Wills vs. Trusts: Avoiding Probate, Funding Your Trust, and Essential POAs (Texas Estate Planning)

In this episode of HERpresence, attorney Amber discusses how women often lead estate planning to protect children, assets, and peace of mind, and explains where to start when clients feel stressed and unsure. She breaks down key differences between wills and revocable living trusts, emphasizing that wills typically go through public probate, while properly funded trusts can avoid probate, stay private, and allow successor trustees immediate access to assets. Amber shares a cautionary story about an unfunded trust missing a pour-over will that led to intestate probate, and describes probate timelines and costs, including a South Carolina example. The conversation covers trust funding, beneficiary designations, planning for minors, guardianship nominations, essential documents like medical and financial powers of attorney and advance directives, handling tangible personal property and digital assets, limitations of online forms, and the importance of reviewing plans about every three years.
00:00 Women Carry The Load
01:12 Getting Started With Planning
02:45 Missing Pour Over Will
04:56 Wills Versus Trusts
10:58 Probate Costs And Delays
15:34 How Trusts Avoid Probate
18:47 Funding The Trust
20:07 Designing Trusts For Kids
23:19 Guardianship Without A Will
25:13 Guardianship In Wills
26:06 Meet Attorney Amber
28:25 Why People Delay Planning
31:57 Single Trust Planning
33:22 When To Update Plans
35:10 Powers Of Attorney
40:50 Online Will Services
42:31 Costs And Value
47:20 Heirlooms And Digital Assets
50:46 Two Steps To Do
52:16 Final Thoughts And Wrap

Transcript

SPEAKER_01 0:00

The worst thing is to have nothing. Now, probate, let me step back, is essentially one of my partners likes to say, um, it's essentially a lawsuit against yourself. Um sometimes it's more important for those that don't have a lot in them to absolutely make sure it is protected. So it is there for their children if something would happen to them. It's just better to do it today.

SPEAKER_02 0:26

It's better to do it now as opposed to after death or when something happens to you and you can't make the decisions anymore. And it's also better to do it now than once you find out something like a diagnosis and now you're in a mad scramble. I should say, um, and the caregiving load of family. Usually it's fan, it's usually it's women, I would say, right? Um and so talking about trust and deeds, POAs, those kind of things, what's happening is we're trying to protect our children. Um, we're trying to protect our assets, we're trying to have uh, we want to do what our loved ones want, right? We're trying to take protect the our peace of mind, even, right? Um so with this, Amber, if you could tell us, tell me what's your perspective on that? And I know you have like these stories. You were telling us before we started that you have these stories, but what's your perspective on on that? If you were talking to someone, someone came into your office and they really didn't know where to start, what would you say to them?

SPEAKER_01 2:05

So to the point of women carrying the the bag, the yeah, the the bag carry. Yeah, it comes to that, yeah. But um, I I see it a lot. A lot of times it is women that are that are um spearheading the effort to get their decks in a row as far as um to have an estate plan in place. Uh it's not always the woman, but um, but it it often is. And the interesting thing there is that a lot of times they come in kind of riled up and sort of stressy and just like, I don't really know what I need to do, but I need to do something. Right. You know, and then just having a plan and and a path forward, just you can see they're relieved and that that they're on their way to to having their peace of mind back. To uh, so many people are like, this has been on my list for years, and we just kept pushing it off and blah, blah, blah. And they're just relieved when they finally do get something in place.

SPEAKER_02 3:15

So many people uh don't realize that they're missing this one document. What would that document be? You'll probably say it's not one, but so many, so many people don't realize that one they're missing this this one document and it could cost their family everything. What would that one document be? Or maybe many.

SPEAKER_01 3:40

Yeah, it depends on the scenario. Um it really depends. It depends on the scenario. I've seen people who think they have a trust plan in place, and so I'll tell a story. Let's talk about that. Yeah, sacrifice. Um so I have I've had a client come in and he was really frustrated, very, very frustrated. He was the trustee of his mom's trust. And the problem was, and we can get into this more later because it's like one of the huge important things about having an estate plan, um, and particularly more specifically, a trust plan, trust-based plan, is the funding of the trust, meaning the accounts, everything is directed towards the trust so that the assets are in the trust and not outside of. But but in this particular instance, he was the trustee, but his mom, and I'm assuming that counsel wasn't very good because nothing was funded to the trust. So it was this empty trust. There was nothing in it. And there, and talk about a document that was missing, a pour over will. When you that that is kind of a catch-all. If you have a trust, you also need to have a pour over will for something that if something isn't aligned to the trust, if it's not um in the trust per se, and it falls outside of the trust, that document has to go through probate still. And, or excuse me, that asset has to go through probate. Now, since nothing was funded, everything should have gone through probate, but there was no pour over will. So they were in the middle of this intestate probate, which means you're dying with no estate plan. So whatever this woman paid for this estate plan, it was missing that crucial document. It was missing the follow-through because nothing was funded to it. But if there was a pour over will, at least it would have the design of the trust would have held up after you went through probate with the pour over will. So it got dumped into the trust. So the trust literally had no function. Um, and they were going through the worst type of probate because there was no pour over will. So when you say one document missing, that's definitely one circumstance that that just like screams that.

