Do you have a will? The reality of life is that one day it will end. If you want to have any say over what happens to your financial assets and possessions after your death, you need to create a will. The process of creating your will and establishing other plans regarding the end of your life is referred to as estate planning.
Texas estate planning laws are complex. It is best to meet with an estate lawyer to create your will so that the document is legal and will be upheld so that your wishes are properly carried out. Here are some of the Texas estate planning laws you should know before you meet with a lawyer. It helps to come prepared.
Texas Wills Laws
The key elements of Texas estate planning laws in regards to wills refer to the age of the person dictating the will, witnesses, and acceptable ways that a person’s wishes for their will can be communicated.
The law according to Probate Code §57, et seq.:
- Age of Testator: 18 years or older or lawfully married or member of U.S. Armed Forces or auxiliaries or of the maritime service and of sound mind.
- Number of Witnesses: Attested by two or more credible witnesses above age of 14 subscribing names in presence of testator.
- Nuncupative (Oral Wills): Must have been made during last sickness, at residence or where he has resided for at least 10 days or more before date of will unless taken sick and dies away from home; when value is more than $30, must be proved by three credible witnesses that testator called upon someone to bear testimony that such is his will.
- Holographic Wills: Will wholly written in handwriting of testator needs no attesting witnesses and may be self-proved by testator attaching affidavit that it is his last will.
Texas Durable Power of Attorney Laws
In general, power of attorney documents give rights to another person to make decisions about the health care of the testator.
Health & Safety Code §166.151, et seq. Durable Power of Attorney for Health Care:
- Specific Powers, Life-Prolonging Acts: Decisions regarding consent to health care, treatment, service, or procedure to maintain, diagnose, or treat individual’s physical or mental condition. Agent may not consent to voluntary in-patient mental health services, convulsive treatment, psychosurgery, abortion, or neglect of principal through omission of care primarily intended to provide for comfort of principal.
- Legal Requirements for Durable Power of Attorney: (1) Signed; (2) in presence of 2 or more subscribing witnesses; (3) substantially statutory to form §135.015 and .016) and accompanied by disclosure statement. Principal may designate alternative agents.
- Revocation of Durable Power of Attorney: Effective indefinitely upon execution and delivery of document unless revoked. Revocable orally or in writing with specific intent to revoke or execution of subsequent power of attorney; divorce if spouse is agent. Effective upon receipt and notice to agent and health care provider.
- Validity from State-to-State: Durable power of attorney executed in another state valid if it complies with the law of that state or jurisdiction.
- If Physician Unwilling to Follow Durable Power of Attorney: Physician must notify agent immediately to arrange for transfer.
- Immunity for Attending Physician: Agent not liable for health care decision made in good faith. Physician not liable for acts or decisions made under durable power of attorney if done in good faith and does not constitute a failure to exercise due care in the provision of health care services.
Texas Living Wills Laws
In addition to a will and power of attorney documents, a living will is another part of Texas estate planning laws for how you express your wishes for your healthcare if you were to be incapacitated.
Health & Safety Code §166.031, et seq. Natural Death Act:
- Specific Powers, Life-Prolonging Acts: Medical procedure or intervention that uses mechanical or other artificial means to sustain, restore, or supplant a vital function and artificially postpone the moment of death of a patient in terminal condition whose death is imminent within a relatively short time without the procedure. Does not include administration of medication or performance of procedure to provide comfort or alleviate pain. May designate a person to make treatment decisions in the event declarant becomes comatose or otherwise incompetent.
- Legal Requirements for Valid Living Will: (1) Competent adult; (2) 2 witnesses; (3) may be oral with 2 witnesses and attending physician; (4) directive shall become a part of medical record of declarant (if oral, witnesses must sign medical records); (5) not operative for pregnant patients.
- Revocation of Living Will: Revocable at any time without regard to declarant’s mental state or competency. May be revoked by declarant or someone in presence destroying document; by signed and dated written revocation; orally stating intent to revoke. Effective when delivered or mailed to attending physician, or when physician notified of oral revocation. Directive effective until revoked. Desire of qualified competent patient supersedes directive.
- If Physician Unwilling to Follow Durable Power of Attorney: Unwilling physician must make reasonable effort to transfer patient to another physician.
- Immunity for Attending Physician. Immune from effects of revocation if not adequately notified. No criminal or civil liability for failing to effectuate a directive if there is no knowledge of it. By complying with legal directive, one does not commit act of criminally aiding suicide. No civil, criminal, or professional liability for acting in accordance with this Act unless negligent.
Feeling Overwhelmed? Kelly Legal Group Can Help You Plan Your Estate
Creating a will and other estate planning can seem like a lot to think about. The law is complex, which is why you need an Austin estate planning lawyer to help you establish a clear and complete estate plan. We will walk you through each step of the process, giving you time to think about these extremely important decisions and be sure of your wishes.