A living will is a vital document that ensures your healthcare wishes are respected during difficult times. It provides clear instructions for medical care if circumstances prevent you from communicating your preferences. By incorporating a living will into your estate plan, you can protect your autonomy, alleviate the burden on loved ones, and ensure your values guide your healthcare decisions.

Understanding Living Wills and Their Importance

Definition and Purpose of a Living Will

A living will is a legal document that communicates your medical treatment preferences if you're unable to express them yourself. While a last will and testament addresses the distribution of assets after death, a living will focuses on your care during life. This document specifies your desires regarding life-support measures and other vital health decisions, ensuring that your preferences are honored. It provides assurance that your wishes will be respected and eases the emotional strain on family members faced with tough medical choices. A living will transforms your values into actionable directives, giving voice to your priorities even when you cannot speak for yourself.

Legal Framework and Requirements

To ensure that a living will is legally binding, it must meet specific requirements, which vary by state. For example, in Texas, the document must be signed in the presence of two witnesses or be notarized to be valid. The living will also needs to clearly outline your treatment preferences, such as under which circumstances you would decline medical interventions. These steps ensure that your living will holds weight and avoids any ambiguity in its interpretation. Consulting a knowledgeable estate planning attorney is invaluable in preparing a thorough and legally compliant document. Professionals can guide you through the state-specific requirements to protect your wishes and give you confidence in your estate plan.

Components of a Comprehensive Living Will

Medical Treatment Preferences

A well-drafted living will allows you to outline specific medical treatments you would or would not want in certain situations. Examples include whether to use mechanical ventilators, feeding tubes, or other life-sustaining measures. You can also provide detailed pain management and palliative care guidance to ensure your comfort remains a priority. By defining these decisions, your living will eliminates guesswork for healthcare providers and loved ones. This clarity empowers you to stay in control of your medical care and ensures that treatments align with your values.

End-of-Life Decisions

Making end-of-life decisions is profoundly personal, and a living will ensures your voice is heard during this sensitive time. You may include a do-not-resuscitate (DNR) order, which directs medical staff not to attempt resuscitation if your heart stops. Additionally, you can outline your intentions for organ donation, making your wishes known well in advance. These directives serve as guiding principles for loved ones and healthcare teams, providing clarity during challenging moments. A living will helps ensure your priorities are respected while relieving family members of the emotional weight of decision-making.

Integrating a Living Will into Your Estate Plan

Coordination with Other Estate Planning Documents

A living will is most effective when combined with other estate planning tools, such as a durable power of attorney and a healthcare power of attorney. While the durable power of attorney addresses financial matters, the healthcare power of attorney appoints someone to make medical decisions on your behalf. Together, these documents create a strategy to manage both your financial and healthcare needs. Integrating these elements ensures your wishes are stated and upheld in every aspect of your life. For a fully balanced estate plan, coordinating these components with a trusted attorney's guidance is essential.

Review and Update Procedures

Your living will should remain current, reflecting any changes in your health preferences, family dynamics, or advancements in medical technology. Life events such as marriage, divorce, or the arrival of a child often necessitate updates to estate planning documents. Periodically reviewing and revising your living will ensure it aligns with your personal priorities and any changes in legal guidelines. The review process also offers an opportunity to clarify instructions, reducing the potential for confusion. Regular updates ensure that your estate plan remains a reliable source of guidance when it's needed most.

Benefits and Limitations of a Living Will

Advantages of Having a Living Will

A living will offers significant advantages by clearly conveying your preferences for medical treatment, no matter the circumstances. It provides peace of mind, knowing your wishes are documented and will be respected. Family members benefit from its guidance, as it minimizes disagreements and emotional distress during difficult times. By specifying medical directions, you retain control of your care and avoid procedures that conflict with your values. This document not only protects your autonomy but instills confidence that your medical team and loved ones can act in alignment with your wishes.

Potential Limitations and Challenges

While powerful, a living will cannot anticipate every possible medical scenario, so its contents must be detailed yet flexible. Healthcare providers may rely on your designated healthcare proxy to make decisions consistent with your values for situations not explicitly covered. Additionally, unclear or overly broad wording in a living will may create ambiguity, limiting its effectiveness in guiding treatment decisions. These challenges underscore the importance of appointing a healthcare agent to complement the directives in your living will. You can address these limitations and strengthen your overall estate strategy with thoughtful planning.