SPEAKER_03 5:57

Wow.

SPEAKER_00 5:59

So it's almost like we need to kind of back up a little bit because um just looking at some of the statistics around wills and trust, that um I was just looking at a statistic that said uh 13% of people actually have a trust and 24% say that they have a will. And this was taken in 2025. What is the major difference when we're talking about wills and trusts? What's the difference?

SPEAKER_01 6:31

And estate planning.

SPEAKER_00 6:32

Yeah.

SPEAKER_01 6:33

So trusts and wills are all vehicles or tools within estate planning. We'll say that to begin with. Um, but another important point is that there are tons of different types of trusts, but the most common one that people are thinking about is what's called a revocable living trust. Okay. That's something that is completely revocable, amendable, changeable, whatnot, until the death of the grantors. Um, the the second, so if it's a married couple plan, you know, planning together and they have a revocable living trust, it's completely uh changeable, revocable until the surviving spouse dies. Okay. So let me just say that. Um, and when people say I have a trust, that's tip, you know, unless you're talking about really advanced estate planning techniques, that it's typically the revocable living trust that they're talking about. Um, and like I said, if you have that, you should have a will also. You should have what's called a pour over will, like pouring liquid. Yes. Um, but also I think I'm I'm not sure exactly how accurate the statistics are because a lot of people don't know the difference between a will and a trust. And they might say they have a trust, and maybe they have a will, but it maybe it has testamentary trust verbiage in it, which means that after it goes through probate, it creates a trust. But that doesn't mean it's a trust right now. So it's it that's really kind of interesting. But um, from a high level, uh let me step back. The worst thing is to have nothing. So if you if you have even a will that you downloaded from the internet 20 years ago, if the internet was around 20 years ago, it's about, then that would be better than nothing. I mean, potentially better than nothing.

SPEAKER_02 8:28

But so okay, because based on your question, because I came to y'all originally um wanting just a will, we wanted to just make sure the will. We were oblivious of all this other stuff. So, like you were asking the difference between the will and the trust. That's when you guys began to tell me about the difference. Like you gave me this education. So glad. So you if you have you said at least have a will, but if I just have a will and not the trust and all this kind of stuff, if something happens, then what happens? If something happens to me, you have to go through probate. I mean anyway, still. A will is not gonna keep you from that.

SPEAKER_01 9:09

No, no, a a will, all that it well, not all that it does, but basically what it does is it puts your wishes for after probate, how you want things distributed. So if you are in test state, you you end up dying in test state, meaning no will, no state plan at all, then your wishes aren't documented. But that's not to say, but the state of Texas has will tell you how it's gonna go.

SPEAKER_02 9:37

So no will, no anything. If you go, you pass the state of Texas, and it depends on the state you're in. I know we have many states watching, but in the state of Texas, what happens?

SPEAKER_01 9:49

They go there there is a set, there's set laws and a path of distribution of assets, generally speaking. So it would, it would start with like if I if I died, it would start with then my spouse gets certain portions depending on on community property and type of property. Um, and then my children. And if I didn't have any children, then it goes to like your parent level. If they're not around, it goes to your sibling level. If you have three siblings and one of them is gone, then um the third that would have gone to that sibling goes to their kids. Like there's this whole structure of what would happen to your property if you die without a will. And that that means it may or may not be your wishes.

SPEAKER_02 10:35

And that's a simple case, right? That's that's just a simple case. With, you know, my family, we are a blended family. So now it's not just Kai and Joshua, it's all our all of my babies, all of our, even our my bonus babies that are involved, and that can affect some things.

SPEAKER_01 10:54

And so it can get very, very complex and complicated when you have blended families. No, what's what's a living will? Okay, that's actually an um advanced health care directive. Okay. That's that's the situation. It's a legal document, but it's it controls the situation that if you have a terminal irreversible condition and you're on life support, do you want to stay on life support or pull the plug? That is what's called a living will. Is is that the document that controls that scenario?

SPEAKER_02 11:27

Okay, so you're talking about the will. So if you have your will, yeah, but then you're saying there's some other things.

