heirs will receive the assets you left for them without any obstacles getting in their way.
If you’re thinking about creating a living trust, you should speak with an experienced and knowledgeable estate planning attorney from Staubus and Randall. We can review your assets to determine whether a living trust could be beneficial for you. Call us today at 214-691-3411.
You should create a living will if you want your family and medical providers to know how to handle your medical care if you can’t speak for yourself.
A living will is a legal document that outlines your preferences regarding the type of medical treatment you want if you can’t make your own decisions. The instructions you provide should direct your family members and doctors when specific circumstances arise, such as:
With a living will, you can indicate your wishes for end-of-life care and whether you want your physicians to use extraordinary measures to keep you alive. You can also outline your decisions regarding medication, pain management, and additional medical preferences.
The Importance of a Living Will
A living will gives you peace of mind knowing you will receive the medical treatment you choose if something happens and you can’t inform anyone of your wishes. It can also relieve any burden your family would have had if they were forced to make challenging decisions on your behalf. If you clearly state what you want in your living will, it could prevent your family members from arguing over how to handle your medical care.
Who Can Create a Living Will?
Anyone at least 18 years old and of sound mind can set up a living will. Sound mind means you understand your decisions regarding the terms of the living will you’re creating.
Most people think older adults and individuals with a terminal illness are the only ones who can benefit from a living will. However, a valid living will can also help when unexpected scenarios arise, such as a fatal disease or car crash resulting in a coma.
When a Living Will Becomes Effective
A living will is only effective while you’re alive and unable to make sound decisions. Once a doctor deems you incompetent, incapacitated, or otherwise unable to communicate how you want your medical treatment to be handled, your living will can go into effect.
Typically, your medical provider will evaluate your condition to determine whether you no longer have the ability to understand your available treatment options and communicate your wishes.
If you pass away, your living will isn’t effective or enforceable anymore.
Difference Between a Living Will and Last Will and Testament
A last will and testament is much different than a living will. The main difference is that a last will and testament outlines how you want your estate handled when you die. A living will directs people to make health care decisions under specific circumstances when you can’t speak for yourself.
Decisions You Should Include in Your Living Will
If you decide you want to create a living will, you should hire an estate planning attorney and consider your options regarding end-of-life care. The most common scenarios people include in their living wills are:
If you’re no longer able to eat on your own, you could receive the fluids and nutrients you need intravenously or through a tube in your stomach. Specific points you should address include:
Whether you want a feeding tube
When you want to be connected to a feeding tube
The length of time you should be fed through a feeding tube
Mechanical ventilation occurs when a person can’t breathe on their own. If you want to include these instructions in your living will, you should specify certain information, such as:
Whether you want mechanical ventilation
The circumstances that should arise to be placed on a ventilator
How long you want to be on a ventilator
You can choose whether you want your doctors to use specific medications in different situations. For example, if you develop a serious infection, you can decide whether you want antibiotics administered.
You might have a strong opinion regarding controlled substances and would rather avoid strong painkillers and similar drugs.
A living will can include a section on donations. If you want to donate your organs to someone in need, you should specify that in the document. You could also donate your body to science.
If your kidneys don’t function properly anymore, you can indicate whether you want to go on dialysis in your living will. Dialysis performs multiple functions, such as:
Assisting in controlling blood pressure
Removing waste, extra water, and salt from the body to prevent them from building up
Maintaining safe levels of certain chemicals in the blood, such as sodium and potassium
Contact an Estate Planning Attorney Today
If you want to create a living will, you should contact an estate planning attorney from Staubus and Randall today. We can advise you about the various elements of a living will to ensure you address all the necessary scenarios, so your family knows what to do if you can’t make your own decisions anymore. Don’t leave anything to chance. Call 214-691-3411 today.
There is currently more wealth being transferred between generations than at any time in our nation’s history. According to the Center for Retirement Research at Boston College, it is estimated that the baby boom generation will inherit $8.4 trillion over their lifetimes. It is also clear that the number of wills being contested is on the rise. Factors including the blended family, and parents living longer and being cared for either by one of their children or by a private caregiver, can result in late-in-life changes to Last Will and Testaments, which reduce or cut out the shares of family members. This is one of the classic recipes for a will contest. Here is what you need to know if you find yourself in that situation.
