Houston Estate Planning and Elder Law Attorney Blog

A Will or a Trust: Which is Right for You?

Published on: August 29, 2024 | By McCulloch & Miller, PLLC

There is no “one size fits all” approach to estate planning. Each person brings his or her own set of circumstances, goals, and opportunities to the table. One of the first questions we discuss with our potential clients during a first meeting is whether they would like to move forward with a will or a trust. There are basic differences between the two tools, and these differences can help clients decide which tool (if either) is right for them and their families.

How Much Do You Value Privacy?

If it is important to you for your assets, debts, and estate plan to be kept private, a trust might be better for you. A will passes through probate court, meaning a judge will have to validate the will before approving the distribution of the assets. These proceedings become part of the public record. A trust, on the other hand, allows you to forego probate altogether, which shields your estate plan from public view.

How Complex is Your Estate?

In general, a more complex estate lends itself better to a trust than to a will. While there are certainly exceptions to this rule, if you have assets such as an interest in a business, multiple real estate properties, or significant investments, you may want to consider a trust over a will. It is sometimes easier to tailor a trust to a client’s specific estate, and if you have a complex estate, the trust might allow you to more easily meet your personalized goals.

Estate Planning Mistakes in Texas and How to Avoid Them

Published on: August 22, 2024 | By David W. Miller

If you are starting to think through your estate planning process, it can be difficult to know where to start. In our decades of practicing as Houston estate planning attorneys, we have noticed several mistakes that are common for people to make as they start their estate plans, and we have developed helpful tools for how to avoid them. On today’s blog, we will review these estate planning mistakes in hopes of helping you get a strong start in your estate planning journey.

Mistake #1: Not Starting Early

It is tempting to wait until you are “later in life” to begin your estate plan. Unfortunately, the reality is that we never know what life has in store for us. No matter your age, it is prudent to speak with an estate planning attorney that can help you figure out how to draft a plan that works for you. If something unexpected were to happen and you did not have a plan in place, your loved ones would be left in disarray trying to make arrangements for your assets.

Mistake #2: Using a “One Size Fits All” Approach

We understand the allure of using a DIY will that you can find online. In reality, though, every person has a different set of needs and circumstances. In fact, a will might not be right for you at all: a trust might be a better tool for your estate plan, in that it could help you avoid probate and get money to your beneficiaries more efficiently. Without taking the time to explore different options, you could miss out on important tools to shape your estate plan. Exploring these options also reinforces the importance of including provisions that many people forget to include in their plans, such as power of attorney, end of life care instructions, funeral arrangements, and instructions for your digital footprint.

Three Signs It’s Time to Review Your Estate Plan in Texas

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

Maintaining your estate plan is a bit like maintaining a car: it occasionally requires effort, but if you remain diligent, you should be well taken care of. The good news is that if you already have an estate plan, you have put in a significant amount of time and work, and this will help you down the road. However, we always recommend keeping an eye out for indications that it might be time to review your estate plan. Today’s blog reviews three signs that you might need to update your plan.

Three to Five Years Have Gone By

The first, and easiest, indicator that you might need to update your estate plan is that the last time you changed your plan was between three and five years ago. As the legal landscape changes and your circumstances change, it is smart to call up your estate planning attorney and think about updating the plan. This should happen at least twice every decade.

You’ve Experienced a Change in Family Circumstances

The following changes could warrant an update to your estate plan: marriage, separation, divorce, a child support order, the birth or adoption of children, the death of a close family member, or the aging of your children. With any of these circumstances, you should update your estate plan to make sure it aligns with what your life looks like in its current state.

Efficiently Transferring Ownership of a Family Business in Texas

Published on: August 15, 2024 | By Thomas W. McCulloch

If you are a business owner and want to transfer your ownership to a family member or external party, there are several options available to you. The best option, as always, will depend on your own circumstances and goals. On today’s blog, however, we review the basics of the most common options that business owners use when transferring ownership of their business. The most fundamental tip we offer to those considering transferring ownership of a business is to start looking into options early. Because the process requires so much care and attention, it’s never too soon to start thinking through the various possibilities.

Option 1: Gift the Business to a Family Member

If you have a daughter, son, or grandchild that you want to take over your family business, the first option is to transfer the business as a gift. In the United States, the gift tax exemption gives business owners the opportunity to transfer their company, in part or in whole, without charging any money. This federal exemption changes every year, so be sure to ask a wealth planning professional or estate planning attorney about this year’s annual limit.

Option 2: Sell the Business

You can, of course, sell your business in part or in full. By selling only part of the business, you can retain some ownership (and therefore some control) over the business while you take the time to pass down your institutional knowledge to the next generation. You could choose to do an internal sale, selling to a family member, or an external sale. Either way, it is important to think through your options early and do your due diligence so your business can carry on successfully.

Guardianship Issues Under Texas Law

Published on: August 15, 2024 | By David W. Miller

At McCulloch & Miller, we handle everything from estate planning to trust administration, from special needs planning to elder law. One area we are proud to specialize in is guardianship, which is the legal process that takes place when an individual can no longer make competent decisions independently. When a court decides that an individual needs a legal guardian, that guardian takes over the individual’s personal finances and affairs, serving in a comprehensive and holistic role. Guardianship is a complicated process, and today we review some basics to help you understand a few of the most common guardianship issues under Texas law.

