No matter what an individual might face, the future is easier to handle when they have a plan. One of the most crucial plans an individual should consider is an estate plan. Estate planning can help a person take care of loved ones and protect themselves in the event of their incapacitation or death. What documents are needed for estate planning? In this article, we’ll cover some of the most common ones and how they fit with your future plans.
At Massingill, we believe in empowering our clients with knowledge. We can help clients draft comprehensive estate planning documents to help shape their futures into what they want. With several decades of experience, we have received countless top reviews from our clients. Contact us today if you need knowledgeable support and guidance in an estate planning matter.
Key Takeaways
- Estate planning documents in Texas answer three critical questions: who inherits your assets, who manages your finances if you are incapacitated, and who makes your medical decisions.
- A complete estate plan typically includes a will, revocable living trust, durable financial power of attorney, medical power of attorney, and an advance healthcare directive.
- Without proper estate planning documents, Texas law determines how your assets are distributed, which may not reflect your wishes and can create unnecessary stress for your family.
- Trust-based planning can help certain assets avoid probate, while powers of attorney and healthcare directives protect you during incapacity—not just after death.
- Estate planning is not one-time—it should be reviewed and updated after major life events like marriage, divorce, having children, or significant changes in assets.
What Are Estate Planning Documents?
Estate planning documents are the legal instruments that dictate how your assets will be managed and distributed during your lifetime and after your death. They also designate who can make financial and medical decisions on your behalf if you become incapacitated.
At their core, these basic estate planning documents answer three critical questions:
- Who inherits your assets when you pass away?
- Who makes medical decisions for you if you cannot speak for yourself?
- Who manages your finances if you are unable to do so?
Without the right estate planning documents in place, Texas state law answers these questions for you—and the results may not align with your wishes.
What Happens When Someone Dies Without an Estate Plan?
When someone dies without a will in Texas, that person’s estate is subject to distribution according to the state’s intestate succession laws. These laws establish a hierarchy of the deceased’s legal heirs and how they will share in the distribution of property. Intestate succession laws divide the estate among a surviving spouse, children or descendants, and sometimes parents, siblings, or distant kin.
Being subject to intestate succession laws can lead to outcomes a deceased person might not have intended, creating complications and emotional distress for their loved ones. A well-drafted will or trust can help ensure a person’s assets go to the people they choose and in the amount they desire.
The Essential Estate Planning Documents You Need
1. Last Will and Testament
A will is arguably the cornerstone of estate planning documents for many. The testator (the person making the will) creates a legally binding document that directs how to distribute their assets to their chosen beneficiaries after passing.
In general, a will must be:
- In writing,
- Signed by the testator (or someone acting on their behalf),
- Attested by two credible witnesses who are at least 14 in the testator’s presence.
A will should also be comprehensive. If it does not address a piece of property that the testator owns, that property passes under the state’s intestate succession laws.
Texas tip: Texas allows for a “self-proving” affidavit to be attached to your will, which simplifies the probate process by eliminating the need for witnesses to testify in court. Having your will prepared and witnessed by an attorney helps ensure it withstands any legal challenges.
2. Revocable Living Trust
A properly executed trust can bypass the probate process, which is desirable for many individuals developing their estate plans. Probate is a lengthy and dreaded process.
During probate, a Texas court does the following:
- Decides whether a deceased person’s will is valid,
- Oversees the inventory and appraisement of the deceased person’s estate and liabilities,
- Oversees the payment of the deceased person’s debts and taxes, and
- Oversees the distribution of the deceased person’s estate according to their will or intestate succession laws (or both).
Probate proceedings can stir up fighting among loved ones and affiliates of the deceased. People may come out of the woodwork to contest a will or argue they are the rightful heirs of the deceased. A trust can cut through all of this noise.
With a trust, a person’s property can be transferred to the trust, avoiding the need to divide an estate in probate court. Instead, beneficiaries receive assets according to the trust’s terms. An individual can create a trust by:
- Declaring that they hold property in trust for another person,
- Transferring property during their lifetime to another person who will be a trustee for the benefit of the individual or a third party, or
- Transferring property in a will to a trustee for the benefit of a third party.
The trust must be in writing and signed by the person creating it (the settlor). The settlor can determine what type of trust to create and whether they want to have control over trust property while they are still alive. Massingill has spent years helping the people of Texas prepare trust documents for their unique circumstances. We can create a plan that is as rigid or flexible as an individual needs.
3. Durable Financial Power of Attorney
A durable power of attorney is a vital document that allows someone (the principal) to appoint an agent to manage their financial affairs and property if they become incapacitated and cannot make decisions. This document can grant an agent broad authority to handle various matters, such as:
- Paying bills,
- Managing bank accounts,
- Buying or selling property, or
- Dealing with investments.
The power of attorney can specify the scope of the agent’s authority and any limitations the principal wishes to impose.
Texas tip: Texas has a statutory durable power of attorney form outlined in the Texas Estates Code (Section 752). While you are not required to use the exact statutory form, your document must comply with Texas law to be accepted by banks and financial institutions.
4. Medical Power of Attorney
A medical power of attorney allows a person to appoint an agent to make healthcare decisions if they cannot do so on their own. This document may be necessary because of a principal’s illness, injury, or disability. A medical power of attorney is a written, witnessed, and signed document granting an agent the authority to consent to, refuse, or withdraw medical treatment on the principal’s behalf. The principal can also provide specific instructions fr limitations on their agent’s authority.
Texas tip: Texas has a specific statutory form for the Medical Power of Attorney under Chapter 166 of the Texas Health and Safety Code. Your designated agent cannot be your healthcare provider or an employee of your healthcare provider unless they are your relative.