SPEAKER_01 11:34

Some very simple um scenarios. If you're you have a parent that dies and you're a joint owner on all of their accounts, you live in the home with them, you're, you know, it's the home is if it was in your name, you know, if there's nothing to needed to get title out of somebody's name, that's that's um, you could avoid probate. Now, probate, let me step back, is essentially one of my partners likes to say, um, it's essentially a lawsuit against yourself. And it is because your state is paying for it. And and what it does is it starts a statutory period of time of notice to everybody that that you passed away. And then in Texas is 120 days that the estate needs that period of time when people can make claims against your state. So you have to like go through the whole process of like um publishing the notice, and then creditors can make claims again and during which time fraud can happen and all this. And it's a public proceeding too. Your wills are like public what are public um knowledge. Yeah, you might have to pay a filing fee or something to see it, but they are they are out there. What? And so everybody can see how you want things to be distributed. It's a very public situation. Trusts are not, they are private. So that's why you need a trust. That's one of the a will and a trust. Okay. That's one of um the benefits of having a trust is that you can avoid probate. But with the will, um, so let me back up. There are scenarios where somebody can have a will-based plan and they can avoid probate, but that's few and far between. Um, you would have to have, you know, make sure all your beneficiary, like pay on death beneficiary designations are as you want them on your on your accounts. And if you have you can have certain kind of deeds on your home that upon your death, it immediately transfers to someone else and and that type of thing. But um, but the whole purpose of creating a will is with the understanding that it has to go through probate. Um, but in talk about probate in Texas, Texas is what they call a um probate-friendly state. And that's only that's because essentially the statutory period of time um for the estate to be open for to make claims against is 120 days. Uh other states are a lot longer. I can tell you, uh, South Carolina is like eight months. So 120 days is what, four months? So it's twice as long. Um, I have a story about that. Um my aunt died a little over a year ago. I think it was a year in March. So her and my uncle owned a home in South Carolina. So my uncle, in the middle of, you know, grieving and everything, but he started the statutory, he started the probate process to get my aunt's name off the home so that he could sell it or whatnot. Well, it's like I said, it's it's a an eight eight-month-long process there. Um, he dies six months later, something, something around there. And then um my cousins, so when I went to his funeral, I had three cousins who don't live in the state, um, who had a really crappy year, right? Because they lost both of their parents. They still had to wait two months or so until the probate for my aunt was finished and the house was in my uncle's name. And then they had to start the proceeding for again. All over again. So they can't sell the home. They can't like, but but more importantly, in my perspective, they can't move on. Right. You know, they're just stagnant. So they're paying a mortgage or paying the upkeep on this property that just sits there for how long? Just now it's been it's been, I guess, you know, over a year since it was in March. So just now they're able to like put the house on the market. And meanwhile, yeah, you know, just they couldn't move on.

SPEAKER_00 15:58

Wow. So the one of the things you said first is have something. Because many people don't have anything. Yes. But if you do have a will, understand that it has to go through probate, which can be depending upon your state, uh a lengthy amount of time.

SPEAKER_01 16:16

Lengthy amount of time and and expense. Like in in Texas, I I mean, on average, for a very simple probate, it's about five thousand dollars and and stress. And a lot of people that, you know, that again can't, they're in the middle of grieving and they can't they can't move on.

SPEAKER_02 16:36

So and then so then the trust, one of the other things that a trust does is protect you from that time period or you okay, a trust, so it's not technically a separate legal entity in Texas.

SPEAKER_01 16:52

You don't have to register it with a secretary of state or pay separate taxes on it or anything like that. But if you think of it like another person, legal entity, if you think of it like that, it's helpful. So not necessarily a person, and I'll tell you why, but more of like a legal entity. Okay, because there's so there's like three parties with a trust there's the grantors, there's the trustees, and there's the beneficiaries. Okay. Okay. When you create a trust, you're all three parts. You're all three parties. You're the grantors, it's your assets, you're managing it as trustee for your own benefit. So you're all three parties.

SPEAKER_04 17:28

Okay.

SPEAKER_01 17:29

And you can change it, you can move things in and out of the trust, blah, blah, blah. And but like then the home, you move in to the name of the trust. And now, like on the deed, it will say, um, Andrea, trustee or her successors and interest of the Wrimley Family Trust, dated, blah, blah, blah. And so when Andrea passes away, her successor and interest, the next trustee, immediately has access to it because it's not her as an individual named on it. And that's how it works. Like a trust, if if it's a legal entity, it doesn't die. Right? It doesn't, so there's nobody's name to get off title ever. And so you skip any need to go through probate and transfer title. Does that make sense? Yeah.

SPEAKER_00 18:16

So you can put everything under the trust, vehicles.

SPEAKER_01 18:20

Yeah. You assign all your tangible personal property to the trust, you, the the home, any rural property, any mineral rights, and and it's all any businesses, any land, any businesses. Yeah.

SPEAKER_02 18:34

Investment properties, yeah.

SPEAKER_01 18:36

You would link like a business or your your interest in the business um through the operating agreement of the business, you would link that to your trust. Wow. Yeah. Wow. So um, so you skip the need whatsoever of having to get a person's name off of a title for anything. And then and there's no notice to anybody that anybody died or anything like that. And another one of the best things, it's all private. There's nothing that gets published on it. There, like the trust itself is private. The only thing bank accounts need to see, or banks or financial institutions at all need to see, is what's called a certification of trust, which is a page and a half or two-page document, which just has the main important things about the trust, the name of the trust, the names of the initial trustees, the names of the successor trustees, and that's it. I mean, some other little information, but but for the most part, that's the only thing that anyone needs to see. So how it's distributed, how you know everything else is all private.

SPEAKER_00 19:40

And you said that you avoid probate if you have the trust.

unknown 19:45

Okay.

