Estate Planning Frequently Asked Questions

What is a living will?

A living will, also known as a medical power of attorney, appoints someone to speak for you when you cannot. It is one of the most important legal documents you can have. It is generally wise to prepare your living will before being hospitalized, especially because hospitalization may result from an emergency which leaves you temporarily unable to direct your care.

Your living will should be accompanied by a directive to physicians and family or surrogates, a HIPAA authorization, and a general power of attorney. These contingency planning documents are so essential for every Texan that The Garrett Law Firm maintains forms you can download from the Contingency Planning Documents page on this website. Please discuss them with your family and have your physician keep a signed copy with your medical records. Too often someone has signed these documents but no one knows where they are when they are needed.

Organ and tissue donation forms are available at www.shareyourlife.org/. A link to the Texas Department of Health Service's Out-of-Hospital Do-Not-Resuscitate Order is also provided for your convenience.

If I don't have a lot of money, why do I need estate planning?

The form of your assets has more to do with your need for estate and retirement planning than the amount. The words on the title to your home, your bank accounts and your life insurance policies should all be reviewed to ensure that ownership passes just as you wish. Complicated IRA, 401(k) and other retirement plan withdrawal rules and tax regulations should be studied to determine what to spend when, what to leave to your heirs and how to leave it to ensure that you and your family receive the greatest financial benefit. If you have minor or disabled children, you should name a guardian and arrange for their care. You probably also want to ensure that you have the best quality of care you can afford during disability, illness and old age. Reading and considering the helpful information contained in the attached article "Beyond Wills and Arrangements" will also assist in your planning.

Should I avoid probate?

Unlike some states, Texas does not have a particularly difficult or expensive probate system. A desire for privacy may be the strongest reason to avoid probate in Texas; probate proceedings, including the estate inventory, are public documents.

What is a Q-TIP trust?

"Q-TIP" stands for "qualified terminable interest property trust". A Q-TIP trust allows one spouse to grant the other income for life while letting the first spouse decide how the assets generating the income should pass after the surviving spouse dies. A Q-TIP trust is useful, for example, to provide income for life to the surviving spouse of a second marriage while ensuring that the assets ultimately pass to the children of the first marriage.

What is a special needs trust?

A special needs trust can be established for a person who has become disabled to let that person continue to receive government benefits but receive funds from the trust to pay for items which the government benefits do not cover.

What is a spendthrift trust?

A spendthrift trust is designed to protect the assets in trust from the beneficiary's creditors.