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San Antonio Express-News, October 10, 97

What can a Will do for My Mother?

© 1989-2004, Paul Premack

Dear Mr. Premack: My father is married for the second time, and both of them are in poor health. I am my father's only child, and his wife has only one child. They don't seem to hear me when I explain the importance of having Wills, which neither of them has now. Can you explain what happens when a person dies without a Will? Also, what is the difference between a "Will" and a "Living Will?" Finally, my stepmother wants to be buried with my father, but her son insists on cremation. Can a Will help in that situation? - M.S.P.

I've received several questions lately about Wills, but yours adds some interesting extras. Dying without a Will is called being "intestate." In that case, a set of laws contained in the Probate Code define who-gets-what. In this situation, the law would require several things:

First, when either your father or his wife die, that person's estate must be brought before a Judge. While some very small estates may be able to use other means, the legal process in this case could be quite complex, time consuming and unnecessarily expensive. It would involve at least two lawyers. The court would determine the identity of the heirs and what portion of the estate each heir is to receive. If the estate owes any debts, it may also have to go through a court-supervised administration.

All this legal procedure takes time and costs money. It can be avoided or trimmed to a bare minimum with proper Wills.

Second, since each parent has a child from a prior marriage, that child has a valid claim to much of the deceased parent's estate. If your father and his wife choose not to make Wills, they are essentially "disinheriting" each other. They should ask. "If I die, can my spouse survive without my financial assistance?" If the answer is "no," then remaining intestate is the wrong choice.

You ask the difference between a "Will" and a "Living Will." A "Will" disposes of assets upon a person's death and contains a plan for settling their final affairs. A "Living Will" is a medical directive that artificial life support should be withheld or withdrawn if a patient is terminally ill. The title "Living Will" has retained popular use, but the correct (and less confusing) name for this legal document is a "Directive to Physicians."

Finally, you ask about funeral instructions. Your stepmother has the right to have her remains handled according to her wishes. Many people elect to use their Will to communicate burial instructions, and those instructions are legally binding. However, at times a Will won't be read until after the funeral, which makes the instructions superfluous.

Perhaps a better approach is to either 1) prearrange her burial with a funeral home, or 2) have her sign a Power of Attorney under section 711.002 of the Texas Health and Safety Code. This provision allows her to appoint an Agent with power to arrange her burial. No one would be authorized to contradict that agent's instructions. She could thereby avoid cremation, and be buried with her husband as she wishes.

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Disclaimer: This column answers a specific legal question offered by an individual in the South Texas area. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice that meets your individual needs. It may give you a solid basis for discussion with your own attorney. Also, please be aware that laws change. You should consult with your personal attorney before you take any action on this or any legal issue.



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