Most people think having a will means their estate planning is done. It isn't. That's one of the most important things Houston estate planning attorney Kim Hegwood wants families to understand — and it's something she learned firsthand, not just in her law practice, but in her own family.
Kim is the managing attorney at Your Legacy Legal Care and has been practicing elder law and estate planning for nearly 30 years. When her grandparents began to decline in the mid-2000s, she stepped in to manage their care, coordinate medical appointments, and handle their finances. Her grandparents had worked with an attorney for years. They had wills. What they didn't have were the documents that actually matter when someone is still alive but can no longer manage their own affairs — and that gap nearly cost them everything.
We recently sat down with Kim on the Market Talk podcast to talk about what a complete estate plan actually looks like, and what most families are missing.
A Will Only Covers What Happens After You Die
The hardest part of estate planning isn't death — it's everything that comes before it. If you become incapacitated due to illness, dementia, a stroke, or an accident, who has the legal authority to pay your bills, access your accounts, make medical decisions, and ensure you're getting the care you want?
Without the right documents in place, the answer might be no one — or worse, the wrong person.
A complete estate plan addresses incapacity with four key documents alongside a will:
A Statutory Durable Power of Attorney gives a designated person — your agent — the legal authority to manage your finances. Without it, even your closest family members cannot access your accounts, pay your mortgage, or handle your affairs. It doesn't matter how well-intentioned they are or how obvious it seems that they should be the ones helping. Without this document, they have no legal standing to act.
A Medical Power of Attorney designates who makes healthcare decisions on your behalf when you cannot. Without it, that decision defaults to whoever is next in the legal hierarchy — which may not be the person you would choose, and can set the stage for serious family conflict.
A HIPAA Authorization allows your designated agent to access your medical records and communicate with your healthcare providers. Without it, even a spouse or adult child accompanying you to every doctor's appointment may be legally blocked from receiving information about your care.
A Directive to Physicians — also called a Living Will or Advance Directive — spells out your wishes for end-of-life care if you are terminally ill or permanently incapacitated. It takes the burden of that decision off your family.
As Kim puts it: "We plan for incapacity way more than we plan for death. Death is easy. It's that incapacitated state that you have to plan for."
Don't Wait to Sign These Documents
The single biggest mistake people make with incapacity documents is waiting too long to sign them. These documents must be executed while a person is mentally competent to do so. Once someone is in cognitive decline — even early-stage dementia — getting valid documents signed becomes complicated, and in some cases impossible.
Kim updates documents annually for clients who have received an early dementia diagnosis, for as long as they remain competent to sign. That last valid document is the one they have to live with, so keeping it current matters enormously.
There's another practical concern: financial institutions sometimes reject powers of attorney that are more than a few years old. Having documents that are current, properly drafted, and on file avoids unnecessary delays during an already stressful time.
One more thing worth saying plainly: only designate someone as your agent if you trust them completely. If you have any doubt, don't put them on the document.
Wills vs. Trusts: What's the Difference and Which Do You Need?
The right answer depends on your family situation, your assets, and your goals. But here's what most people don't realize: very little actually passes through a will. Retirement accounts, life insurance policies, bank accounts with beneficiary designations — all of those transfer outside of probate, based on whoever is named as beneficiary. A will primarily governs real estate and assets that don't have a beneficiary designation.
One of the most common and costly mistakes we see is clients who have been told to name "the estate" as the beneficiary on their financial accounts. This forces everything through probate, which is public record, exposes assets to creditors, and adds time and expense that is almost always unnecessary.
Trust-based planning keeps things private. Assets held in a properly funded trust pass outside of probate entirely, without a public filing. A trust also allows you to set detailed instructions for how and when beneficiaries receive their inheritance — which matters a great deal when you're thinking about young beneficiaries, family members with spending challenges, or a blended family situation.
Speaking of blended families: if you are in a second marriage and you have children from a prior relationship, will-based planning is genuinely dangerous. If your will leaves everything to your surviving spouse, they can legally change their own beneficiary designations after you pass — and your children may receive nothing. A properly structured trust prevents this by setting defined distributions that cannot be undone.
Trusts can also include remarriage provisions requiring a prenuptial agreement before a surviving spouse can remarry — a protection that ensures the assets you built together ultimately reach your children.