SPEAKER_01 19:46

Yeah, if it's funded, if it's funded properly. Yeah.

SPEAKER_00 19:50

Can we talk about the funding the trust? So yeah. Okay. So what does that look like? Explain that.

SPEAKER_01 19:56

So, like cash accounts, um, checkings and savings accounts, money market accounts, that type of thing, they are just retitled in the name of the trust. So now who's you're accessing them as trustee of the trust. And then when you're gone, whoever's the successor trustee, they are now the they have access to it by virtue of being the trustee. So in that way, all of those accounts are always so they're they're aligned, is is the word that we like to use. Either you retitle it in the name of the trust, or um certain accounts, uh, and it's it depends on the institution, how what their preference is, because again, you it goes back to like what is their policy, what is their whatever. The um they sometimes don't like to allow retitling in the name of the trust. So what it would be is you designate the trust as the pay-and-death beneficiary. So, so in that way it's lined. And because it's aligned, excuse me, um, because pay on death beneficiary that goes outside of a will or outside of a trust. That would go first. And so if the pay and death beneficiary goes to the trust, then then it's aligned in that way.

SPEAKER_02 21:11

What if how you the way you want to set it up is um the person that gets it is too young at the time. What do you do in that situation?

SPEAKER_01 21:22

Wonderful thing with the trust is you get to um you design it however you want. It's it's really super fun. That you it's it's not like things have to go outright. Um you can't legally inherit if you're under 18. And then even if you are 18 as a parent, do you want your kid to get a big lump sum of money at age 18? I don't think that's very healthy. That's in in a lot of scenarios, you know, so maybe some super mature people could handle it. But yeah, um, you can design it however you want. Um, I can tell you personally, I'll tell you how I have my trust. So uh we have four kids. So their ages are 13, 15, 16, 18. So, you know, they're they're not not um tiny, but they're not, you know, of age, all of them certainly. So the way that we designed ours is we have it's something um called a common trust, where any funds, if something happened to my husband and I, it all stays in one big pot, basically. And it's used for the benefit of all the kids in generally speaking. There's no primary beneficiary or just it it can be used in an equitable but not equal way. So it's kind of how we parent our kids in general. If one kid needs braces, I'm not like, okay, that's $8,000. What's $8,000 that this kid needs and this one and this one? No, it's just like you you do what they need and what's fair, and it's not right all completely equal, but it's equitable. So then when my youngest reaches 18, what I have is that it separates into four separate trusts and it stays in trust. Um, and it can be used by the trustee for the respective beneficiaries uh health, education, maintenance, and support. So that could include um at you know, college and things like that, but they don't have a right to withdraw any of it. They would they have a right to withdraw from their separate trust 25% when they reach 25, 25 at 30, 25 at 35, and 40. Um, that's how I have it now because I don't know how responsible they're gonna be and and what their you know, their path looks like. So, and and honestly, it's not gonna be a ton of money. And they need to, they need to be focused on their own lives, you know, figuring out how to support themselves, do all this, not getting some good amount of money from me and from my husband and I, but those funds can stay invested and and and grow, and maybe they'll they'll have it'll be there for it, can always be used for the health, education, maintenance, and support. It's just their ability to pull out or withdraw some of it that's different. But, anyways, that's that's how I have mine. Other people have like it could be totally different.

SPEAKER_03 24:18

Yeah, that's good. Ours is kind of different. Did you have a question? Well, mine was about um, it is still about the children. So if a parent has not established um a guardian in the will, how does the state look at who raises the children? That's good.

SPEAKER_01 24:39

Well that's it depends on the situation of what happens to what happened to the parents where they were at the time. If something parent, yeah, if something happened to um uh a single parent or the or the both of them, and they're it was a car accident or something and there's no family nearby, then that's when foster care comes in it. Oh my god, you know, like so not ideal, you know. The that but that's that's how that would go. Um, but it wouldn't necessarily fall to a family member either. So it just depends. That's the scary part.

SPEAKER_02 25:20

It's like I don't know. So if I if if you die tonight and you didn't have anything in place, who would raise your kids? That part.

SPEAKER_01 25:32

Yeah, so so it just it really depends on where they are at the time. Is there a family member that could step in and then go try to get guardianship of them? And if it's a a safe scenario, then potentially the the kids could stay with that person, but they'd have to go through the legal proceeding to get to be declared the guardian. Meanwhile.

SPEAKER_03 25:53

And that still puts them into possibly a foster care situation.

SPEAKER_01 25:56

Possibly. It really depends on on the jurisdiction. It depends on so many different things. Yeah. I mean, my my husband and and sons, they're like, Can't you just give us an answer on so many things? And I was like, Yeah, the answer is it depends. Like it's because it's very, very fact specific. But you can create something to bring out that yeah. Um nomination of of yeah, guardian, short-term guardians and and longer-term guardians for for your children, certainly. Yeah, you can put that in place, and that would that gives you a huge say in what happens when you're gone.