Practical Steps to Create and Implement a Living Will

Document Storage and Accessibility

To ensure your living will can be acted upon, sharing it with those who need access is vital. Copies should be provided to your healthcare proxy, family members, and primary care physician. You might also consider submitting it to your hospital or any facility where you receive care. Easily accessible documents reduce confusion and ensure your preferences are followed immediately. Proactive communication about the existence and location of your living will is key to its effectiveness.

Utilizing Online Resources and Tools

The internet offers a variety of resources to help individuals draft a living will, though caution is advised when using templates. State-specific platforms can provide guidance on legal requirements, but these should supplement—not replace—professional assistance. Consulting an attorney ensures your living will is tailored to your unique needs and adheres to the highest standards of clarity and compliance. Combining reliable online resources with expert advice creates a balanced approach to developing a strong living will. Together, these tools make estate planning more accessible while ensuring your document is comprehensive.

Choosing the Right Legal Assistance

Drafting a living will demands precision and knowledge of legal requirements, so choosing the right professional assistance is essential. An experienced estate planning attorney will ensure the document reflects your unique priorities and complies with applicable laws. They can also advise on integrating your living will with other estate tools to enhance its effectiveness. With the help of knowledgeable legal guidance, you can have confidence that your healthcare decisions are upheld. The team at Crain & Wooley in Plano, TX, specializes in creating tailor-made living wills that provide clarity and peace of mind.

Living Wills Attorneys in Plano, Texas

A living will is a crucial component of estate planning, offering clarity and direction for deeply personal healthcare decisions. It ensures your wishes are respected, providing both you and your loved ones with reassurance during challenging times. At Crain & Wooley in Plano, TX, we are committed to helping you craft a living will that reflects your values and meets all legal requirements. Our experienced attorneys specialize in creating customized estate plans to protect your rights and priorities. Connect with us today at (972) 945-1610 to secure your living will and gain confidence in your estate planning strategy. Let's work together to protect your peace of mind and future.

Types of Wills in Texas: Which Is Best for You?

Anyone who wishes to have control over the distribution of their assets and properties after their passing should have a will in place. Regardless of the size of your estate, having a will can help avoid potential disputes and ensure that your loved ones are taken care of according to your wishes.

However, choosing the right will for your Texas estate—not to mention your family and loved ones—can be a stressful ordeal for everyone involved. There are many types of wills to choose from in Texas, making it all the more important to select the most appropriate type of will when planning for your future.

Keep reading to learn more about the various types of wills available to Texans and their families.

What Is a Will?

A will is a legal document that sets forth an individual's wishes regarding the distribution of their property after death. Wills are a key component during the probate process, the court-supervised process to verify the authenticity of the will and approve it as the true last testament of the deceased.

The personal representative (“executor”) named in the will is given legal authority by the court to administer the estate. This includes tasks such as gathering the deceased's assets, paying debts or taxes, and distributing the remaining property as specified in the will.

Keep in mind that not all assets are subject to the probate process—only assets owned solely by the deceased usually go through probate. In most cases, jointly owned assets or those with designated beneficiaries, such as life insurance policies and retirement accounts, aren’t required to go through probate in Texas.

Although probate offers a standardized means to ensure the orderly distribution of assets, it can also be a lengthy and costly process, often lasting anywhere from several months to a year or longer. The efficiency of the probate process is typically dependent on unique factors, including the size and complexity of the estate, the efficiency of the executor, and whether there are any disputes over the will.

Types of Wills in Texas

There are various wills that Texans can choose from when planning their estate. State law recognizes several types of wills, each serving different purposes depending on your unique circumstances. These include:

• Holographic Wills – These are handwritten wills that are written and signed by the testator. Witnesses aren't required for holographic wills in Texas, but they must be entirely in the testator's handwriting.
• Simple Wills – This is the most common type of will. Simple wills are typically typewritten and can include provisions for asset distribution, appointing an executor, and guardianship.
• Wills with Testamentary Trusts – These wills establish a trust that comes into effect upon the testator's death, allowing for asset management and distribution to beneficiaries over time.
• Pour-Over Wills – These wills work in conjunction with living trusts, allowing assets not already in the trust to "pour over" into the trust upon the testator's death.
• Reciprocal Wills – Also known as "mirror wills," these are nearly identical wills made by spouses, leaving their assets to each other and then to the same beneficiaries.
• Joint Wills – This type of will is created and signed by multiple parties, often spouses, and is binding on all parties. It is less common due to its inflexibility.
• Contractual Wills – These wills are made as part of a contract between the testator and another party, such as a caregiver or a charitable organization.
• Electronic Wills – Texas allows for the creation of electronic wills, which are executed and stored electronically in compliance with specific legal requirements.
• Living Wills – Also known as advance directives, living wills express an individual's medical treatment preferences if they become incapacitated and cannot communicate their wishes.

