Houston Estate Planning and Elder Law Attorney Blog

Is Creating a DIY Will a Good Idea?

Published on: October 31, 2024 | By David W. Miller

In this day and age, it can be tempting to use technology to bypass legal advice. Many individuals, for example, tell us that they have considered creating a “DIY will” online instead of consulting a Houston estate planning attorney to undergo the process. Is this a good idea? At McCulloch & Miller, we always offer the following advice: a DIY will works…until it doesn’t work.

What is a DIY Will?

A DIY will is a “do it yourself” will or estate planning document that you can draw up online. Many online tools will have you input your basic information and then proceed to provide you with a will. DIY wills can also take the form of handwritten or typed estate planning documents that you write without consulting an attorney. Many people, for example, remember reading in the news about Aretha Franklin’s infamous handwritten will that her family members found in her couch after her passing.

What are the Possible Issues?

At our firm, we see three main issues that pop up with DIY wills. First: the will might not actually be valid. In order for a probate court to approve the will and allow beneficiaries to inherit a decedent’s assets, the will must be executed properly, self-proving, and written down. Many DIY wills do not meet these basic elements.

Leaving Money to a Child Who Isn’t Financially Savvy

Published on: October 28, 2024 | By David W. Miller

Leaving Money to a Child Who Isn’t Financially Savvy

Many of our clients are interested in leaving money to their children when they pass. For some clients, though, there is a question about what to do when their child is not financially savvy. Do they leave unrestricted assets for the child anyway? Are there tools they can use to restrict the funds? Today, we review the basics of what you can do to set your child up for financial success even if he or she is not financially savvy. As always, for specific advice tailored to your circumstances, contact a Houston estate planning attorney you can trust.

Establishing a Trust

For some children, it works well to give unrestricted access to assets in a will or estate plan. If you do not want to go that route, however, many clients choose to leave their assets in a trust. Establishing a trust offers a level of protection for the assets you are leaving behind.

You could, as part of this process, designate a trusted individual as the trustee, and you could establish protocols for how often (and for what purpose) your child could access money from the trust. The trust could be established for educational purposes, a wedding fund, yearly travel, or housing costs. You could also implement distribution triggers as part of the trust, which would allow your child to access funds once he or she reaches certain life stages (for example, celebrating a specific birthday or finishing school).

Who Inherits a Texas Estate if There is No Will, and Why Does It Matter?

Published on: October 25, 2024 | By Thomas W. McCulloch

As our clients know, we strongly recommend that every individual in Texas takes the time to draft, write, and execute a will. The benefits are too many to count: for example, wills and estate plans help you make decisions about your assets; they allow for easy transfer of assets to loved ones; they help your family avoid conflict down the road; and they ensure that you are thinking about your loved ones’ long term futures in a sensible and legally prudent way. For those without a will, though, the state of Texas decides who will inherit the decedent’s estate. Today’s blog post reviews who inherits a decedent’s estate in Texas when that decedent dies without putting his wishes in a will.

Key Terms: Intestacy and Laws of Intestate Succession

“Intestacy” by definition, is the state of dying without a will. In Texas, the “laws of intestate succession” dictate to inherits a person’s assets if that person dies without a will. Note that these laws do not apply to beneficiaries who know that a will exists but that disagree with the contents of the will. These laws are only for those who die without any kind of valid will.

In Texas, laws of intestate succession say that if a married person dies without a will, one-third of his assets go to his spouse and two-thirds of the assets go to his children. If an unmarried person dies without a will, the assets go first to the decedent’s children, then to his parents. Next in line are the decedent’s siblings, then his grandparents.

Are Beneficiary Designations Enough in a Texas Estate Plan?

Published on: October 21, 2024 | By Thomas W. McCulloch

Several weeks ago on our blog, we discussed the importance of beneficiary designations and how they relate to estate planning. Is it true, though, that beneficiary designations alone can create a comprehensive estate plan? The answer, unsurprisingly, is no. But what else does an estate plan require? And how can you tell what should be listed under a beneficiary designation vs. what should be included in other provisions of the estate plan?

