Frequently Asked Questions
A Will is the legal document by which an individual (called the “testator”) specifies the individual(s) or charity(ies), also called beneficiaries, who inherit the testator’s real and personal property when the testator dies. If the testator dies intestate (that is, without a will), then the State of Texas decides who the testator’s beneficiaries are for inheritance purposes.
If you are single, unmarried and without significant assets, you may not be concerned. If you are in your first marriage, you may not be concerned either because Texas law directs that your spouse and children (if any) will inherit from you.
A Power of Attorney for healthcare allows a spouse to make medical treatment decisions on behalf of, and obtain information about the condition of, a legally incompetent spouse. This is particularly important in cases of dementia, heart attack or stroke because the spouse may not have the mental capacity to understand what is happening to them or around them.
Without a Power of Attorney, the competent spouse will be forced to apply to a court for a guardianship of the person for the spouse. As a result, necessary medical treatment may be delayed and unnecessary expenses are incurred.
For parents with children turning 18, you lose the all authority to make healthcare decisions on behalf of your child – even in the event of an emergency – and you are not entitled to be notified that your child is in the emergency room. A Power of Attorney for healthcare executed by your child, where you are designated as his or her agent, will erase the helplessness you will feel if you do not take this simple, proactive step to protect your child.
Do you send your minor child(ren) on vacation with grandparents? Did you know that grandparents do not have the legal right to make healthcare decisions for their grandchild(ren) absent a Power of Attorney? Rath Law PLLC can prepare the proper document giving grandparents the authority to make healthcare decisions for your children while in their care.
Not every client needs a Will or Trust – but we listen to your individual needs and help you find what is best for you! There may be several options available that will accomplish your goals — costing less now (or less for the client’s beneficiaries in the future).
When you execute a Power of Attorney for finance, you designate someone to make financial decisions on your behalf when you are unable to do so for yourself. You decide, in advance, how broad or narrow your agent’s power will be, when the power may be exercised, and for how long the power may be exercised.
As with a Power of Attorney for healthcare, planning in advance for the unexpected provides you and your loved ones with peace of mind, and ultimately is less expensive than a court-ordered guardianship.
What if you are in a second marriage? Have children from your first marriage? Also have children from your second marriage? Do you want to treat all of the children the same? Are there certain family “heirlooms” the children from your first marriage should inherit? How will you ensure that your wishes in this regard are honored? We can guide you through your individual circumstances.
Preparing a will for Texas residents is the simplest form of estate planning that ensures your final wishes are carried out after you die. You must have an experienced lawyer on your side!
An Advance Directive, also referred to as a Living Will, outlines your wishes for medical treatment in the event you are diagnosed with a terminal illness, such as traumatic brain injury or cancer.
By executing an Advance Directive, your loved ones are relieved of the burden of deciding whether to “pull the plug” because you have already made that decision.
Many clients believe that probating a Will (that is, going to court) is expensive, and therefore, reduces the amount of money inherited by beneficiaries. The cost of probating a Will is directly related to the amount of court supervision specified in your Will and Texas provides for “independent” and “dependent” administration.
At Rath Law PLLC, we provide cost-effective solutions and Letters Testamentary so your estate is maximized.
A Health Insurance Portability and Accountability Act (“HIPAA”) authorization allows you to specify the individuals who can receive health-related information about you. But unlike a Power of Attorney for healthcare, a HIPAA authorization does not give the named individual(s) any authority to make healthcare treatment decisions for you.
A HIPAA authorization allows you to provide relatives and friends with access, during a specified period of time, to information about your condition. By making this decision in advance, this can help ease anxiety for those who care for you.
Letters Testamentary give the executor of your Will the power to transfer ownership of assets not in your Trust, such as automobiles, to your beneficiaries.
The document used by a corporation to manage the “big picture” of a corporation is called the By-Laws, which details the title and number of officers a corporation will have, the number of individuals who sit on the corporation’s board of directors, how shareholders are notified of shareholder meetings and the like.