Legal Requirements for a Valid Will in Texas

In Texas, specific legal requirements must be met to establish a valid will. The person making the will (“testator”) must be at least 18 years old, of sound mind, and under no undue influence or duress. The will must be written and signed by the testator or another person at the testator's direction and in their presence. It also must be attested by at least two credible witnesses over the age of 14 who sign the will in the testator's presence.

Do All Wills Have to Go Through Probate?

Probate is the legal process of administering a deceased person's estate, including validating the will (if there is one), identifying and inventorying assets, paying debts and taxes, and distributing the remaining assets to beneficiaries or heirs. While not every will is legally required to go through probate in Texas, the necessity for probate depends on the type of assets involved, their value, and how they are titled.

In Texas, some assets may pass outside of probate and directly to beneficiaries, bypassing the probate process. Generally, these assets include:

• Jointly Owned Assets – Assets held in joint tenancy with rights of survivorship or as community property with rights of survivorship will pass directly to the surviving joint owner.
• Assets with Beneficiary Designations – Certain assets, such as life insurance policies, retirement accounts (e.g., 401(k)s, IRAs), and payable-on-death (POD) or transfer-on-death (TOD) accounts, allow the account holder to designate beneficiaries. These assets go directly to the named beneficiaries upon the account holder's death.
• Assets in Living Trusts – Assets held in a revocable living trust generally avoid probate because the trust continues to exist after the grantor's death. The successor trustee can manage and distribute the assets according to the trust's terms.
• Small Estates – In Texas, estates with a total value of $75,000 or less (excluding homestead and exempt property) may qualify for a simplified probate procedure called “small estate affidavit.” This process is generally more straightforward and faster than regular probate.

If the decedent's estate includes assets that exceed the total value of $75,000, probate is likely required. During probate, the court oversees the administration of the estate to ensure the deceased person's debts are settled and their assets are distributed according to the terms of the will (or intestacy laws if there is no valid will in place).

It's imperative to consult with a trusted Texas probate attorney to understand how your assets will be distributed upon your passing and whether probate will be required. Proper estate planning can help Texans utilize strategies to minimize the assets to undergo probate and simplify the process for their loved ones following their death.

5 Advantages of Having a Will in Texas

Having a will can offer many advantages to Texans and their loved ones. Some common benefits of having a will in place include:

1. Enhanced control over your estate and assets. You decide who gets your assets and property.
2. The ability to protect any minor children. You can name a guardian for your minor children.
3. The power to appoint an executor. You can nominate a trusted person to manage your estate.
4. The ability to keep familial conflict to a minimum. By clearly stating your wishes, you can help prevent potential disputes among family members.
5. The opportunity to restore your peace of mind. Knowing that your affairs are in order can give both you and your loved ones peace of mind, closure, and clarity moving forward—no matter where life takes you.

Having a will is essential regardless of the stage of life you’re in. Understanding the different types of wills available can help you make an informed decision about what's best for you and your loved ones.

Compassionate Advocacy in Life’s Toughest Seasons

It can be challenging to prepare for a future without you in it. Still, it's essential for Texans to take the necessary legal steps to safeguard their estate and ensure their loved ones are cared for following their death. At Crain & Wooley, our exclusive focus on estate planning empowers our compassionate attorneys to serve Texas families throughout DFW, helping them put a plan in place to protect their assets and care for loved ones. From tax planning to retirement planning, our trusted advocates have the in-depth knowledge to ensure that your hard-earned assets and family members remain protected for many years to come.

It can be hard to plan for the future. Our compassionate lawyers can restore your peace of mind. Call (972) 945-1610 to schedule a consultation.

