Dear Mr. Premack: We are going to be moving my father to Texas. My mother passed away. My father owns a home in another state. None of us want him to sell his home, but he will become a Texas resident and will not be using or living in the former house. What type of legal pre-planning or planning do we need to do? JG
I assume that your father is competent, desires to move to Texas to be closer to his family, and is a full participant in the decision to move. If he is not competent, you must either have been granted Durable Power of Attorney under his current state’s laws or you must seek to become his court appointed Guardian in the state of his current residence.
If he is competent or if you have legal authority to act for him, a huge decision is “do I sell the old house?” and “do I buy a new house?” If he keeps the old house, after he dies his estate may have to go through probate in his former state to allow his Executor to sell the house. There are legal solutions, like creating a Revocable Living Trust to hold title to the non-Texas real estate. When title is held in trust, there is no need to for probate in the old state. Instead, the Trustee can pass title to the house according to your father’s instructions. He may even desire that title remain in Trust after his death to facilitate ongoing management, rental and financial impacts from the house.
If he has legal capacity, your father needs to consult with an attorney in the new locale for a review of his Will, his Durable Power of Attorney and his Medicaid Directives to be sure they work under Texas law.
Wills travel poorly across state lines. Each state has its own probate statutes which form the basis for drafting Wills and handling administrations in that state. Most states have coordinated their laws regarding the fundamental requirements for a “valid” Will (that is, the Will must be written, must be dated, must be signed and have two witnesses). But having a Will that is just “valid” is not good enough; the Will should be fine-tuned to Texas state laws which provide procedural efficiencies. Without adjustments to take advantage of these efficiencies, the survivors may have to spend a great deal more time and money on probate.
Expect Durable Powers of Attorney to be changed to meet the requirements of Texas law. The Texas Estates Code contains an entire chapter regarding the structure and types of authority which can be granted to an Agent. Each state’s law is significantly different. Also, institutions in Texas may be wary of accepting a Durable Power of Attorney based on another’s state’s laws.
Advance Medical Directives like Medical Powers of Attorney and Directives to Physicians should also be changed to match Texas law. Once your father is a Texas resident, he should have Texas documents. Still, Texas law does state that “An advance directive or similar instrument validly executed in another state or jurisdiction shall be given the same effect as an advance directive validly executed under the law of this state.” So technically, your father’s old Advance Directives are valid in Texas, but may not be efficient or easy to use in Texas.
Someday, you may be looking at long-term care facilities if your father’s health fails. If he cannot outright afford to pay for a nursing home, then Medicaid may come into the equation. If he decides to keep the house in his former state, he will have trouble with Texas Medicaid; the house will be an excess resource which disqualifies him from Medicaid benefits.
Funeral plans should also be reviewed. Did your father have arrangements with a funeral home in his prior state? Did he have a pre-paid plan, or own a burial plot there? When he moves to Texas, you must find out if he still wants to be buried back home (his wife / your mother may be buried back home). It is expensive to have a multistate funeral, and he may be willing to shift his funeral plans to his new location.
Before he moves to Texas, it would be smart for him to consult with a Texas Certified Elder Law Attorney so he can weigh his options before committing to the move.
Paul Premack is a Certified Elder Law Attorney in San Antonio. His firm has offices in Texas and Washington and handles estate planning for all ages, probate law and business entity formation issues. Submit estate, probate, elder law and LLC questions, or visit the archive of past legal columns, at www.Premack.com.
This column first appeared in the San Antonio Express-News on its MySA.com website. To read the column there, click here.