An Operating Agreement represents the “By-Laws” for a limited liability company and may contain many similar provisions. The difference is that there are certain provisions that must be contained in an Operating Agreement that are not required in a corporation’s By-Laws. The Operating Agreement, much like a corporation’s By-Laws, provides the members or managers of the company the “road map” for operating the business.
A Special Needs Trust (also called a Supplemental Needs Trust) allows a parent, grandparent, sibling, or third-party to give assets to a physically or mentally challenged loved one without jeopardizing the loved one’s entitlement to public benefits.
Many public benefits, such as Medicaid, are needs-based and if a special needs applicant has too much money or too many assets, the applicant is ineligible for benefits. By placing the money a loved one would otherwise inherit through a Will to a Special Needs Trust, the loved one can qualify for and continue to receive public benefits.
Once a Special Needs Trust is created, it can be funded with a minimal amount. Over time, additional assets can be added in the form of cash, stocks, bonds, inherited assets, or a home. A Special Needs Trust is one option for parents who worry about what the financial security of their special needs child after they have passed.
Absolutely not. Each state regulates the business entities that do business in its state. A company formed in Colorado but doing business in Texas is called a “foreign corporation.” Texas has the right to require a “foreign corporation” to register with the State, and to comply with certain reporting and tax rules in order to solicit consumer and business customers in Texas. There can be severe penalties for a company that fails to properly register with the State.
A Revocable Trust is often promoted as a less expensive alternative to a Will. As noted above, this really should not be of concern to clients residing in Texas because Texas law provides for “independent” administration.
However, if you are the owner of a closely held business, a Revocable Trust may provide you with additional protection from the claims of business creditors.
A revocable trust can also provide parents with power “from the grave” in any number of ways. Are you concerned about the money-management skills of a child? A Revocable Trust may be an option for providing financial assistance, over time, to that child after you have passed.
Through a Revocable Trust, parents can provide for their minor children if the parents should pre-decease them. How? The parents can specify the individual(s) to be the trustee(s) of the trust, how successor trustees are chosen, the degree of trustee discretion with regard to disbursements from the trust, the purposes for which disbursements can be made, etc.
Thus, the parents control the disposition of trust assets to their children and grandchildren long after their deaths.
No. The State specifies the contents of the notice you must provide to your employees alerting them that you do not carry workers’ compensation insurance for injuries occurring on the job.
Rath Law PLLC also offers the preparation of Pet Trusts for those individuals who do not have a relative or friend to rely upon to take care of a pet upon their death. A Pet Trust is similar to a Revocable or Special Needs Trust in that it is a way to provide funds for the continued care of a loved one after you have died.
You decide who will be the guardian of your pet(s) after you die, specify the level of care the pet will receive, and specify the individual who will be the trustee of the trust. And as with the Special Needs and Revocable Trusts, you decide who will receive any amount left in the trust after your pet(s) die(s).
One of parents’ worst nightmares is leaving their minor children orphans. Many parents reduce the risk of such a situation occurring by the preparation of a Will to (hopefully) identify the individual(s) you want appointed as guardian of the children, and the court will ensure your wishes are followed.
What happens if you do not have a will? The children will most likely be placed temporarily with a relative by child protective services. But at some point, a foster parent or guardian will be appointed for the children. The question then becomes whether the relative is qualified to be that guardian under Texas law. Do you want to take that risk?
Or what if you, a single parent, become unable to care for your child(ren) because of a physical or mental injury that is permanent, leaving you unable to physically and/or financially care for your child(ren)? How will you ensure the safety and economic welfare of your child(ren)?
Fortunately, Texas law allows parents to designate a guardian for their child(ren) before the need ever arises. If a guardian designation is prepared, then state law requires that the court appoint the person named in the document to serve as guardian, even if someone else may be entitled to serve as guardian.
There are only 2 exceptions under Texas law. In both cases, the court must find that the person designated to serve as guardian (1) is disqualified; or (2) would not serve the child(ren)’s best interests. At Rath Law Office, we think you will agree that providing for the safety and welfare of your child(ren) is of the highest priority! And your highest priority is our highest priority!