At Crain & Wooley, we instruct our clients to dust off their estate plan and review it once a year to make sure it correctly reflects their wishes. There are many life changes and scenarios where you will need to revoke your will and get a new plan in place. Here are just a few common ones:

1. Divorce – Although the Texas Estates Code states that any provisions for a spouse that you’d divorced before your death are voided, there are a lot of other considerations. Even if the end result is the same, there will be extra time and expense in getting the judge to “fix” the will’s provisions about your ex-spouse. Additionally, a professional estate planning attorney can ensure that your new wishes are carried out in both estate planning documents and in beneficiary designations of your assets.
2. Wishes change – A best case scenario is that your daughter, Janet, wins the lottery and you want to gracefully disinherit her and give your estate to the local animal shelter instead. (Good for Janet and the puppies!) There are a million other scenarios where your wishes change. Maybe your children were minors when you wrote your will, but they’re all grown up and now they’re ready to handle being your executor instead of your sister. Maybe you bought a lake house and want to make sure it stays in the family. Maybe you want to leave a fund specifically for your grandkids’ education. Whatever your wishes are, you have to make sure it’s clearly stated in writing. The courts can’t take “but what he meant to say was . . .” into consideration.
3. Executor dies or is unqualified – Your will should have someone named who you want to be in charge after you die. It also should have at least one backup in case that person predeceases you or is unqualified to serve. If any or all of the executors named in your will are no longer appropriate to serve for any reason, it will make probate a lot easier, faster, and cheaper if you update your will.
4. Children born or adopted – There are very complicated laws that handle what happens when there are no provisions in your will for one of your children, but your will was written before that child was born. Again, it’s best to update your will for the same reasons stated above regarding not relying on the court to adjust your will after your divorce: there is extra time and expense when making adjustments in the court. Depending on your specific family situation, a professional estate planning attorney can make sure that provisions for your children—or potential future children—are written with multiple scenarios in mind.

The absolute best first step in revoking your existing will is to work with a professional estate planning attorney to create a replacement plan. When your “Last Will and Testament” is executed, it literally means that it’s the last one you’ve written (even if you’ve previously created 20 different wills). A well written will should also have language in it reiterating that any previously written wills are revoked. Once we’ve helped you properly execute your new will or, we’ll also advise you to physically destroy your old documents as a triple-check on ensuring there is no confusion as to which will is correct. “Physically destroy” means throwing your old documents in a fire, putting them in a shredder, chaining them to a cinder block and throwing it in the lake, or whatever other way ensures that no one can present it in court.

Has life changed? Do you need to talk with someone about revoking or adjusting a current will? Contact us for a time to talk with one of our attorneys today. 

In Texas, a will written ENTIRELY in your own handwriting is called a holographic will. It is essential to understand that every single word of this type of Will must be written only in your handwriting. Texas courts have taken an approach that directs that when there is a handwritten Will, the court is to disregard all words not written in the person’s own handwriting. This means that the court would try to determine the Will’s intent by reading and interpreting only the portions of the will that were handwritten by the hand of the person themselves. 

It may not be hard to write down a few thoughts in your own handwriting, but what is difficult is to properly draft a Holographic Will that complies with all of the requirements of the law while also accomplishing your intent. Holographic wills are not recommended because there are many pitfalls to acting as your own attorney. Drafting a will without understanding the legal effect of each word and phrase that you include, or a word or phrase that you may leave out will cause unknown and unintended results. 

When you attempt to write your own Will without understanding the law and how your writing will be interpreted, there is the possibility that what is written may not legally be considered a Last Will and Testament. If the writing is not considered a legal Will, your estate will be distributed according to what the court decides instead of what you intended. There is a possibility that you will leave out important words and phrases such as wording that could shorten the probate process, remove requirements for bond, allow for quick sale of real estate, and much more. It is also possible that words that are used may create requirements for additional steps during the probate process such as proving that a number of specific gifts were distributed, including language that the court determines will require every person named to receive all the required legal notices under the law, or language that creates a requirement for official accountings to be submitted to the court that might not have otherwise been required. At the end of the day, you don’t know what you don’t know.

When you are attempting to accomplish something as crucial as stating your final wishes, hiring a qualified attorney can make the difference between leaving a legacy or leaving a disaster for the loved ones that survive you. Short cuts in estate planning may sound like a good idea at first, but the ramifications of short cut, like a holographic will, end up costing your estate a lot of time and money to correct. 

There is a lot of confusion surrounding two frequently used yet greatly misunderstood terms: Do Not Resuscitate Order (DNR) and Directive to Physicians (Living Will). Unfortunately, many of us use these terms interchangeably.

