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In a recent case before the Fourteenth Court of Appeals, two siblings asked for a decision regarding the assets left in their father’s estate. Originally, the siblings fought when one took longer than the other wanted to distribute funds from their father’s trust. Without clear guidelines for how to handle the father’s estate, the siblings found themselves in a legal battle that went on for years after their father’s death.

Facts of the Case

This case originated when the father of two siblings died in October 2014. After the death, the decedent’s daughter was named trustee of the family’s trust, and it was her responsibility to distribute the money in the trust.

Several years later, the trustee’s brother sued her, arguing that she was intentionally and maliciously keeping funds from him by delaying the distribution of funds. He asked the trial court to order his sister to distribute his share of his father’s estate immediately, as well as to order her to pay the attorney’s fees he accrued in the lawsuit.

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One very common fear among those starting their end-of-life planning is that the Texas probate administration process will be difficult for their family members after they are gone. It is true that probate administration can be complicated, and it is also true that there are ways that individuals can make sure their assets go directly into their beneficiaries’ hands instead of going through a probate court at all. At McCullough & Miller, we offer guidance as to how to structure your assets so that you can make things as simple and straightforward as possible for your loved ones.

As we have addressed on our blog in the past, Texas probate administration is a process by which a judge presides over the distribution of a decedent’s assets. The entire process takes anywhere from three months to several years, and it can get very complicated as a person’s loved ones try to make sure everything is done thoroughly, fairly, and efficiently after that person’s death.

Avoiding the Probate Process Altogether

There are, however, ways to make sure your money goes directly into the hands of your loved ones if you want to bypass the probate process with certain specific assets. For example, you can add what is called a “payable-on-death” designation to your bank accounts. This means that as soon as you die, a person you name will automatically receive whatever money is in that account. This account is then exempt from the probate process entirely.

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When our clients and potential clients come to us after the death of a loved one, there can be a lot to think through in terms of distributing assets and getting affairs in order. One important process is the probate process, which happens when a Texas court distributes any of a decedent’s assets that are not already transferred by trusts or direct payments. The individual’s remaining assets are reviewed by this court, and the judge presides over the distribution process to ensure that everything is done fairly.

Step by Step: The Probate Process

Even if a recently deceased loved one had a will, that person’s estate will likely still have to go through the probate process. This essentially means that the individual’s executor or personal representative must file an application in a Texas court to let the court know that the individual has died and to request the court’s probate administration services.

Next, the court will hold a hearing on the decedent’s estate. Typically, the court will post some kind of announcement informing the public of the upcoming hearing so that anyone that thinks they have a right to be involved in the probate administration can have notice that the hearing will take place. At the hearing, the judge will begin by making sure the decedent’s will is valid and will hold up in court.

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In a recent case before an appeals court in Texas, the plaintiff sued a local firefighters’ relief fund, hoping to receive compensation after her loved one passed away. The plaintiff originally asked a trial court to rule that she was entitled to survivor’s benefits after the death of her significant other, who had worked for years as a firefighter. Ultimately, the trial court refused to hear her claim, and she appealed. The court of appeals reversed this decision and gave the plaintiff another shot at having her case be heard.

Facts of the Case

According to the opinion, the plaintiff suffered the death of her significant other, who was entitled to a pension from a firefighters’ relief fund while he was alive. After his death, those funds went to his estate. In her lawsuit, the plaintiff argued that while she was not officially married to her significant other before he died, they were informally married, and she was entitled to some of the funds placed in the estate.

To succeed in her claim, the plaintiff had to prove both that she and her partner were indeed informally married and that this marriage entitled her to money from the relief fund. Because the plaintiff and her significant other had not created an in-depth plan that would automatically distribute his assets to her after his death, the plaintiff proceeded with the lawsuit in hopes of receiving the funds she thought she deserved.

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When we speak to clients who have elderly parents, grandparents, or friends, one of their biggest concerns is that their loved ones will be taken advantage of through financial abuse. Financial abuse is incredibly common among elder individuals, and the most important thing that others can do is closely monitor how and when their loved ones’ money is being spent. If friends and family keep a watchful eye, this can greatly reduce the odds that their loved ones will be subject to financial abuse from other less trusted individuals in their lives.

It is important to know what to look for when monitoring for possible financial elder abuse. An obvious red flag is a large or unexplained withdrawal or, even worse, a pattern of large or unexplained withdrawals. If your loved one’s bank account is fluctuating in a way that you know is not in alignment with their spending patterns, it is always better to investigate instead of leaving things to chance.

A rapid loss of money can also indicate possible financial elder abuse. Sometimes, we see elderly individuals who face unexplained taxes during tax season or a large number of complaints on FINRA’s broker check site. If your loved one has a broker who is difficult to contact or who has been exhibiting evasive behavior, this is also a sign to look into how that person’s money is being handled.