SPEAKER_00 26:33

And you can designate that in the will and then that is immediately followed.

SPEAKER_01 26:39

Not no, they still, so if it says that, they would still have to go through the legal proceeding in court to be declared the guardian. But if you have it in writing, who you want it to be, that is very strong. Okay. Um I don't, I wouldn't necessarily say always followed by the judge, but it's it gives you a huge say in in what happens and what you believe is in their best interest.

SPEAKER_02 27:09

So tell us about Amber, just who you are, what the what you represent, all those kind of things. Uh yeah, tell our listeners all about that.

SPEAKER_01 27:20

What's your story? What's my story? Oh gosh. Um well, I'm I'm an attorney. I've been an attorney over going on 16 years. Um, I started my practice in the intellectual property area. I'm actually a registered patent attorney.

SPEAKER_02 27:37

Um, my and we'll be talking about that in the next episode, by the way.

SPEAKER_01 27:41

There you go. Um, yeah, my undergrad was chemical engineering. Um, I did more the science base and then decided to go to law school. Um but so that's where I started my practice. And then after being in some different firms, uh, I started my own firm and branched into more like I do a lot of other IP as well, trademarks, and and I've I worked for a number of years with the legal services firm. I had my own IP clients, and then I did different merger and acquisition projects, some big MA projects was really fun. Um so focused on kind of just some some general, a lot of different uh contract negotiations, buy-sell agreements, a lot of um business formation, all that. I worked with a number of startups, which was really exciting and kind of fun. But uh about five years ago, I started incorporating estate planning into my my practice. And and to be honest, that's the majority of what I do now. I still have a lot of IP and business clients, but um it's really super fun how you can link your business interests with your family estate plan. And that's actually a really important aspect of things that a lot of people don't know about or don't think about. And um anyway, so so on that's kind of me professionally. Uh on a personal note, I'm married to a fantastic man and we have four kids. So wow, wow.

SPEAKER_02 29:15

Okay, and you're in your uh practices here in San Antonio, it's in New Braunfel. I mean, New Brothel, sorry, New Brothel's. Okay, alrighty. So you I know you had a question.

SPEAKER_00 29:26

Uh I have a few, but I'll start with this. So if our listeners, they're watching this podcast and maybe they have nothing in place. Um, and a lot of times people procrastinate and they think I have time to do this, we'll get to it. And other times it's about cost. They don't feel like they have either the assets to do a trust or a will, or maybe they just feel I don't have the funding. What is your recommendation? I know I just said a bunch of scenarios, but what is your recommendation?

SPEAKER_01 30:02

I I think it's super important and it's it's very true. It's definitely something that people push off and push off for a long time. Um, no matter how sophisticated or you know, business-oriented or educated people are, um, it's often something that gets pushed off. And many times it's there people are going through uh probate for a parent or saw a friend or or someone go through a really messy probate situation, and they realize, okay, this this is we we gotta get something in order. So that's one scenario I see a lot. People come in with elderly parents and they're like, oh, and we don't have anything in place, that type of thing. Um another scenario is they got some scary diagnoses, you know, that's that's um very common as well. And they all of a sudden they see the end coming, you know, and it uh and it's time to really make prioritize estate planning and make sure things are taken care of for their children as they as they wish. Um the a lot like another point that you said was that a lot of people, and it's very true, I hear, well, I just have my my situation is really simple. It's like they are the it's simple, it's straightforward, this and that. Um, and and or I don't have very much, I don't have very many assets, so like I don't, I just need a will, I don't need a trust, you know, that type of thing. Um sometimes it's more important for those that don't have a lot to well to absolutely make sure it is protected, so it is there for their children if something would happen to them. Um because you you just never, you just never know. So it's it's very fact-specific. Everybody's scenario is very different, but it's it is laughable almost how often people are like, oh, it's real simple. I just have this and this, and and then you you like you talk for a minute and then you just cavern. It's not all that simple. Like if you want certain things to protect it, yeah, to protect it exactly. And to like you pointed out, the blended family scenario is so common, even if it's not a blended family scenario, it um it can get messy quick. And not only are you protecting assets for your kids, but even kind of protecting the relationship between your kids because when you when you mix grief and finances, oh my god, that's like atomic level absolutely emotion, right?

SPEAKER_03 32:58

Yeah, the emotion, yes, yes. So I have a question can a single person have a will and a trustee?

SPEAKER_01 33:06

Absolutely, yeah. We we have um many, many, I have many, many clients that well first off, they should have a trust or a will, at least. Um, but a lot of people have plan individually, they have an their own trust, and then they they get married, but they still have portions of their estate that are that are controlled by their their trust that they've already set up. And one of the key things is to have the type of estate plan that can grow with you, you know, that with a uh living trust, you can always constantly align things to it as you go along. You can change the designations of who successor trustees are, all this kind of stuff. It it doesn't you you can operate just like normal. So, like if you buy a home, you just don't buy it in your own name. You buy it in the name of the trust. You can sell property, move like it just it's such a cool vehicle to to of protection for you that it just is is um great. But yes, for sure, individual people all the time, single people have have uh trusts and an estate plan.