When Can a Will be Contested?
A will cannot be contested prior to the testator’s death. After death, it is most advantageous to contest a will prior to the hearing to admit it to probate, which is normally within approximately two weeks after it is filed with the Court. By contesting the will prior to it being admitted to probate by the Court, the burden of proof as to the testator’s mental capacity is placed on the person offering the will for probate, rather than on the contestant, which can be a significant advantage for the contestant.
Once a will has been admitted to probate, a will contestant has up to two years from the date of the contested will’s admission to file a will contest, or it is forever barred. If contested after the will has been admitted to probate, the burden of proof as to the testator’s mental capacity is on the contestant.
What are the Grounds for a Will Contest?
The primary grounds for contesting a will are lack of testamentary capacity and undue influence. In order to prove that a testator had the necessary testamentary capacity at the time the will in question was executed, the person offering the will, assuming the will is contested prior to it being admitted to probate, has the burden of proof to show:
The testator understood the business in which he or she was engaged, the effect of his or her act in making the will, and the general nature and extent of his or her property;
The testator knew his or her next of kin (the “natural objects of his bounty”); and
The testator had sufficient memory to collect in his or her mind the elements of the business to be transacted and to hold them long enough to at least perceive their obvious relation to each other and to form reasonable judgment about them.
In order to prove that a will is not valid because it was executed as the result of the exertion of undue influence on the testator, the contestant has the burden of proof to show:
The existence and exertion of an influence;
The effective operation of such influence subverted or overpowered the mind of the testator at the time of execution of the will; and
The will executed would not have been executed but for such undue influence.
Other potential grounds for a will contest are forgery, insane delusion, improper execution of the will, and fraud.
Obtaining the testator’s medical records is critical to any will contest to evaluate and to establish the testator’s mental capacity and susceptibility to undue influence at the time of execution of the will. A forensic psychiatrist can also be important in interpreting these medical records. The testator’s financial records are often critical in assessing the testator’s ability to handle his financial affairs, his knowledge as to the nature and extent of his property, and any evidence that the testator was being financially exploited. Depositions of the attorney (if any) who drafted the will, the witnesses and notary to the Will, and any caregivers of the testator are essential.
Whether you are contesting a will or are defending a contested will, it is important to have a full legal team experienced in the unique evidentiary issues, rules, strategies, and necessary expert witnesses to effectively assess and litigate a will contest.
For more information on will contests, or on other estate litigation, trust and fiduciary litigation, guardianships, or closely-held business litigation handled by the firm, visit the firm website, www.srllp.com, where you may download two available white papers on will contests:
On January 1, 2013, Congress passed the American Taxpayer Relief Act (ATRA), and shortly thereafter, President Obama signed the bill into law on January 2, 2013, ending what many had worried would lead to falling off of the “fiscal cliff,” being the scheduled radical reduction in estate tax and gift tax exemptions, and significantly higher estate tax and gift tax rates. With the passing of this important legislation, it is prudent to understand how these new laws may impact your personal estate planning.
Highlights of the American Taxpayer Relief Act (ATRA)
The following is a summary of the significant provisions of ATRA:
Sets a permanent 40% top tax rate for estate, gift and generation-skipping transfer (GST) taxes in excess of the exemption amount
Unifies estate and gift tax exemptions and currently sets these exemptions, as well as the generation-skipping transfer (GST) tax exemption, at $5.25 million per individual
Makes permanent “portability” possible by allowing the surviving spouse to elect to add the unused exclusion of the decedent to the surviving spouse’s exclusion, meaning that married couples currently can pass $10.5 million of assets without the worry of gift or estate taxes
Increase in the Annual Gift Tax Exclusion
In addition to the changes brought about by the American Taxpayer Relief Act (ATRA), the annual gift tax exclusion amount was increased to $14,000.00 per designee beginning January 1, 2013. This is an inflation-adjusted increase from $13,000.00 in 2012. Married couples may combine their annual gift tax exclusion amounts, which allows them to make tax-exempt gifts totaling $28,000.00 per designee.