What is a Beneficiary Designation?

By way of review, a beneficiary designation is the act of naming an individual who will inherit a part of the designator’s estate. Beneficiary designations apply to several kinds of financial projects, including life insurance policies, retirement accounts, and financial accounts. Importantly, beneficiary designations do not apply to many other kinds of assets.

What Else is Needed in an Estate Plan Besides Beneficiary Designations?

Because the beneficiary designation applies only to a subset of assets, it is important to utilize another tool. such as a will or trust, when drafting your estate plan. Wills, for example, cover all of your assets, and trusts can help you avoid probate while still passing money and property onto your loved ones. In combination with at least one of these tools, the beneficiary designation helps your heirs understand how you intend to distribute the assets available to you. It is wise to always keep an eye on your beneficiary designations, in case your plans or priorities change down the line.

Three Scenarios When You May Need a Power of Attorney

Published on: October 14, 2024 | By David W. Miller

woman retirement risks and estate planning

By definition, power of attorney is a legal document that gives one individual authorization to work on another individual’s behalf. This authorization can extend to financial decisions, medical decisions, or (if the document provides for it) all decisions pertaining to a person’s wellbeing. On today’s blog, we review three situations in which you may need a power of attorney, as well as why it is important to include in any basic will or estate plan.

Scenario #1: You Become Incapacitated and Need to Make Medical Decisions

If you become physically incapacitated and you are unable to make decisions on your own behalf, someone else will have to step in for you. Without a power of attorney, any person (including a spouse) would have to go through a court to gain explicit permission to make decisions for you. By executing a power of attorney, though, you can name who you would like to decide things about your health such as whether doctors should resuscitate you, what kind of medicine you want to receive, and how long you would want to exist in a vegetative state. While these situations are often unpleasant to think about, it is important to plan ahead of time for their possible occurrence.

Importantly, this kind of power of attorney only kicks in when you are truly incapacitated, i.e. you are unable to make any decisions at all. It does not apply when all that is happening is that the people in your life disagree with the decisions you are making.

A Primer on Long-Term Care for 2024/2025

Published on: October 7, 2024 | By Thomas W. McCulloch

As time goes on, long-term care gets more and more costly for Americans. Unfortunately, it is all too common that we have clients come to us, worried about how they will pay for the long-term care facility they might eventually need. Today, we review the basics of what you need to know in this day and age about planning for long term care. As always, with more specific questions, speak with a Houston estate planning attorney that can help you figure out the best path forward for you.

Start Your Planning Early!

We cannot emphasize this point enough: plan early and often for your long-term care needs. If you are wondering: is now too early to start saving for my old age? The answer is, definitely not! With rising prices and an uncertain economy, it is more important than ever to begin thinking now (no matter how old you are) about how you might pay for your long-term care.

Think Through Ways to Fund Your Long-Term Care

The basic options are as follows for funding your long-term care: you can pay privately, electing to pay a nursing facility out of pocket. This is, of course, the most expensive option, but it also provides for maximum flexibility. Secondly, you can pay with some kind of long-term care insurance. This means that you need to get a policy in place early, which can be expensive and requires planning far in advance. Thirdly, can access Medicaid or other public benefits to pay for your long-term care. To access Medicaid, you need to position your assets in a way that allows you to qualify for this government funding – again, this can require careful planning and expert advice.

What is a Living Will, and When Might You Need One?

Published on: October 7, 2024 | By David W. Miller

It is important to familiarize yourself with different tools and strategies in the world of estate planning. Each person’s estate is different, and each person’s priorities are different when drafting their estate plan. One tool that many individuals often overlook is the living will. On today’s blog, we review the basics of the living will, as well as when you might need one and how you can go about beginning to attain one.

The Living Will

By definition, a living will is a legal document that lists your wishes with regards to medical treatment in the event of your incapacitation. If you become seriously ill, unconscious, or cognitively impaired, you will need a living will to instruct your loved ones on your medical preferences. The living will does not take effect when you are sick but still able to make decisions for yourself. It only applies when you are strictly incapacitated, and you are unable to decide what kind of care you want or need.

