A Poor Prognosis? Call Your Estate Planning Lawyer!

I worked with a young couple last year. Both were in good health. They were happily married, had two small children, and were busy balancing their careers and young family.

Their plan was typical: If one died, they wanted the surviving spouse to inherit outright with minimal fuss. Their wills made an outright distribution to each other, but most of their assets could transfer outside of probate:  joint financial accounts were held with rights of survivorship, each spouse was named as the primary beneficiary of life insurance and retirement plans, and the transfer on death deed would transfer the deceased spouse’s interest to the surviving spouse without probate.

But life happened around the signing of their documents. Family members passed away. Work got busy. Thanksgiving and Christmas happened. They executed all their documents, made sure accounts were titled properly, and beneficiary designations were correctly made, but the transfer on death deeds slipped through the cracks. Although they were signed, they were not recorded in the property records.

Fast forward six months. The husband was diagnosed with an aggressive cancer and poor prognosis. He died just a couple of months later.

Estate planning is not a “once and done” undertaking. You should periodically review your documents with your attorney to ensure that you have your bases covered.

This is especially important if you’ve been diagnosed with a life-threatening illness, such as cancer, or a disease which will result in cognitive decline, such as Alzheimer’s disease or other dementias.

The “peace of mind” review should include matters such as:

  • Making sure that your Will and/or Trust distribute your assets according to your current wishes and have been signed in accordance with the Texas statutes
  • Confirming that powers of attorney are current and appoint those who you trust most to make medical decisions for you and handle your financial affairs
  • Double-checking beneficiary designations to ensure they coordinate with your Will or Trust
  • Verifying that financial accounts are titled properly and that any necessary POD or TOD designations have been made
  • Making sure that transfer on death deeds have been recorded in the appropriate counties.

Planning for the worst is heartbreaking for the client and the lawyer. But consulting with your lawyer at this critical stage can ensure your affairs are in order so that your estate passes to your loved ones in the most expeditious way possible.

Having an unrecorded transfer on death deed is not the end of the world. With a valid Texas Will, a probate proceeding or probate alternative can transfer title to the surviving spouse. But such a proceeding could have been avoided completely by recording the transfer on death deed before death.

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