5. Advance Healthcare Directive (Living Will)
Like a medical power of attorney, an advance directive helps an individual plan for medical care in case they cannot make decisions or communicate their wishes when care is needed. Advanced directives commonly address decisions regarding end-of-life care.
In Texas, this document is formally called a “Directive to Physicians and Family or Surrogates.” It typically addresses whether you want life-sustaining treatments, your preferences regarding pain management and comfort care, and any religious or personal beliefs that should guide medical decisions.
6. Beneficiary Designations
Beneficiary designations are often overlooked in estate planning, but they are among the most important documents you have. These designations determine who receives assets from your life insurance policies, retirement accounts (401(k), IRA), bank accounts, and investment accounts upon your death.
Critical point: Beneficiary designations override your will. If your will says your retirement account goes to your spouse, but the beneficiary designation on the account still lists an ex-spouse, the ex-spouse will receive the funds. Review and update your designations whenever you experience a major life event such as a marriage, divorce, or birth of a child.
7. Letter of Intent
A letter of intent is a personal document you leave for your executor, trustee, or family members. While it is not legally binding, it provides guidance that your other estate planning documents may not cover—such as funeral and burial wishes, the location of important documents and digital account passwords, explanations for your distribution decisions, and instructions for the care of pets.
Think of a letter of intent as the “user manual” for your estate plan. It helps your family understand not just what you decided, but why.
8. Guardianship Designations
If you have minor children, designating a guardian is arguably the most important decision in your entire estate plan. A guardianship designation names the person you want to raise your children if both parents pass away or become incapacitated.
Without this designation, a Texas court decides who raises your children. In Texas, you can designate a guardian in your will or through a separate written declaration, and you can also name an alternate guardian in case your first choice is unable or unwilling to serve.
Estate Planning Documents Checklist
Use this checklist to make sure your estate plan covers all the essentials. If you are missing any of these documents, our team at Massingill can help you get them in place.
- Last Will and Testament — Directs asset distribution, names an executor, designates guardians
- Revocable Living Trust — Bypasses probate, provides privacy and seamless asset management
- Durable Financial Power of Attorney — Authorizes someone to manage finances if you’re incapacitated
- Medical Power of Attorney — Designates someone to make healthcare decisions on your behalf
- Advance Healthcare Directive — Documents your end-of-life treatment preferences
- Beneficiary Designations — Ensures retirement accounts and life insurance go to the right people
- Letter of Intent — Provides personal guidance, funeral wishes, and context for your plan
- Guardianship Designations — Names who will raise your minor children
Choose Us to Choose the Future You Want
At Massingill, we understand that estate planning in Texas requires careful consideration and personalized solutions. Whether you need basic estate planning documents or a comprehensive trust-based plan, we are committed to providing our clients with clear and concise guidance and effective legal strategies. Contact Massingill by phone or online today to discuss your estate planning needs and take control of your future.
Frequently Asked Questions: Estate Planning Documents in Texas
The five most important estate planning documents are a last will and testament, a revocable living trust, a durable financial power of attorney, a medical power of attorney, and an advance healthcare directive. Together, these documents help ensure your assets are distributed according to your wishes, your finances are managed if you become incapacitated, and your healthcare preferences are honored.
The documents needed for estate planning in Texas depend on your situation, but most adults should have at least a will, financial and medical powers of attorney, and an advance healthcare directive. If you want to avoid probate or have more complex assets, a revocable living trust is often recommended. You should also review beneficiary designations on retirement accounts and life insurance policies.
The cost of estate planning documents in Texas varies based on complexity. A basic estate plan typically ranges from $1,000 to $3,000, while a more comprehensive plan that includes a revocable living trust may range from $2,500 to $5,000 or more. Working with an experienced estate planning attorney helps ensure your documents are effective and tailored to your goals.
Some estate planning documents in Texas benefit from notarization. While a will does not require notarization to be valid, adding a notarized self-proving affidavit can simplify probate. A durable financial power of attorney should be notarized, and a medical power of attorney typically requires witnesses. Proper execution helps ensure these documents are accepted when needed.
You should review your estate planning documents every three to five years, or sooner if you experience a major life change such as marriage, divorce, the birth of a child, a significant change in assets, or the death of a beneficiary or executor. Keeping your plan updated ensures it reflects your current wishes.
Resources:
- Community Estate of an Intestate, Tex. Estate Code, §201.003 (2019), link.
- Separate Estate of an Intestate, Tex. Estate Code, §201.002 (2014), link.
- Estate of an Intestate Not Leaving Spouse, Tex. Estate Code, §201.001 (2014), link.
- Inventory and Appraisement, Tex. Estate Code, §309.051 (2014), link.
- Statute of Frauds, Tex. Prop. Code, §112.004 (1984), link.
- Form, Tex. Estate Code, §752.051 (2014), link.
- Scope and Duration of Authority, Tex. Health Code, §166.152 (1999), link.
- Execution, Tex. Health Code, §166.154 (2009), link.
- Written Directive by Competent Adult; Notice to Physician, Tex. Health Code, §166.032 (2015), link.
- Form of Written Directive, Tex. Health Code, §166.033 (2015), link.
Joshua Massingill
Joshua Massingill is an attorney practicing in Austin, Texas. He serves on the Texas State Bar’s Law Practice Management Committee, the Leander Educational Excellence Foundation (LEEF) Board of Directors, and the Success-Werx Board of Advisors. He mentors young entrepreneurs in Leander ISD’s INCubatorEDU program and is active in his church.
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