SPEAKER_03 34:25

So if I have a will, I have a trust, um, do I need to update it often or it's been signed and we're good to go? And 20 years later we're still good to go, or do we need to update it quite often?

SPEAKER_01 34:42

I recommend that that at least every we know that conversation, we had that conversation. Um, at least every three years, I recommend that you think about it closely. Um, I'm not saying anything necessarily needs to be updated, but with how you have things organized, like I shared how I have things in trust for my children. Um, well, down the road, they may be older than those ages, or there may be situations that where I don't feel like I need to keep things in in trust for that long because they're they've turned out really well and they're responsible and and whatnot. Um, or that certain people that I've designated as successor trustees or you know, agents in some kind of um situation or not, maybe they've passed away or they're they're just not the ideal pick anymore. Maybe I have a relationship with a sibling that is not nearly as close as it used to be. And so you don't really want that person to be in that position. So, so I I recommend you think about it, at least look through it and see if if it still meets, it still does what you want it to do. You know, and as like I said, with a a um with trusts and aligning all the assets to the trust, there may be like some, maybe you got some new bank account and you forgot to put it in the name of the trust. So just like constantly reevaluating if it's still gonna do for you what you want.

SPEAKER_02 36:12

Is it still gonna What is POA? What does that have to do with anything? Power of attorneys and the different types um medical. Medical and there's financial and what is that? And how is that connected?

SPEAKER_01 36:27

So powers of attorney um are only effective while you're alive. What it does is it essentially essentially allows another person to stand in your shoes and make decisions as if they were you. So if you're dead, they're not making any decisions. It a lot of people um That's good to know. Yeah, a lot of people think of powers of attorney as, well, after I'm gone, my power of attorney can do this. Well, that's not true. Like they're they're they're ineffective once somebody passes away. But there is a statutory, durable power of attorney, and that's for legal and finance purpose. Um, they can be really general. There's there's all these different powers you can give an agent under a power of attorney. You can give them uh control over like real estate, real property transactions, or financing uh situations, stock trades. Um, I mean, just like all the things, insurance, matters, retirement, like all these different powers that you can give them. Um sometimes you have limited powers of attorney because maybe you're traveling for work and your husband's closing on a new house. And so you want to give him the power of attorney to act for you in the purchase of or sale of that one property. So sometimes you can have like limited um powers of attorney, but uh the recommendation is to you can have a limited one in for certain circumstances, but to have a general power of attorney, especially as as people are getting older, that if something happens to you, so if you get incapacitated, someone needs to have the power over your accounts to be able to maybe pay for your treatment or pay for, you know, that type of thing. Um but so that's just like the legal finance power of attorney. Um, there's the medical power of attorney. So that's for someone to make decisions over your person or your body. That's what a medical power of attorney is for. Um, but again, if you think if you got hit by a truck and so you have these severe medical injuries, you need a medical power of attorney for someone to tell the doctor, yes, do this surgery or no, do this one, you know, that. But you also need a financial power of attorney so that they have access to the money, the money to be able to pay for your care or to be able to support your kids and like to be able to pay for that type of thing. So even though it's a medical situation that maybe caused your incapacity, you need to have both, right? You need a medical and a and a statutory durable power of attorney. So a comprehensive estate plan, if you had a trust-based plan, it would be the revocable living trust, a poor over will, which basically says dump it in the trust. And then you have durable, statutory durable uh power of attorney for legal finance purposes. You have a medical power of attorney for to over your person or your body.

SPEAKER_02 39:32

Um durable, I mean not durables. What do they call? Not what do they call it? Directives, like directives, sorry, I don't know why, because you said to durable, but directives, and that's a trend.

SPEAKER_01 39:44

Is is um basically a statement or declaration by you saying if I have a terminal irreversible condition and I'm on life support, do you want to stay on life support or do you want to pull the plug? It's essentially the pull the plug situation. Um, that's another important legal document. Um, there's something else called declaration of guardian for, and that's a guardian not for children, but for yourself. And that can be a really important document to have in place too. Um let me, so like for a somebody that has dementia, maybe, and sometimes a doctor's office might say someone is making so many decisions for this other person that it really exceeds the scope of a medical power of attorney that it's more of a guardianship issue. So if somebody said that, then they might say, okay, so you need to go and get declared guardian over your mom. Well, this is a document you saying, if in the future someone says I need a guardian, this is who I want it to be. Um that's good. Yeah. So it, whether or not that that's good enough for the doctor's office, if if they see, say, um, okay, we want you to go, you know, we feel like you need to go get declared guardian, but you have a declaration of guardian from that person that says, this is who I want it to be. And if it's the same person as the medical power of attorney, then a lot of them, because of CYA for the doctor's offices, they're just concerned about liability. But if, you know, having that combination, they might just be like, okay, never mind. Like, I feel comfortable with this to allow you to continue making decisions. Because if you went to court with this document from your mom saying, I want you to be uh declared my guardian, then the judge most likely would be like, okay. So, anyways, a lot of it is just about in in that respect, in that scenario, is about the doctor's offices, you know, needing to protect their liability.