Revocable and Irrevocable Trusts: What's the Difference?
A revocable living trust can be changed or revoked at any time during your lifetime. It uses your Social Security number, requires no separate tax return, and avoids probate. While you and your spouse are both living and competent, it functions essentially like your own account — you maintain full control. When the first spouse passes, the trust typically becomes irrevocable, which provides asset protection going forward.
An irrevocable trust cannot be changed once executed, but that's the point. Removing assets from your direct ownership means they are no longer countable for Medicaid eligibility or exposed to creditors. If long-term care is a concern, an irrevocable trust needs to be established at least five years before you apply for Medicaid, due to the look-back period. Waiting until a crisis hits is too late.
One tool Kim's firm uses frequently is an income-only irrevocable trust. The grantor retains the right to income from the trust assets, but the principal is protected. It still uses your Social Security number — no separate tax return required — and it includes provisions for adjusting trustees and beneficiary terms if circumstances change. It provides meaningful protection without the administrative burden people fear.
For clients in second marriages with significant retirement accounts, a retirement trust can be a powerful solution. It names the surviving spouse as primary beneficiary entitled to required minimum distributions during their lifetime, with the remainder passing to children after the spouse's death. It takes care of both the surviving spouse and the children from the prior relationship with a single instrument.
Guardianship: Why You Want to Avoid It at All Costs
Guardianship is what happens when someone loses capacity and has no valid power of attorney in place. A court must intervene, appoint a guardian, and supervise virtually every financial decision that guardian makes going forward.
It is expensive, slow, and burdensome in a way most families don't anticipate.
Getting through the first year of a guardianship estate typically costs $7,500 to $10,000 or more, after an initial retainer of $4,000 to $5,000. After that, the guardian must file annual accountings with the court, request a monthly allowance for expenses, and get court approval before spending outside that allowance. In Harris County, the probate courts are currently running three to four months behind on approving annual accountings. Every step requires an attorney. Every receipt must be saved and accounted for.
Compare that to the cost of a well-drafted power of attorney — typically around $1,000 — and the case for planning ahead makes itself.
The most common paths to guardianship: a person who never had legal capacity, such as a child with a disability who turns 18 with no legal plan in place, and a person who had capacity but declined without ever signing the documents that would have made guardianship unnecessary.
Special Needs Trusts: Planning for a Loved One with a Disability
If you have a child or dependent with a disability, a special needs trust is one of the most important things you can put in place. It allows you to set aside virtually unlimited assets for that person's benefit without disqualifying them from Medicaid, SSI, or other government benefits. Benefits eligibility is based on assets the individual owns outright — assets held in a special needs trust don't count.
The trust can include care manager provisions requiring regular visits to check on the beneficiary's wellbeing, a trustee handbook with detailed instructions about the person's needs and preferences, and protections ensuring that someone is always watching over their care and quality of life.
One thing families frequently overlook: if grandparents or other relatives have estate plans that leave assets directly to the person with a disability, those plans need to be updated. Even a well-intentioned inheritance left directly to a beneficiary with a disability can wipe out their government benefits overnight, or require an emergency corrective trust that costs far more than getting ahead of it would have.
Set the trust up early. Even if there are minimal assets in it today, having the trust established means that family members, friends, and even siblings can name it as a beneficiary on life insurance policies — building the beneficiary's long-term security over time at a very low cost.
If You Haven't Done This Yet, Start the Conversation
The hardest part for most families isn't the paperwork — it's starting the conversation. Kim's advice: if you've recently done your own estate plan, tell your parents about it. Share that it was a positive experience and that you feel better having it done. That's often all it takes to open the door.
And once you have a plan, don't put it on a shelf. Estate plans become obsolete. Named agents pass away, assets change, laws change, family circumstances shift. One family this year came in with a plan that hadn't been reviewed since 1975 — virtually everything in it was outdated. Review your plan regularly and update it after any major life event.
If you're ready to take the next step, we'd encourage you to reach out to Kim's team at Your Legacy Legal Care or to our team at Royal Harbor Partners. Getting the right professionals working together on your behalf — legal and financial — is how you make sure your plan actually does what you intend it to do.
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