Planning Beyond 2013
For many individuals who may have delayed estate planning due to the uncertainty that existed in 2012, now is the time to implement new estate plans, given the apparent stability in rates and exemptions for the foreseeable future. Even if estate taxes are not a primary focus or an issue for individuals, proper estate planning can be essential in offering protection from creditors and divorcing spouses, as well as offering protection to children and beneficiaries. Additionally, a well-developed estate plan can provide benefits in income tax planning, which is now particularly important for individuals who find themselves in higher tax brackets. Finally, proper planning is essential to small business owners who wish to do business succession planning to determine how their business will be controlled after their death, as well as which family members or business associates will benefit from and carry on the business.
Reviewing Existing Plans
Equally important to the planning process is the necessity of evaluating current family dynamics and changes in relationships which might affect the choices which individuals have made in existing documents, including whom they wish to appoint to make decisions for them under their health care power of attorney or general durable power of attorney, to act as guardians of their minor children or as trustees of their trusts, or to act as executors of their estate.
Another important issue in evaluating existing estate plans is the need to adequately review the often overlooked status of beneficiary designations on joint accounts with right of survivorship, insurance policies, and retirement accounts. The failure to properly coordinate these designations with the estate plan can cause assets to be distributed to persons which the individual did not intend, in a manner inconsistent with the overall estate plan, due to an incorrect or out-of-date beneficiary designation or account styling. This can also lead to estate tax and income tax implications that were unintended.
The American Taxpayer Relief Act (ATRA) has significantly impacted tax planning for individuals in the estate planning process. There are a number of important issues beyond estate and gift tax planning which all individuals should address and periodically review in order to secure their future and the future of their family and loved ones.
Ryan A. Randall, ranked as a Five Star Professional by Texas Monthly Magazine, concentrates his practice in Estate and Tax Planning, Asset Protection Planning, and Business Succession Planning.
Over the years, having litigated a number of catastrophic tort claims, I have frequently been asked by clients, as well as by students in my tort class at Collin College, to explain the difference between a Wrongful Death Claim and a Survival Claim. I explain the difference between these two claims as follows:
A Survival cause of action is something that belongs to the deceased for damages that he or she suffered before they passed away.
A Wrongful Death cause of action does not belong to the deceased but instead belongs to the surviving spouse of the deceased, a child of the deceased, or a parent of the deceased.
The deceased person’s heir or the personal representative of their estate may bring a Survival claim. The claims that may be asserted are claims that the deceased person could have asserted had he or she survived. For instance, if a person was injured in a car accident due to the negligence of someone else and died a few hours later from those injuries, then their heir or their personal representative could assert a claim for the medical bills incurred and the pain and suffering that the person endured from the time of injury to the time of death. This is just an example of a portion of the damages that the personal representative of the estate or the heir of the deceased could assert. Any damages recovered pursuant to a survival claim are subject to the debts of the estate.
The damages recovered under a Wrongful Death claim are to compensate the surviving spouse, child or parent of the deceased for their loss. These damages typically include loss of financial support, loss of inheritance, mental anguish, and the loss of the relationship. Any damages recovered under a Wrongful Death claim are personal to the Plaintiff, and are not subject to the debts of the deceased.
Both the Wrongful Death claim and the Survival claim typically have a two-year statute of limitations. There are a few exceptions to this limitation, which can best be addressed with an attorney on a case-by-case basis.
In some instances, it is preferable to assert only a Wrongful Death claim as opposed to a Survival claim, assuming you are a surviving spouse, child or parent of the deceased and are also an heir of the deceased’s estate. Whether you have an individual claim and/or are an executor or administrator of an estate which holds a potential claim relating to the Decedent’s death, it is important to consult with an attorney regarding the decision as to whether to assert a Wrongful Death Claim, a Survival Claim, or both claims, as well as to the viability and value of these claims.
Joseph E. Legere’s practice is concentrated in Will Contests, Trust Litigation, Guardianship Litigation, Fiduciary Litigation, and Catastrophic Tort Claims. For more information regarding Mr. Legere’s litigation practice, please visit The Attorneys page at www.srllp.com.
The attorneys at Staubus and Randall have over 100 years of combined experience in estate planning, probate, and litigation. We have the knowledge and skills to tackle complex legal issues, such as guardianships, will contests, fiduciary litigation, and trust litigation. We can also handle routine matters, such as estate administration, probating wills, heirship determinations, and other probate court matters.
