Couple ought to update powers of attorney and other forms
The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.
Q: Many years ago when our children were very young, my husband and I had wills drawn up, and we named my brother as executor. Now, we would like to change the executor to our daughter. Can we do this ourselves, or do we need to have new wills drawn up?
A: You can try to make the change yourselves, but you might mess it up.
It is best to hire a lawyer to make the changes correctly. It might even be time for entirely new wills.
While you are at it, you should strongly consider changing your financial powers of attorney, medical powers of attorney and directives to physicians. All of these forms have changed in the past few years, and you will probably want to name new people in the documents rather than the ones you chose years ago.
Q: I inherited a onethird life estate in the home owned by my deceased spouse. She died without a will. According to my attorney, if her children can’t figure out how to pay the two-thirds of the taxes they owe, a judge could order a sale. Where does this leave me?
A: Your attorney is not exactly correct because your one-third life estate is not the same as owning a one-third undivided interest in the property.
You have the right to live there for the rest of your life, and no one can make you leave. The children also can’t force you to let them live there with you. While you are living in the home, you must pay for all of the upkeep, property taxes and mortgage interest. Your deceased wife’s children must pay mortgage principal (if any) and all property insurance premiums.
You asked only about taxes, and since this is your responsibility, you are in control of whether the taxing authorities come after you for failure to pay. You did not mention whether the property has a mortgage. If it does, then you need to be sure the children pay their shares, and if they don’t, you should consider paying it yourself so that you don’t lose the home in a foreclosure.
As to property insurance, you definitely want to have insurance in force, but again, if the children won’t pay, you may want to pay this expense yourself.
Q: My wife and I own our home together. Do we need one Transfer on Death Deed or two (one for each of us)?
A: There is no clear answer to your question.
If you read the statutory form, it would seem as though spouses should each have their own form. However, attorneys do prepare only one Transfer on Death Deed signed by both spouses.
There is a form available online at texaslawhelp.org. This free form is designed to be used by spouses together, with only one form. Note, however, the form on the website is not the newest version. The website says the form will be updated, but it doesn’t say when.
Ronald Lipman, of Houston law firm Lipman & Associates, is board certified in estate planning and probate law by the Texas Board of Legal Specialization. Email questions to stateyourcase@lipmanpc.com