Estate planning and incapacity documents in Texas

The five core documents

For most Texans, a complete foundation plan includes five documents. Each one solves a specific problem that will otherwise land in a courtroom.

1. Last Will and Testament

A will names who inherits, who serves as executor, and — critically in Texas — whether the executor serves independently, without ongoing court supervision. A properly drafted Texas will requests independent administration and waives bond, which keeps probate fast and inexpensive. Without a will, Texas intestacy law decides who inherits, and the outcome often surprises blended families: separate and community property pass by different rules, and children from a prior marriage can end up co-owning the family home with a surviving spouse.

2. Statutory Durable Power of Attorney

Names an agent to handle financial affairs — banking, real estate, bills, benefits applications — and stays effective ("durable") through incapacity. Texas provides a statutory form, but the statutory form alone is often inadequate for elder law purposes: it does not automatically include the enhanced gifting, trust-funding, and Medicaid-planning powers an agent may need to protect assets if long-term care later becomes necessary.

3. Medical Power of Attorney

Names the person who makes healthcare decisions when the signer cannot. Without one, Texas law supplies a default list of decision-makers — which may not be the person the signer would choose, and which gives hospitals no clear answer when family members disagree.

4. Directive to Physicians ("Living Will")

States the signer's own wishes about life-sustaining treatment in a terminal or irreversible condition, so that decision never has to be carried alone by a spouse or children.

5. HIPAA Authorization

Allows doctors to share medical information with the people named. Without it, even a spouse can be told "we can't discuss that with you."

Does the plan need a revocable living trust?

Texas is one of the easiest states in the country to probate a will, thanks to independent administration — so the "avoid probate at all costs" advice common in California or Florida doesn't translate directly here. A revocable living trust still earns its keep in specific situations:

• Incapacity management. A funded trust lets a successor trustee manage assets seamlessly through dementia — often more smoothly than an agent under a power of attorney, because banks and title companies rarely question a trustee's authority.
• Out-of-state property. A trust avoids a second ("ancillary") probate in another state.
• Privacy and family conflict. Trust administration is private; probate filings are public record.
• Blended families and long-term control. Trusts can hold property for a surviving spouse for life, then guarantee it passes to the children.

A trust only works if it is funded — accounts and real estate actually retitled into it. An unfunded trust is the most common estate planning failure attorneys encounter. The firm's Estate Planning practice handles both the documents and the funding.

What aging changes about estate planning

Estate planning for a 45-year-old and a 75-year-old are different disciplines. After 65, the plan needs to anticipate three things a younger person's plan can ignore:

• Long-term care exposure. Documents should give agents and trustees authority to do Medicaid and VA planning later, without a court's permission — see the long-term care guide.
• Capacity questions. Signing documents while capacity is clearly documented protects the plan from later challenge — and protects the family from conflict.
• Beneficiary designations. Retirement accounts, life insurance, and payable-on-death accounts pass outside the will. In many estates they are most of the wealth, and outdated designations quietly override a well-drafted will.

Families ask.