An estate plan is a plan that comprehensively covers a lot of contingencies beyond just who gets what. Who gets what is definitely an important question, but it's only one piece of the puzzle. Estate planning covers also incapacity and disability. Who is making sure that your bills are paid and your assets are being managed if you can't do that? Who is making medical decisions for you, and who can talk to your doctors just to find out how you're doing? So, an estate plan covers that piece. It also covers guardianship. If you're parents of a minor child, you want to make sure that you've got the short-term emergency situation covered, who can be with your children overnight or for a short period if you need help, and then also who would raise them. That's long-term guardianship. An estate plan covers that piece, and of course, as I mentioned, an estate plan covers who gets what. You might use a will to say that. You might use a trust.

The short answer honestly is yes. A will says who gets what, but that's not the only question when it comes to estate planning. Estate planning covers what if you're incapacitated or disabled, who's in charge of your assets and your medical decisions or your minor children if you're a parent of minors, who's caring for them during that time, and then ultimately who would be raising them if something were to happen. So, you definitely need more than a will. Every adult in Texas and any state needs a power of attorney, who's in charge of your assets, who's in charge of your medical decision making. You need a living will, which is what happens if you're on life support making an end of life decision ahead of time, as well as a HIPAA release who can your doctors talk to, so that your family members and loved ones can know how you're doing. And you need all of that in addition to a will. Whether you need a will and a trust is a separate question, but definitely a will alone doesn't cover all of your estate planning needs. Also, if you're a parent of minors, you'd want the guardianship completely covered. Short term guardianship for an emergency situation. Long term guardianship, who would raise your children. Emergency wallet cards to make sure the information about your estate plan is immediately available in an emergency. A letter to your children, a letter to their guardian, just so that they know things you would want them to know if you need to write something down, if your children are very young or if a guardian would want some advice from you about what to do. That is a way to supplement just a will to make sure that everyone knows ultimately your wishes, your values, and your stories to pass down.

So if you pass away with no will in place, state law fills in the gaps. So state law dictates who gets what if you haven't clarified in a will who your heirs and beneficiaries are. State law tends to follow kind of what you might expect people to choose. A surviving spouse is the primary heir, and then children after that. If there are no spouse or children living, then it goes up to your parents who would receive your estate. And then, ultimately your siblings, and nieces, and nephews, until someone is available to receive your estate. But it can get really tricky, if you have a blended family, or either you or the surviving spouse have children from a different relationship. Because the numbers get a little tricky, and don't just go flat out 100%, or in equal shares in that case. So even though Texas law does fill in the gaps to make sure that people who are close to you receive your estate, it might be different from what you would want. And it also doesn't clarify who is in charge of the assets left to a minor, or an incapacitated beneficiary. So, state law is really just following the family tree, but really doesn't do a whole lot more than that to make sure that those who do receive your estate, receive it in a way that you would want, and maybe at specific ages along the way that you would want. So, if you die without a will, state laws fills in the gaps. But even then it really important to make sure that your plan is laid out, in writing, so we're not having to rely on state law for you.

You might hear or read a lot that the point of estate planning is to avoid probate. Probate is simply a court system. It's a court system. Every state has their own probate court system where a judge says who is in charge of an estate. So if you pass away, who's in charge of making sure that your assets go to the heirs who are legally entitled to them.

It's also the court system to make sure that if someone, whether it's a minor child or incapacitated adult, has someone else that a judge has selected to be in charge of that person's assets and that person's medical decision making.

So the probate court is, one way to think of it is that it's a plan, so to speak, for those without a plan. If you haven't done estate planning to avoid probate, you're leaving it up to a probate judge to figure out who's in charge of your finances if you're incapacitated, who's guardian of your children if something happens to you and you leave minor children, who's in charge of getting your assets gathered and inventoried and paying your creditors and, ultimately, distributing your estate out to your heirs. That's where a probate judge is having to fill in the gaps.

It is a court proceeding. When your family members or loved ones have to go through probate to help you or your estate, they get a case number. It's just like any other legal proceeding in that court records are public and a judge is deciding things along the way.

Probate is not a must when it comes to estate planning. You can try to avoid probate with your estate plan if you sit down to actually put these things in writing ahead of time, but to the extent that any estate planning you did online or do it yourself missed a few key components or to the extent you didn't do an estate plan at all, then probate is kind of the fill in the gap for your plan.

This is really a very client-specific question. We don't take the approach that everyone has to avoid probate. We take the approach that we'd like to educate you about what probate is, how you can avoid it, and then, you, as a client, are deciding what is the best route to go.

Probate is a court proceeding, so everything filed in court becomes a public record, which means things that were kept quiet, who your heirs are and what they're receiving before you passed away now becomes public, so that might be one reason you'd avoid probate. Another thing to consider is because probate is the court system, as you might expect, there are delays or it just takes a while to get through the court system versus being able to act quickly and immediately. So if you decide you want to make sure that your family can act quickly and efficiently on your behalf and doesn't have to go to court first, you may want to avoid probate. And if you want to keep your affairs private, everything about what your estate plan looks like and who you provided for and under what circumstances, then you definitely want to avoid probate.

A will, and this may actually surprise you, but a will does not avoid probate. A will has to be filed in a court before it is legally effective and anyone can act on your behalf or your estate's behalf. So a will does not avoid probate. If you decide probate and the fact that it's public and can take a long time is important to avoid, then I would recommend that you utilize a living trust as part of your plan.

Think of a trust as a will-substitute. A will says who gets what, under what circumstances, and who's in charge of making that happen. A trust does the same thing.

The critical difference between a will and a trust is that a will has to be filed with a probate court and reviewed and approved before anyone can act under it or receive any assets from your estate. So everything filed in the probate court, including the will, becomes a public record, and, as you might imagine, it takes time to go through a public court proceeding.

A trust, on the other hand, is a completely private document. No one's entitled to see it except those who are named in it, and the successor trustee named in your trust can act immediately, without having to go to court, file anything, or get permission first. So a trust is a totally private document that can be more immediate and efficient upon someone's passing, whereas a will is a public document once it's filed with the court, and the court has to review and approve it before anyone can act under it.

So a will and a trust are similar in terms of what they're trying to achieve, but they just go through a different process down the road when someone actually needs to act. A trust is more efficient and private, a will takes a little bit longer and is public.

You've probably heard people say that trusts are only for the rich or only if you have a net worth of X number of dollars or more. That is not the approach that we take at Haley & Jones. Instead what we do is we let the client decide, is a will the best route or is a trust the best route? It has nothing to do with how much you own or might own or your net worth or anything like that. Because for us, it's really about the quality of what your family's gonna have to go through.

If you leave a will and no trust, your family's probably gonna have to go through the probate court in most cases. If you utilize a trust instead and everything is done properly, then your family can avoid the probate court and things can be much more immediate as well as kept private versus with a will, things become a public record.

So going through the ins and outs of how a will works, what steps are actually going to be taken, versus how a trust works, what steps to take under a trust down the road, that really helps our clients figure out, is the trust right for them?

We never make a judgment call looking at our clients' assets to say, "Oh, that client doesn't need a trust. We're not even going to talk to them about it." Or making the judgment call, that client definitely needs a trust and that's all we're gonna talk to them about. It's not up to us ultimately. It's up to our clients who we go to great lengths to educate you about the differences between the two so that ultimately you're the one deciding what's best for you and your family. Some reasons you may choose a trust over a will are below: privacy, avoiding probate, potential tax savings, and potential medicare eligibility