Staubus and Randall received a preeminent AV rating from Martindale-Hubbell, which is the highest rating possible from a peer-rated legal service. This rating recognizes our hard work, dedication, and the case results we’re able to achieve.
What Our Clients Say
"I recently had the occasion to hire Mr. Staubus for a hotly contested Guardianship matter. Mr. Staubus brought a rare combination of effectiveness, reasonableness and understanding of the human element involved. Mr. Staubus handled all things in a calm, highly competent, effective and reasonable way. It could not have been as easy as he made it seem. He's a credit to the Bar."
"Before retaining the guidance of the Staubus & Randall firm, I was at my wit's end trying to close an uncle's estate as a co-executor. In addition to dealing with difficult heirs, I had other pressing business issues coming up immediately on estate land in the middle of the Eagleford Shale including dealings with pipeline, seismic, oil & gas, and construction companies. The local bank also refused to give me access to information relating to the estate. This quickly became the most stressful and desperate time in my life...and then I found Joseph Legere who truly became my guardian angel. He was able to get all issues resolved efficiently and the estate fully closed. His professionalism, immense legal knowledge on a wide variety of topics, and amazing communication skills took the burdens off of me and quickly got closure. I am forever indebted to this firm for giving me my life back."
"Without exception, the legal service, professional attitude, prompt communication of your firm and your legal knowledge is second to none. I only wish I had an attorney here in Boston that could hold a candle to your experience and expertise. Working with you has been a pleasure, but even more, has made me believe that there are knowledgeable attorneys that do care about doing a good job. Thank you Keith! You may not truly understand how much of an impact you are having on peoples lives, but for me, you have helped change my life. As I begin making my dreams come true I can't help but remember none of this would be possible without you."
"Keith Staubus and Julie Blankenship and their team represented me in a jury trial in the probate court where the ownership of the business which I had worked hard to build was at stake. They successfully fought to preserve my business and my professional reputation, working masterfully to gain the support of the jury. I would not hesitate to hire them again in any bet-the-company litigation.”
"I have required legal representation twice in my life in two separate will contests. Both times I sought assistance from Keith Staubus and Staubus/Randall. Their service, approach, and determination to obtain results exceeded the other attorneys in each case. Mr. Staubus has always come across as genuine while being direct. He gets the process done in a timely manner with results. I will certainly use him again when and if any new challenges arise.”
"After my husband's death, I was devastated by having to defend against a vicious dispute over my husband's estate. Julie Blankenship and Keith Staubus made me feel very comfortable in this distressing situation. They were very tough and did an excellent job for me in obtaining a summary judgment in my favor without a full jury trial. I was glad to have them and Diane Walker in my corner to help me achieve an excellent result - I won! If I ever had to go back to probate court, I would hire them again.” - (will and trust construction case)
"If you need intervention for someone you love but don't know where to turn or who to turn to, Julie Blankenship and Keith Staubus helped me through the most difficult and stressful time in my life with a much loved family member. I now believe that good will triumph over evil. They fought for what was right, and good prevailed."
(contested guardianship and will contest)
"As a professional money manager, I have used Ryan Randall's estate planning services both personally and for my clients. Ryan has exhibited three critical attributes in his work with me: (1) high intellectual capacity, (2) exceptional thoroughness, and (3) a total commitment to integrity. In today's litigious world, it can be quite costly not to "get things done right.” An added bonus to us was that we found one of the nicest people we could imagine.”
"I was represented by Keith Staubus as an income beneficiary in a lawsuit with the trustee of a family trust. Utilizing the expertise of a forensic accountant and his own trust expertise, Keith was able to negotiate a judicial modification of the trust providing for the buyout of my income interest for a substantial lump sum payment out of the trust, resulting in a win-win situation for all of the parties. I highly recommend Staubus/Randall for any trust disputes and trust modification actions."
"I have been a wealth management specialist and retirement plan consultant with the Dallas/Fort Worth financial community for over 20 years. I have engaged Ryan Randall to work with a number of my best clients over the years, including business owners, professionals and families. My clients always appreciate Ryan’s straightforward approach to estate planning, asset protection planning and business succession planning. He makes even the most sophisticated estate planning strategies understandable."