Must-Have Estate Documents for Seniors
- Kristen LaFreniere, Vander-Plas LaFreniere, PLLC Estate-Planning and Probate Lawyer
- Apr 28, 2023
- 5 min read
Seniors have a lot of chances to plan their retirement years. Many of the options even in this handbook are designed to make us think about the best way to spend our time and money so that our lives are simpler, easier, more pleasant, and cost-effective. One of the other things to consider though is what legal documents you need to complete to not only make your life easier, but to help your family when the time comes to take care of you and, eventually, upon your
death.
You should always discuss these documents with an attorney and, ideally, have an attorney draft and complete them for you. There are many pitfalls with do-it-yourself wills and
estate documents. Well-drafted estate documents can save you money and time and can often save your family thousands of dollars when they come into play. More importantly, perhaps, is the possibility of avoiding the probate process completely by having your estate planned by a knowledgeable attorney. This article seeks to quickly demonstrate the few documents each of us should have to plan for the possibility of needing assistance.
Will
Every person, big or small, should have a will. This is a document that gives your wishes for everything related to your death and estate. You name someone (or a list of people) that you want to handle the specifics of carrying out your wishes and then you choose who you want to receive your property upon your death. Oftentimes what we want to happen to our property is not what the courts and the state will do with your property if you don’t have a will. Written wills must have certain language on executors, etc., must be dated and signed, and must have two witnesses. It is also a very good idea to have a notary present as well.
Transfer-on-Death Deed / Ladybird Deeds
These deeds act similarly to beneficiary designations for life-insurance policies or bank accounts. A transfer-on-death deed only transfers a piece of real property (typically your homestead, although any property can be transferred this way) to your chosen beneficiary upon your death. You are still allowed to do anything you want with the property until then, including sell it, because the transfer doesn’t happen until you pass away. Because a home is often one of the largest assets in a person’s estate, having a TODD can allow the surviving spouse or children from having to open a probate case with the court because the deed doesn’t require a court order.
A Ladybird Deed (named after “Lady Bird” Johnson) is similar to a TODD but it transfers the property to your beneficiaries immediately, leaving you the irrevocable right to live in and use the property for your entire life. This can sometimes be helpful if a person is attempting to or knows they may want to apply for government benefits, because it means the property typically is no longer part of the assets the government looks at to determine your eligibility.
Medical and Statutory (Durable) Powers of Attorney
These documents allow you to choose and appoint a person (or a list of alternates, if you choose) to make medical decisions and engage with doctors, insurance companies, real-estate companies, banks, government entities, utilities, retirement funds, etc. You do not have to choose the same person to make medical and healthcare-related decisions as you do the other, more financial, decisions. Having powers of attorney set up is vital, because it allows those you trust to have the authority to continue to take care of matters for you. Unless you specify otherwise, the agent(s) you name only have the power to make decisions when you are unable to do so, either because you are out of the state/country, or physically/mentally unable to make those decisions. It is also important to note that powers of attorney die when you do. So, the person you have named as an agent loses all authority when you pass away. That’s why it’s so important to combine powers of attorney with the other documents described here, so that all aspects are covered and protected.
Guardianship Declaration
None of us wants to think about what would happen if we could no longer take care of ourselves and needed someone to be appointed as our guardian. As uncomfortable as it is to think about, however, we all also probably have someone in mind that we would be most comfortable with making those decisions, if it came to it. We also might have in our mind someone we would not like making those calls. A guardianship declaration allows for both of those contingencies. It allows you to make your wishes known as to who you do and do not want to be considered as a guardian of yourself and/or your finances. The Court has to take this into account and cannot appoint anyone you have specifically eliminated from your list (even if they apply to be your guardian) and must take your preferred guardians in order, as long as they are otherwise qualified to serve as a guardian.
Advanced Directive
If you have specific thoughts or wishes regarding whether you want doctors and hospitals to use life-saving measures at the time of a terminal illness or catastrophic accident. This is the document (sometimes referred to as a DNR or a do-not-resuscitate order) that tells your family and your doctor what you want to happen. If you are diagnosed with a terminal illness and your doctors all agree that you will not recover, do you want life-saving measures (like ventilators, feeding tubes, etc.) or to be kept comfortable?
If you are alive but in, for example, a vegetative state and the doctors agree that you will not ever regain consciousness, do you want to be kept alive through medical means or made comfortable and allowed to pass? It is important to note that this document does not cover things like emergency surgery after a car accident and things of that nature. It only takes effect in the two situations above—not in general surgery or medical situations. Having this document is extremely important so that your family members and loved ones aren’t left with the need to make these decisions for you, hoping they make the choice you’d want them to.
Appointment of Agent for Remains
This document allows you to do two things. First, it allows you to pick the person who is responsible for helping the funeral home make final arrangements. Second, and most importantly, however, it allows you to designate whether you want to be buried or cremated. If there is any chance at all that you might want to be cremated, you need to fill out this document. Many states, Texas included, does not allow a person to be cremated without certain family members agreeing. Sometimes that’s not a problem and everyone signs off (a surviving spouse or all children, as an example). But too many times I have seen a child be out of town, or a child or sibling disagree with the decision to cremate a loved one. Most funeral homes will not allow a cremation to move forward without this document.
As stated earlier, these documents will make your life easier and will certainly ease your family’s decisions as the time comes to assist you in health, financial, and other decisions. Many times I have people come in my office who have had to make difficult decisions for their parents or loved ones because the wishes were not laid out. Not only is moving forward in that situation a difficult and often expensive endeavor, those left behind are often struck by the worry that they handle things the way their loved one wanted. Nothing gives more comfort than eliminating the worry of “what if” by taking the time to make your wishes known.
If I can help you with any of these documents, or you simply want to discuss them and which avenues might be right for you and your family, I would love to chat.
Kristen
Must-Have Estate Documents for Seniors Kristen LaFreniere, Vander-Plas LaFreniere, PLLC Estate-Planning and Probate Lawyer
Will
Transfer-On-Death Deed/Ladybird Deed
Medical and Statutory (Durable) Powers of Attorney
Guardianship Declaration
Advanced Directive
Appointment of Agent for Remains

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