San Antonio Express-News
April 19, 2005

Moving to Texas

copyright 2005, Paul Premack

The legal ideas behind Wills, Powers of Attorney and other planning tools are similar throughout the U.S., but each state has unique laws and procedures to be considered.

Moving here from Iowa, you must take into consideration that Texas is a community property state. In Iowa, what you earned belonged to you and what your husband earned belonged to him. In Texas, whatever you earn during your marriage is owned half by each spouse unless you have a written agreement to the contrary. Each asset you acquired while living in Iowa will, in Texas, legally be assigned community or separate character based on what it would have been if you lived in Texas when you acquired it.

In your Iowa Will you could dispose of any assets you owned, and the same is true of your Texas Will. However, in Texas the assets that you own are different than in Iowa. Here, you own your half of the community property and any separate property you may still have. You should rethink your Wills to accommodate the differences in ownership.

Another reason to prepare new Texas Wills is to adjust for the special procedural laws contained in the Texas Probate Code. Probate can be a very straight-forward process in Texas if your Will (a) waives the executor’s bond, (b) waives court supervision of your executor, which we call "independent probate", and (c) contains a self-proving affidavit that conforms to Texas law.

Your Iowa Durable Power of Attorney may not work well in Texas. Each state has different technicalities for making the power of attorney acceptable for conducting business. Both versions allow you to appoint an agent (and alternates) to handle your business and financial matters if you become disabled. If you are planning to have some financial accounts in Texas and to keep some financial accounts or land in Iowa, you should have valid powers of attorney under both of the states’ laws.

If you have Advance Medical Directives, you should also update them to accommodate Texas law. As the Schiavo case so graphically pointed out, great strife can result if you do not have directives that comply with the laws of the state in which you reside.

Texas law allows you to consider three types of Advance Directives. They are:

1) A Medical Power of Attorney, in which you appoint an agent (and alternates) to make your medical decisions if you become too ill to understand the risks and benefits of a proposed treatment;

2) A Directive to Physicians, in which you can instruct that life support should be withdrawn or withheld under specific circumstances, or conversely in which you can instruct that life support be used even if others think it is futile. The point is to make your own choice.

3) An Out-of-hospital Do Not Resuscitate Order (DNR) that allows you to refuse resuscitation. When properly signed, this prevents EMS or other emergency care providers from bringing you back with CPR or other medical techniques.