The clear majority of Americans are familiar with the concept of a Will, and while the majority of Americans understand the need for a Will, a large percentage never make one or consult a lawyer to draft one for them.
Wills can take a variety of forms and can be used for a variety of purposes. In general, however, a Will is used to spell out how a person wants their assets divided at the time of their death. It may also address the payment of debts, conditions upon certain gifts to certain individuals, etc. The Will should be drafted as part of an overall estate plan for the person or married couple considering the Will.
At its core, a Will has traditionally been the foundation of any estate plan. In addition to the Will, someone should consider powers of attorney, living Wills, trusts, life insurance, non-probate assets, etc., in their overall estate plan.
At the time that the Will is created, the Testator, the person signing the will, must
- Have the proper capacity (ability to understand his decisions)
- Have the intent to create a Will
- Sign and date the Will in the presence of two witnesses
- Never subsequently revoke the Will. If each of these elements is satisfied, then the Will is a valid document to control the disposition of the Testator’s estate.
Under a Will, the Testator can lay out a variety of methods for the division of his estate. For instance, she can leave gifts of certain dollar amounts to various individuals or institutions, or she can divide her estate into percentages or shares.
On-line, do-it-yourself wills are available to you on the Internet. Unfortunately, they are not always legally enforceable, and they do not fully take into account your individual needs and decisions. Wills need to be updated as tax laws or your personal situation changes. Getting a customized will drafted for you will not require extensive work on your part. There can, however, be great satisfaction in knowing that the future of your loved ones is protected through the execution of a valid will. Contact us today and let us begin planning for your future.
Family Limited Partnerships
A limited partnership is a type of business organization where control and the management responsibilities are held by general partners. The general partners often own a small minority of the business, while the limited partners (who have little or no control) own most of the corporate equity. A family limited partnership (FLP) operates the same way, except that the general and limited partners are related to each other.
If you have a large estate with numerous holdings, establishing an FLP could potentially protect your assets against future creditors. It could also save you substantial amounts in estate and gift taxes. A family limited partnership can also help protect the family’s assets against failed marriages and be of benefit in succession planning. A Kelley Clarke Law attorney should be consulted if you are considering establishing a family limited partnership. While there can be many benefits from establishing an FLP, it must be understood that they are not for everyone. Because a family limited partnership is set up as a business, they are scrutinized by the IRS. Hiring an attorney who is experienced in both estate planning and tax planning is very important. There are numerous pitfalls that you can encounter if you have not gotten advice from a lawyer who is knowledgeable in both fields. Contact us and let the experienced team at Kelley Clarke Law help you.
Medical Powers of Attorney
As your children grow, it’s important to protect them even when you’re not there to ensure their safety. At Kelley Clarke Law, we’ll assist you with all your medical authorizations to ensure your children have fast, effective medical treatment while under another person’s care. In addition, there are other situations where a medical release form could be used to ensure your child’s medical treatment, even if you were unavailable to give consent over the phone or in person. For example:
- Whenever your child is in the car with another driver.
- When participating in school and/or camp field trips.
- On sleepovers, either with the other parent, or with friends or extended relatives.
- During overnight retreats or lock-ins with youth groups, schools, or other organizations.
- At sporting events where your child could become injured.
- On vacations, if your child is invited to travel with another family.
At Kelley Clarke Law, we believe our clients need an advocate who understands your family and your goals. Contact us today. We are determined to provide the highest level of service, accountability and results to help you and your loved ones.
If you’re about to get married, you probably have a lot weighing on your mind. The attorneys at Kelley Clarke Law can guide you through the legal issues related to your marriage so that you can focus on moving forward with your life. A Premarital Agreement is an agreement between prospective spouses that is made in contemplation of marriage and is to be effective on marriage. Premarital (Prenuptial) Agreements involve complex concepts, and the effects can be far-reaching and financially life-altering.
Premarital Agreements may involve the rights and obligations of each of the parties in any of the property of either or both of them, as well as the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control the property of either or both of them.
Additionally, a Premarital Agreement may involve the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
One of the most important features of a Premarital Agreement is that it can modify or eliminate spousal support. Since there is no statutory limit to the amount of temporary spousal support that the court can order during the pendency of a divorce, this one provision alone can save tens of thousands of dollars or more in certain circumstances.
Premarital Agreements can involve the making of a will, trust, or any other arrangement necessary to carry out the provisions of the agreement. Also, the ownership rights in and disposition of the death benefit from a life insurance policy can be altered by a Premarital Agreement.
A Premarital Agreement can provide for the choice of law governing the construction of the agreement and many other matters involving the personal rights and obligations of the prospective spouses. Notwithstanding the broad range of matters that can be contracted for, however, a Premarital Agreement is not enforceable to the extent it purports to require any action in violation of public policy or any statute involving a criminal penalty.
Additionally, a Premarital Agreement cannot adversely affect child support.
Once the parties to a Premarital Agreement are married, the agreement can only be amended or revoked by a written agreement, signed by both parties. Just like the original agreement, there is no necessity for consideration in the amendment or revocation.
At Kelley Clarke Law, we understand that Premarital Agreements involve many complex legal concepts. We want to eliminate any risk or confusion and provide you with competent legal counsel. Contact us and let us answer any questions you might have.
Making decisions when you’re not under pressure and taking the time to make decisions regarding your funeral and/or burial can save your family a tremendous amount of stress–not to mention thousands of dollars when the time comes. A Disposition Authorization allows you to authorize your choice of cremation or burial as well as where you choose as your final resting place. At Kelley Clarke Law, we can assist you in relaying your wishes with your survivors and let them know where your original documents are filed so they can present them to the funeral home at time of death.