SPEAKER_00 41:52

But so we see a lot um when you're online and different advertisements for legal zoom and trustandwheels.com and all these different online entities. What are your thoughts on some of these entities online if you're trying to set up a will trust? Are they legitimate?

SPEAKER_01 42:12

Um, I d it's not necessarily that they're not legitimate. They might not really truly a lot of them are forms that you fill in, right? For my understanding. And they don't necessarily cover all your bases. They might not be updated to include the the current legal verbiage that's recommended, but they also might not. I I've seen a lot of those type of documents that clients bring in. Oh, I just did this from Legal Zoom, and it might say, I want, you know, my if if my husband dies, then um, if I die first, my husband's alive, I want everything to go to him, if not go to our kids. Well, what happens if one or more of your kids are gone? Because it doesn't, they're not very across the board from what I've seen, they're not very good about having contingent situations. Well, if this happens, then I want it to go to their children in this way or this, you know, the all of that. Um there's a lot of holes in them, is my point. And so maybe it would, it would cover you, but maybe not.

SPEAKER_00 43:27

So I know a lot of times people will go that route just because of the cost, right? Yeah. Uh can we talk pricing on what would it take or what would it look like for someone to receive your services for estate planning? And is it just it depends on what the assets and things that they have?

SPEAKER_01 43:47

And um, it it does depend. Um, the trust plans in general are a lot more work up front. Um, so they're a lot pricier. Than maybe a will-based plan. But if you think about it that they're avoiding probate on the back end from you know, potentially, well, that person, but if they're in a married situation, it could be both. Um so and and it it's difficult to I mean, a lot of people are cost conscious when they come in, which is very smart. That's how I am. You know, go into different certainly that, but I the important thing to me is make sure you're comparing apples to apples. Right. You know, so a lot of people will be like, oh, well, my mom got or my friend, whatever, got this for a hundred dollars plan. Exactly. For a hundred dollars or whatever. And, you know, why is yours that much better or whatever? I'm like, well, $100, how long ago? And what's the you pay for what you get.

SPEAKER_03 44:57

Right, absolutely. Absolutely. And it's cheaper on the front end than it could be on the back end. Yeah, for sure. Yeah.

SPEAKER_02 45:04

Yeah. But knowledge also gives value. I I know for my husband and I, once we understood the benefit and the value of it all, we thought that it was going to be a crazy amount of money. But when we found out how much it was, it was like, okay, where's that checkbook? We could do this, you know, let's do this now, you know, before we change our mind.

SPEAKER_03 45:31

All right, we're gonna change this now.

SPEAKER_02 45:33

But I would say that when you find out the value of it though, then it causes the it to be an invalid, it's it's really priceless, honestly.

SPEAKER_01 45:45

It's not yet it is, and um, but but again, like one of the things that we're talking about is the this trust that that one client came in where he was the trustee for his mom and it was completely not funded. There was no pour over will. So I who knows how much they paid for that, but they all they got was a a nightmare and a hassle on that the children are doing, and they got no value out of it. That that person who did it, um, or the his mom who had died, but paid for it.

SPEAKER_04 46:19

Right.

SPEAKER_01 46:19

Um, so if you not only is it um the legal documents itself, but it is the education and understanding like what is really gonna be best for you. So I even had a client come in early earlier this week, and he's like, I have a will, but but you know, I really I feel like I need a trust. My daughter said I need to come get a trust. So, you know, I spent probably an hour and a half with him talking about different things, looking over his documents, all this. And I'm like, honestly, you don't need a trust because he didn't have the what he had. All of his accounts were already um uh he only had the one daughter. The the only all of his accounts, she was either a joint on him or if or pan-death beneficiary. The only thing he needed that he didn't already have was to get a ladybird deed in place, which is a uh type of uh transfer on death deed, where it basically you're giving yourself a life estate in the house, and then upon your death, the property immediately transfers to someone else, thus avoiding probate. Ladybird deed. Lady bird deed. Yeah. There's not all states recognize them, but certainly Texas does, so that's good. Yeah.

SPEAKER_02 47:36

I love the fact that you said, um, you know, just to her question, also, um, is that when you come in and you talk to an attorney, that person can find out all the different um intimate places and caverns and this, that, and the other, and tell you you also need this and and and give you the wisdom of it, and also say, but you don't need that, you know.

SPEAKER_01 48:05

Well, that's what a good attorney will do, you know, the experience to upsell you into something that really isn't gonna protect you. Um so I I think that's really that's important for sure.

SPEAKER_03 48:22

But yeah, I just had a very basic question. Um, what happens to those things that are not covered? Um, like um family heirlooms or um digital accounts, social media accounts for the loved one that has passed. How how how are those things handled?