Some clauses that individuals typically include in a living will include: a provision about possible resuscitation, instructions regarding a ventilator or feeding tube, and the designation a healthcare proxy to make decisions in your best interest. Importantly, your living will should be as specific as possible so that there is no confusion on how you would want to move forward regarding your medical care. You should also make sure to update your living will every few years, in case there are any changes to your health or to your own individual goals.

The Importance of Beneficiary Designations

Published on: September 30, 2024 | By Thomas W. McCulloch

As you think through your estate plan, it is important to be thoughtful about your beneficiary designations, especially as they pertain to your life insurance policy, retirement plan, and financial accounts. What’s more, you should consider updating your beneficiary designations regularly, in order to make sure your estate plan reflects your current circumstances and wishes. On today’s blog, we cover some of the basics regarding beneficiary designations and how they relate to your estate plan.

What is a Beneficiary Designation?

In the legal world, a beneficiary designation is the act of naming an individual who will inherit any part of the designator’s estate. When the designator dies, that person’s assets then go to his or her named beneficiaries.

Why is Beneficiary Designation Important?

If you fail to name a beneficiary or beneficiaries in your estate plan, the state of Texas is left to divide your assets according to the laws of intestacy. These laws essentially dictate which members of the decedent’s family receive the estate. The order of intestacy does not always reflect the decedent’s wishes, and it makes it difficult for other family members and loved ones to contest the distribution of assets.

Texas Intestacy Laws: What You Need to Know

Published on: September 30, 2024 | By David W. Miller

In Texas, if a person dies without a will or estate plan, that person’s assets are distributed “intestate.” This means that the probate court distributes the person’s estate in accordance with Texas’s pre-set laws and order of inheritance. While we certainly do not recommend leaving things to chance and opting not to write a will or estate plan, it is worth reviewing the state’s intestacy laws to know what is at stake if you die without any kind of plan in place.

Possibility #1: Dying Intestate Without a Spouse

If a person dies with no will, and if that person did not have a spouse, his estate will go first to his children. In the absence of children, his estate will go to his parents; if only one parent is living, the estate will go to both the surviving parent and to the persons siblings. Without parents, the estate goes to the person’s siblings. And, finally, if the decedent has none of these relatives alive, the estate goes to the person’s grandparents.

Possibility #2: Dying Intestate with a Spouse

Dying without a will but with a living spouse is a bit different. If the decedent has children, one-third of the estate will go to the spouse, while two-thirds will go to the children. If there are no children, the spouse inherits the personal estate in its entirety.

Estate Planning Basics: Joint Tenancy with the Right of Survivorship

Published on: September 22, 2024 | By Thomas W. McCulloch

One effective tool for property owners that are thinking through their estate plans is joint tenancy with the right of survivorship. While this form of ownership might not be right for everyone, it can certainly be an efficient, effective way to both maintain property and avoid probate down the line. Today, our blog offers some basics around joint tenancy with the right of survivorship, with the goal of helping you become well-versed in the strategy as you begin to think through whether it might be a tool you implement for your own assets.

What is Joint Tenancy with the Right of Survivorship?

Joint tenancy with the right of survivorship means that multiple individuals own a piece of property at the same time (“joint tenancy”). It gives each person an equal share of the property they own. Importantly, if one owner dies, the other owner becomes the sole owner (“right of survivorship”). If there are more than two owners and one owner dies, the remaining owners then take an equal share of the property upon the first owner’s death.

What are Some of the Benefits of Joint Tenancy with the Right of Survivorship?

One major advantage of this structure of ownership is that when one owner dies, the property does not have to pass through probate. Instead, ownership is automatically transferred. This can save significant time and money. It also allows the living owner(s) to own the property without any delay; that is, they do not have to wait for the completion of any legal processes before taking ownership of the property, since the property is already in their possession.