If you wish to name a specific person to direct your funeral arrangements, you may wish to execute a Designated Agent form. A Designated Agent is kind of like a power of attorney for funeral arrangements. This form is useful for those who may wish to have a non-family member, such as a good friend oversee their cremation or burial arrangements. This form may be particularly important if you have no living blood relatives. It may also be useful to designate an agent if you feel that your next-of-kin may not honor your wishes or you anticipate there may be family conflict over your choice of final arrangements. Contact us and let us help you with your decisions.
Revocable Living Trusts
You’ve worked hard and want to leave a legacy for your family. At Kelley Clarke Law, we want to make sure that your wishes are honored, and your family is protected. A trust is an arrangement in which property is governed and managed by one or more persons for the benefit of another and can be used to control and distribute property.
People often wonder if they should get a trust. A trust can control how, when, and why a child receives property and designate a trustee over a child’s finances. In addition, a trust can avoid probate.
The Living Trust is created during the lifetime of either an individual or a married couple, and the person(s) creating the Trust is known as the Grantor(s). At the time of the death of either one or both of the Grantors, the assets held in the Trust are distributed according to the provisions of the Trust agreement, rather than the provisions of a Will. As a result, if all of the Grantors’ assets are held in the Trust, then they can completely avoid the probate process.
Upon creation of the Trust, and continuing through the lives of the Grantors, all of the assets owned by the Grantors are transferred into the Trust. This includes real estate, as well as all personal property assets, such as bank accounts, stocks, brokerage accounts, etc. To accomplish the transfer into the Trust, new deeds must be prepared for real estate, new car titles must be issued, bank accounts must be re-styled to reflect the ownership by the Trust, and stock/brokerage accounts must be retitled in the name of the Trust.
Any assets not held in the Trust at the time of the death of either of the Grantors will be included in the probate estate of the Grantors and will be subject either to the provisions of their Wills or to the provisions of Texas law if they did not have Wills.
For a consultation regarding a Living Trust or any questions regarding your estate, contact us and let the Kelley Clarke Law team assist you today.
Durable Powers of Attorney
The Statutory Durable Power of Attorney allows you to designate someone to make financial decisions for you if you are unable to do so for yourself. It’s a form created by the Texas Legislature and is effective even after you are incapacitated. However, the Durable Power of Attorney ceases to be effective upon your death. The Durable Power of Attorney allows the designated agent to make a wide range of financial decisions, unless you have specifically restricted that authority. If unrestricted, the agent can pay bills, buy or sell real estate, buy or sell investments, pay your taxes, etc.
The biggest reason for creating powers of attorney is to avoid the necessity for a court-ordered guardianship if you suddenly become incapacitated. As you will see elsewhere on our site, Guardianships can be difficult, time consuming, and costly for all who are involved. By creating powers of attorney, you are designating someone to make medical and financial decisions for you when you are not capable of making those decisions. Because you have granted this right to those designated in the Powers, you can avoid the necessity for the guardianship. Contact us and let our team help you with this important decision.
Advanced Healthcare Directives/Living Wills
Most people do not want to think about death and dying, so they don’t … until they must. Unfortunately, that often means that families are left struggling with difficult decisions about important matters, such as whether Mom would like to be kept alive using a ventilator, or who should oversee managing Dad’s financial affairs, because Mom or Dad never made clear what they wanted for themselves.
Advance directives are important tools for anyone to have, because even the healthiest person could experience a sudden accident and not be able to speak for herself. But when you have a life-threatening illness, it’s particularly critical to make clear, in writing, what your wishes are should the time come when you can’t express them yourself.
There are two primary kinds of advance directives:
Living wills spell out your preferences about certain kinds of life-sustaining treatments. For example, you can indicate whether you do or do not want interventions such as cardiac resuscitation, tube feeding, and mechanical respiration.
A power of attorney directive names someone that you trust to act as your agent if you are unable to speak for yourself. If you want to choose one person to speak for you on health care matters, and someone else to make financial decisions, you can do separate financial and health care powers of attorney.
A power of attorney may be more flexible, since it’s impossible to predict all the medical decisions that might come up in the future and spell out your exact preferences for these situations. You should only assign someone power of attorney to make your medical decisions if you have someone you trust to carry out your wishes. Contact us today. A Kelley Clarke Law can assist you in creating the necessary documents to protect you and your loved ones.
Declarations of Guardian
Making decisions for your family when you’re gone can be a difficult process, and at Kelley Clarke Law, we want to help you make the best decisions. Invariably, all parents of minor children share the concern of who will care for their children in the event they die before the children are adults. In a Will, you can include a provision that designates the person(s) you want to care for your children in the event of your untimely death.
Likewise, you can designate someone to manage any money that you leave for your children. The Trust is created in your Will, but it does not become effective until you die. However, upon that death, the Trust is funded with the assets that you designated for your children to receive. Through this Trust option, you can designate that the Trust continue until a certain age of your children or for their lifetimes. When the Trust terminates, your children will receive the assets of the Trust outright.
However, prior to the termination date, the Trustee will have the ability to make distributions for your children’s health, support, education, and maintenance. This provides a mechanism for a responsible person to be able to make decisions for your children in the event you are not alive to do so. Choosing the correct persons can go a long way towards you feeling comfortable about your plans. Contact us at Kelley Clarke Law for assistance in deciding the proper guardian for your family.