As an estate planning firm, we get questions from many clients and potential clients about where to start when thinking about beginning the estate planning process. The process can feel daunting, and more than anything, our clients want the peace of mind that their family members will be taken care of once they are gone. At McCulloch & Miller, we walk with you through every step of the estate planning process so that you can be confident that no stone will be left unturned.

The first and most overlooked part of the estate planning process is gathering the documents you already have in your possession. You might have, for example, insurance policy documents, titles and property deeds, proof of identity documents, and bank account statements that will be relevant to your estate planning needs. Some clients bring in a list of their digital logins and passwords, as well as beneficiary designations and funeral instructions. The exact number of documents will differ for everyone, but beginning the process of looking for what you already have can be incredibly helpful as you take the first step in your estate planning process.

Second, you will want to make a list of your assets so that an attorney can help you figure out where each part of your estate should go. A common misconception we see is that only the super-wealthy have to worry about dividing their assets, but this could not be further from the truth. Anyone who has property, bank accounts, a vehicle, investments, or ordinary goods will have to think about how they want those assets to be divided among the people they love.

At McCulloch & Miller, we specialize in estate planning for clients of all walks of life – those with families, those without; those with complicated assets, those without; those who are older and approaching the end of their lives, those who are not. More commonly, we are meeting with millennials that are looking to start their end-of-life planning and who want to make sure their loved ones would be protected if anything were to happen to them.

The Ins and Outs of Estate Planning for Millennials

Millennials are in an important position, as many have both young children and aging parents. Thus, they often identify as caretakers in multiple senses, and they might have more individuals to think about in developing their estate plans. Recently, a report published by Trust & Will reveals that more and more millennials are looking for ways to protect their assets in the long term. The report indicates that of the millennials surveyed, 34% were initially motivated to plan their estates because of young children and 11% were motivated because of a recent death in the family. Others cited recent increases in net worth, large purchases, or growing life responsibilities as reasons to get their affairs in order.

Most millennials surveyed opted for a will-based, instead of a trust-based, estate plan. Those with more in assets typically chose trusts over wills, but it’s not just the wealthiest individuals that are making estate plans in general. The report notes that individuals with all ranges of net worth are looking for ways to start their estate planning journey.

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At McCulloch & Miller, we often get questions from our clients about when it might be the right time to work on creating a living will. To answer this question, it is important to first understand what a living will entails and what effect it might have on you and your loved ones in the future. With this baseline of understanding, you can then make a decision about what is right for you, your circumstances, and your family members.

A living will provides information about what kind of medical care you want to get if you cannot express your wishes or you are reaching the end of your life. Oftentimes, this key information is never communicated to family members and friends; thus, when a loved one is no longer healthy enough to verbalize their needs, the people in their lives are left guessing about what they would have wanted.

Living wills generally take effect when a doctor (or sometimes two doctors, depending on the state) determines that a patient is either permanently incapacitated or unable to communicate. The doctor must put in writing that the patient is in this condition, and at that point, the family members resort to the individual’s living will to determine what kind of medical care they will receive.

When clients and prospective clients come to us for their estate planning needs, their first priority is often asking us to help them write their wills. What many clients don’t know, however, is that wills are only one option clients have at their disposal. Trusts are another tool that can create security throughout the estate planning process. Trusts come in many forms – some address specific needs, while others are general and help individuals avoid the probate process.

A common misconception we see is that trusts are only for the super-wealthy. Trusts can be utilized, however, by any individuals that have assets they don’t want to go through the probate process. Probate is a legal procedure through which assets owned in a decedent’s name are distributed by a court. The kinds of assets that go through probate are typically assets like bank accounts, homes, cars, art, and bank accounts. These assets don’t pass directly to a decedent’s spouse or heirs, so it is the court’s job to make sure they are distributed fairly. Using this kind of trust instead of a will means that assets owned by your trust will totally avoid the probate process and go directly to your loved ones.

When an individual creates a living trust, then, they can take more control of where these assets will end up. Assets held in a trust are also taxed differently than if they are owned outside of the trust. Trust planning can reduce estate taxes, creating yet another benefit that many clients do not know about.

In the past, we have written in-depth on our blog about how to spot financial abuse among elderly people you love. The second question many clients ask, which is perhaps an even more important question, is what to do in the face of possible financial elder abuse. There is no “one size fits all” solution, but there are crucial steps you can take to make sure the older people in your life are well protected.

How We Can Help in the Face of Financial Elder Abuse

At McCulloch & Miller, PLLC, one of our specialties is long-term care planning. We meet with our clients, learn about their lives, and help them figure out how to choose and pay for their long-term care options. We take pride in making sure all the options that our clients are thinking through are safe and trustworthy so that our clients can decrease the odds they will experience financial abuse from a nursing home, residential facility, or caretaking team. If you think you or a loved one has already experienced financial abuse at a residential facility, we can help you think through how to switch facilities so that you feel safer and at peace with where you live. We can also talk you through the necessary steps for bringing an action against anyone that has taken advantage of you or a loved one so that you can get compensated for the harm you have suffered.

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