SPEAKER_01 48:42

Certain for a will or a trust plan through through our firm. Um, and I'm with Davidec Law Firm in in New Braunfels. Um they say that one more time, Davideck. Davideck, yeah. We're we're rebranding to Texas Asset Protection Law. Oh, okay. But yeah, I think my my cards say both right now. So, but and it's a fantastic firm. It's really great. The Beverly Davideck and what is the the owner founder of the firm, and then um Robert Harrison is a partner too, and he's fantastic, really great. Um, but anyways, they are so I'm I'm gonna tell you like the will and trust plans that I see because I've seen a lot of other ones that maybe don't handle that stuff, you know what I'm saying? But like a good will or trust with a trust, you assign, you sign what's called an assignment of tangible of personal property, where you assign all tangible personal property to the trust. So we're talking jewelry, furnish, furniture, kitchen supplies, like literally everything, vehicles, RVs, motorcycles, um, all of the tangible stuff. You assign it to the trust, so it's owned by the trust. So then the trustee has the authority to go and get rid of it or sell it or whatever. But there's another document that's incorporated by reference into either the will or the trust, depending on which one is the document that has the distribution set forth in it. And it's a personal property memorandum. And that's where you say my mother's ring to Addison or, you know, whatever. But you set forth any specific wishes you have for certain items. So I always recommend that people try to do that while they're still alive. Yeah. Because then they can see the joy to bring someone else. But since you don't know when you're gonna go, it's you know, anyway, that's how that type of um distribution would be handled for heirlooms and things like that. Um, there's also verbiage that gives the trustee or the executor, depending on the the situation, the um power to control digital assets and and things like that. What'd you say, uh social media? Yeah. Um that's kind of a different thing. It's not necessarily an asset, but that brings into in all kinds of other things like all these other accounts that that would do you want someone to go in it and make a notice so that people know closing it down. Yeah, that type of thing. Yeah. I mean, I presume it would just for like a Facebook account or something, maybe it would just eventually go abandoned. I don't know exactly.

SPEAKER_02 51:37

There's a lot that just go abandoned, I'm sure. Yeah. We are, we probably have a maybe about two or three more minutes. Any other questions?

SPEAKER_00 51:50

Yeah, one last question I would say. Uh, what would you tell our listeners right now that would be out of everything we talked about, two important things that they need to do today if they could, as it relates to estate planning, wills, trust.

SPEAKER_01 52:07

Um, talk to their significant other if they have one. If not, then just for themselves, put something in place. Because a will is way better than nothing, because then at least things will be distributed as per your wishes, instead of according to the laws of the state of Texas, then in effect, you know. Um, and maybe and so for a will, but the other things like medical power of attorney, uh, power of attorney, those type of uh documents, and make sure that your loved ones know what your wishes are. Um, because even if they're designated as your medical power of attorney, do they know your feelings on transfusions or, you know, and any specific strong feelings you may or may not have, right? Um and then uh to put something uh in place for that, to just think about that, and then so talk to your loved ones and put some something in place, I guess.

SPEAKER_02 53:14

Just put something in place today. I think that's good. That's great. Good. Thank you. Beautiful. So we've pretty much talked about the package, not saying and that package could has um can be expressed in different ways, but we've talked about the practice um that package. Um, and and what I also heard flowing through there was it's just better to do it today. It's better to do it now as opposed to after death or when something happens to you and you can't make the decisions anymore. And it's also better to do it now than once you find out something like a diagnosis and now you're in a mad scramble. Just do it now so that you can take the time. I know with us, you guys just took the time. When we did the directive, I was like, yeah, this one's for me. You know? And my husband was like, oh my gosh. And it took us like two or three weeks before we came back.

SPEAKER_01 54:12

And they they just assume their partner knows what their wishes are, or and they have very it's it's interesting as the attorney because I'm like, I can walk out. It's like I'm alone, I'm on this one. Yeah, like you think that I thought this and like anyways, it's just communication, it's a big thing.

SPEAKER_02 54:31

I was like, God wants to take me, let's do it, you know? And my husband was like, you know, and then even for him making his decision, that's where we had to step away for a couple of weeks and and then come back, you know, because it's like, but what would people feel if and if I did this with hey, what do you want, honey? And it took a minute for him to just come to a decision. And I personally didn't even want to rush him, just take your time.

SPEAKER_01 54:59

But then it takes the scary part out of it. You know, some people are really hesitant because they're just like, oh, it's about death, I don't want to think about this.

SPEAKER_02 55:07

Absolutely, yeah. Yeah, so doing it now, I think is the just gives you time and you don't have to feel rushed, right? But thank you so very much.

SPEAKER_01 55:19

Yeah, it's my pleasure to go and enjoy it, enjoyed it. Thank you. The hour's gone.

SPEAKER_02 55:24

I know just like that, just like that. All right, thank you again for joining us for her presence. Make sure that you share, make sure that you like, uh, subscribe, YouTube. Um uh we are on Spotify and Apple. And all those famous places that you found. All those famous places.

SPEAKER_03 55:46

Famous, yeah.

SPEAKER_02 55:47

See you next time. Thank you.