However, they are NOT the same “thing”. These documents may seem similar in nature, but their efficacy is vastly different. Understanding the difference and taking appropriate action is very important.

DIRECTIVE TO PHYSICIANS (AKA LIVING WILL)

A Directive to Physicians allows a person to indicate their future wishes should they be in a terminal condition and unable to communicate regarding further treatment. This document is sometimes called a Living Will but should not be confused with a Last Will and Testament.

This important document allows a person to state their desire, in advance, that their life not be prolonged with the use of artificial, life-sustaining procedures when their death is inevitable (i.e., no chance of recovery) and in the situation where the person is unable to communicate.

This document does not state that you do not want life-saving procedures when there is a chance that you will recover. This document prevents the type of situation that makes the news every few years where someone is declared brain-dead and/or having zero chance of recovery, but family and friends fight over whether or not to keep the person on life-sustaining machines. 

DO NOT RESUSCITATE (DNR) ORDER

Medical professionals will administer life-sustaining treatment when possible as their standard procedure. Some people may not want cardiopulmonary resuscitation (CPR) or other resuscitation procedures to be administered. If a person does not want those procedures performed, a Do Not Resuscitate (DNR) Order is required to direct medical professionals not to perform resuscitation procedures. 

The standard, in-hospital DNR is an order that instructs health care professionals not to attempt cardiopulmonary resuscitation on a patient whose circulatory or respiratory function ceases. (Health and Safety Code 166.201). This type of order is only valid if the patient’s attending physician issues the order, the order is dated, and the order complies with the requirements outlined in section 166.203 of the Health and Safety Code. 

However, not everyone is in a hospital when they decide they do not want resuscitation procedures to be administered. For example, a person may be in a long-term care facility and decide they do not want additional resuscitation procedures to be administered should their circulatory or respiratory function cease. In these instances, an Out-of-Hospital Do-Not-Resuscitate Order (OOH-DNR) is the appropriate document to indicate that a person wants to provide for the natural process of dying by preventing the use of artificial, life-sustaining measures. Procedures that can be prevented with an OOH-DNR include CPR, advanced airway management, artificial ventilation, defibrillation, transcutaneous cardiac pacing and other life-sustaining treatment specified by the Texas Board of Health.

Keep in mind that emergency medical professionals are trained to immediately perform all life-saving procedures. If they do not immediately know that a person has an OOH-DNR, they will still perform life-saving procedures and will not be held liable for acting if they have no knowledge of an OOH-DNR. As a result, the most effective way to give notice to emergency medical professionals is to wear an OOH-DNR identification device, as approved by the Texas Board of Health. A legally recognized bracelet indicating a person’s OOH-DNR immediately and conclusively informs medical personnel that a valid OOH-DNR has been executed. As an example, you can purchase a Texas approved medical device from American Medical Identifications, Inc. (https://www.americanmedical-id.com/).

As you can see, there is a significant difference between a Directive to Physicians and Do Not Resuscitate Order.  If you have any questions, contact us today!

Text messaging is a vital part of daily communication. We make appointments via text. We pay bills via text. We update loved ones via text.

The advent of and mass adoption of text messaging begs the question:

Is this text a valid will?

Arguably, the effort made behind it indicates that the person had mental capacity. The person clearly intended that the text communicate instructions on how to carry out wishes in the event of death. I could even argue that the digital signature of the text counts as a signature. However, the validity of this emoji will is far from the point.

There is SO much more to an estate plan than just leaving instructions for who gets what.

Who would oversee carrying out the instructions in this emoji will? What level of authority should that person have? What if grandma does not survive you? What if your spouse is disabled when you pass away? What if your children need a guardian? Who decides what money should be used for which education expenses for your child? What if you are just temporarily incapacitated? What if your sister tries to stop court proceedings on your emoji will?

These are all very important matters. Leaving unanswered questions in your will means that there will be added time and expense to get them answered by the court. In my experience, will templates found online (and even online “legal”, self-help websites where you pay a nominal fee) fail to address these important questions. An online will preparation site will probably be able to help you create a valid will, but I have yet to see an online template address all important questions. 

When you work with an attorney to create your custom estate plan, you can share all your family drama, all your hopes and fears and all your financial concerns. After your personal consultation, an attorney will use experience and education to make sure all questions – and the ones that you never thought to ask – are answered.

If you would like to talk with an attorney here are Crain & Wooley, comment below or send us an email.