Q: How does moving to Texas affect my existing estate-planning documents?

A: If Texas becomes your permanent home, upon your death your will must be probated here — not in the state where you used to live. As long as your present will bears your signature and is signed in your presence by two or more witnesses, it can be admitted to probate in Texas. Additionally, your will should have a “self-proving affidavit” so that the judge can accept it without bringing the witnesses into court.

Q: I have also signed a durable power of attorney. Is this document usable in Texas?

A: If your power of attorney is valid in another state, it is valid in Texas. However, you may have to insist that it is valid and must be recognized. To avoid such problems, you may wish to sign a Texas durable power of attorney. Almost all Texas durable powers of attorney now follow the same form. Texas banks and other financial institutions accept these forms without question.

Q: I transferred my assets to a living trust; then I moved to Texas. Do I need to change the trust?

A: Because living trusts avoid probate, they have become standard estate-planning documents in states that have prolonged, complicated or expensive probate procedures. Living trusts are not routinely used in Texas, since Texas probate is generally simple and straightforward. A written, signed living trust will be recognized in Texas if it is valid under the laws of another state. It need not be modified simply because you have moved to Texas — with one exception. Texas is a community property state. You should have your trust(s) examined by a Texas attorney who can suggest appropriate modifications. Additionally, new houses and bank accounts should be titled in the name of the trust, or upon your death, these assets may have to pass through probate.

Q: My spouse and I each have our own bank accounts and other assets. We each want our individual assets distributed as we choose upon our deaths. I have heard that Texas is a community property state. How does this affect us?

A: Property that you owned prior to your marriage, that you received by gift, that you inherit, or that you receive as the result of a lawsuit for personal injury is your own, separate property. Property acquired in another state is treated as though you acquired it in Texas; thus, items that may have been separate according to the laws of that state may be community property in Texas. All other property, including income from your separate property, is community property that belongs equally to both spouses. Moreover, when income from your separate property becomes mixed up with community property, Texas law presumes that it is community property.

Unless the living trust is carefully drafted to take the laws of community property states into account, your spouse and his or herheirs could have a claim to assets that you thought were yours alone. You and your spouse can sign a written marital property agreement. In that agreement, you describe your assets, agree that they will remainseparate property, and agree that all income from those assets will be the separate property of the person who owns the assets. Suchan agreement is valid and enforceable in Texas. A verbal agreement between spousesis not sufficient; it must be in writing.

Q: I want my spouse to have all my assets upon my death. How can I ensure that our new home in Texas and our other assets pass automatically to my spouse?

A: One way to accomplish this is to title all your assets in the name of both you and your spouse, as “joint tenants with right to surviv-orship.” All assets titled in this way will pass automatically to the surviving spouse. You may sign a community property right-of-survivorship agreement. This is a formal, written agreement that is signed and filed in the county where you live. In that agreement, both spouses agree that all community property will pass directly to the surviving spouse. Persons or organizations who have custody of any of your property, such as banks and brokerage houses, are required to turn it over to the survivor. Such an agreement should not, however, be used if joint marital assets are valued higher than $1 million, as your heirs could owe estate tax upon the death of the second spouse.

Q: What happens if I die without a will in Texas?

A: If you die without a will in Texas, the state will determine who receives your property, and your heirs may face a burdensome, complicated and expensive probate process. An administrator may be appointed for your estate, and the court will hold a formal hearing to determine who your heirs are. Moreover, the court’s definition of your heirs may not be the same as your definition. For example, if you have children from a previous marriage, those children — not your spouse — inherit your one-half interest in the community property of you and your spouse.

Q: What about advance medical directives, such as the medical power of attorney and the directive to physicians that I signed before moving to Texas?

A: It’s a good idea to discuss these issues with a Texas attorney who can suggest appropriate modifications.

For additional information on this topic, consult The Senior Texan Legal Guide, 4th Ed. by San Antonio attorney Paul Premack, or go to www.premack.com