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Here's a complete guide to every critical medical, legal, and estate planning document and relevant state law for Texas. Download these forms and get started with Pillar to organize all of your most important documents in one safe, secure, easy-to-use online storage solution
February 2, 2021
Give your loved ones the gift of planning your estate for your death and incapacity. In all seriousness, planning for our absence from our families and lives can be sobering and sad, but it is one of the most helpful things you can do for those you leave behind.
If you live in Texas, there are a lot of specific state laws that deal with inheritance tax, medical forms, and end-of-life wishes. Here's a complete list of all the most important forms, documents, and state laws you need to know about to ensure your medical wishes are followed and that the things you leave behind find their new owner.
The Texas Administrative Code requires that each licensed physician maintain the medical records of a patient for at least seven years from the last treatment. If the patient is a minor, the physician must keep the records until the patient turns 21, or from seven years from the last treatment date, whichever is longer.
The administrative code also establishes limitations for the copy and research costs that a physician’s office may charge when providing copies of medical records. When requesting records, here are some key numbers to know:
Death certificates are an official record of the date of death and cause of death of a deceased person. The probate court, banks, life insurance companies, and other entities related to the wrapping up of affairs may require a copy.
There are three ways to obtain a death certificate:
Texas recognizes that adults have the fundamental right to make decisions regarding their health care, including the implementation or withdrawal of life-sustaining medical treatment, and that these rights should be respected through all stages of illness
By completing these documents, you can ensure your wishes are followed, even if you are no longer able to voice them. They also relieve your loved ones of the burden of trying to guess your wishes or make difficult decisions on their own.
The Texas Advance Directives Act creates a form and codifies the concept that written declarations regarding medical instructions should be honored, even if the patient is incapacitated. Use of the below form is not required, but any declaration, including the statutory form, must be signed in the presence of two witnesses not related by blood or marriage.
Texas also has a document similar to a living will but specifically for mental health treatment. Adults can designate what medications and treatments they prefer.
In the Texas Administrative Code, the state permits patients to create an out-of-hospital do-not-resuscitate order. The law defines out-of-hospital as a:
“location in which health care professionals are called for assistance, including long-term care facilities, in-patient hospice facilities, private homes, hospital outpatient or emergency departments, physician’s offices and vehicles during transport.”
It addresses CPR, electrical pulses and shocks, and artificial ventilation.
Texas does not permit physician-assisted suicide.
A durable power of attorney for health care allows another authorized person to make decisions regarding your healthcare, and this form designates that decision-maker, also called the attorney-in-fact.
When a power of attorney form is designated as durable, that means that the attorney-in-fact’s power remains even after your incapacity. Non-durable powers of attorney terminate at the onset of incapacity of the principal. The Texas Advance Directives Act creates the following form:
Texas also has a statutory power of attorney form for financial and property issues:
To designate yourself as an organ donor, register with Donate Life Texas or so indicate the next time you renew your driver’s license.
Probate is an umbrella term for the legal process of settling the estate of a deceased person (the decedent) with or without a will. Property that passes directly to the new owner by the right of survivorship, trusts, or payable-on-death beneficiary arrangements are not subject to probate procedures and are called non-probate property.
In Texas, much of the probate process takes place outside of court as the executor inventories the estate, determines heirs, and settles the debts before releasing funds or property to heirs. The court’s primary roles are to give the executor or personal representative authority to act via an order of appointment and to settle any disputes that arise.
Texas is not a Uniform Probate Code state. Instead, Texas has its own Estate Code, and that code creates multiple tiers of administration that vary from minimal court involvement to full supervision. Generally, the more conflict and distrust among heirs, the greater the court’s involvement.
Estates without a will and consisting of no real estate and probate property valued at $75,000 or less qualify for a simplified procedure called voluntary informal administration of small estates. Read more about the affidavit process from Texas Law Help, a project of the Texas Legal Services Center.
Texas Estates Code 451.003 makes special provisions for estates with assets less than the total of the family allowance after medical bills and funeral expenses have been paid. Another section of the estate code has a simple and less expensive option for the transfer of assets in situations with a will, no debts, and no Medicaid claim against the estate.
There are several types of trusts, including spendthrift and special needs trusts, but the two most commonly used trusts are living and testamentary trusts. Laws governing all types of trusts can be found in the Texas Trust Code.
A living trust (or inter vivos trust) is a trust that you make while you are alive. Beneficiaries of the trust receive the trust assets upon your death, or at another time determined by the terms of the trust. Property in the trust will be considered non-probate, and will be disposed of according to the terms of the trust rather than by will or probate law.
Trusts can be created by a will upon the death of the Settlor (the person who funds the trust).
The will directs assets into the trust, and the trust acts as a vessel for holding the assets until they are distributed to beneficiaries. Trusts are commonly used to hold money for children or for disabled people.
The basic requirements to create a valid will in Texas are:
Texas has a few options for creating a self-proving will and the need of witnesses. Read the full statute for more information for your specific situation.
Holographic (handwritten) wills are valid when certain circumstances are met. One is to have a will entirely in the testator’s handwriting and either a self-proving affidavit (see the statutes above) or two witnesses that can attest to the veracity of the handwriting. Oral wills are not valid.
Texas adopted the Uniform Fiduciary Access to Digital Assets Act in 2017. The Act permits users to grant authority in their wills or other writing to their personal representative or other fiduciary to access their online accounts. This can take several forms depending on the discretion of the custodian of the digital accounts. The custodian may provide:
A user may designate a recipient in a will, trust, or power of attorney.
Texas does not impose a state estate tax or estate income tax. However, you may still owe federal taxes on an inheritance. For the 2021 tax year, the federal estate tax threshold is $11,700,000.
Commonly, there are three types of taxes that may be involved when dealing with the estate of a deceased person:
For information about filing these returns, review the IRS publications for filing final returns and for filing estate income taxes.
Texas has a number of unique state laws when it comes to your medical records, inheritance taxes, wills, trusts, and estate planning. Navigate the strict probate process and lax estate tax with confidence with your customized (and organized!) Pillar account. You can scan, store, and share your most important state documents when you need them with Pillar's secure and easy-to-use online storage tool for you and your family.
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