Issue 1: Knowing When to Appoint a Guardian

It can be very murky for a court to decide when a person needs a guardian. In general, the court will require a thorough exam that draws a conclusion as to whether the individual has a medical condition prohibiting him or her from functioning at high mental capacity. The standard for guardianship appointment is generally high; courts do not want to appoint a guardian for someone that might not need one. For example, if a person makes decisions that are unsound or that his relatives disagree with, that does not necessarily mean the person needs a guardian. Instead, courts often appoint guardians when a person suffers from dementia or has fallen into a coma. It can sometimes be difficult to decipher when a guardian might be needed, especially because the process inherently means the person’s freedom will be extremely limited as a result.

Issue 2: Choosing a Guardian

Choosing a guardian can be tough. In many circumstances, courts prefer a family member; however, professional guardians can also be appointed. At McCulloch & Miller, we help draft what is called a “Declaration of Guardian,” which is a legal document that clients can put into their estate planning documents in preparation for the possibility of guardianship.

Why It’s Important to Learn About Probate Before Filing

Published on: August 8, 2024 | By Thomas W. McCulloch

The reality is that no one wants to find themselves in probate court. Probate courts evaluate a decedent’s will and decides whether the will is valid before approving the distribution of the decedent’s assets. If you are planning on filing in probate court, it is wise to take some time to first understand how the court works and what you need to do. By learning about probate court before filing, you can save yourself a major headache down the road.

Reason 1: There Are Several Texas Probate Courts

The first reason to learn about probate before filing is that there is more than one probate court. If you file in the incorrect court, the court could determine it does not have authority to hear your claim. You will then have to re-file in another court. To save time and money, figure out ahead of time which of the four Texas probate courts you should use. In general, if the decedent was a Texas resident, the county where he or she died will be the county where you should file for probate.

Reason 2: Probate Costs Money and Time

It can be costly to go through probate. Filing fees and attorney’s fees can take a toll on a family, and it is important to look into these fees ahead of time so that you can plan accordingly. Probate attorneys are required in most probate cases in Texas, and finding the right attorney can be a process. You should always make sure your chosen attorney is upfront about their fees before you decide to retain them.
The time that probate takes can also be frustrating for beneficiaries that are anxious to receive the assets a decedent left behind. Probate can take anywhere from a few months to over a year. By going into probate equipped with this knowledge, you can plan your finances accordingly.

Understanding Medicare v. Medicaid in Texas

Published on: August 8, 2024 | By David W. Miller

Medicare and Medicaid are two government benefits with very different purposes and very similar names. Because clients often come to us feeling understandably confused between the two, today’s blog post will cover the fundamental differences. This blog can serve as a touchpoint for the future when you want to apply for either benefit.

What is Medicare?

Medicare is health insurance from the federal government. The government provides Medicare for anyone 65 or older, as well as some people under the age of 65 who have certain qualifying disabilities. When you reach the age of 65, though, regardless of your health, you automatically qualify for Medicare.

To receive Medicare under the “qualifying disabilities” standard, individuals must have received Social Security Disability benefits for 24 months. As an alternative, individuals could have one of two conditions: (1) End Stage Renal Disease (ESRD) or (2) Amyotropic Lateral Sclerosis (ALS). Frustratingly, individuals with one of these diseases can only receive Medicare five months after their diagnosis. In general, it can take a long time for the government to process Medicare paperwork, so we recommend applying as soon as you know that you might qualify under one of these conditions.

What is Medicaid Crisis Planning?

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

As we age, we need more health services to maintain our quality of life. Unfortunately, in this day and age, necessary services can cost a fortune. At McCulloch & Miller, one of our specialties is Medicaid crisis planning, which helps clients prepare for possible health needs in the future. If you have not yet begun your Medicaid crisis planning process, contact a Houston elder law attorney that can help you get started.

What Services Might I Need?

Government estimates indicate that up to 70 percent of older individuals require long-term care at some point. As you age, you might need to move into a facility such as a nursing home or residential center. If you decide to stay in your home, you might need a fulltime or parttime nurse to come check on you or to offer more substantive care. You might also opt for home therapy, wound care, fall prevention services, or other specialized services.

What Does Medicaid Crisis Planning Achieve?

Medicaid crisis planning helps you predict whether might qualify for Medicaid, which covers significant amounts of long-term care. To qualify, you must be characterized as “low income” or “very low income.” Of note, the government looks not only at applicants’ current financial status but also at their previous five years, so if you have only recently qualified as “low income,” you still might not qualify under the rules. To learn more about specific qualifications, click here for a chart of Texas Medicaid Facts for 2024.

How to Ensure Your Wishes Are Honored After Your Death

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

It can be scary to think that after you are gone, you have no control over how your assets are distributed. When you spend your life working hard to provide for yourself and your loved ones, you want to make sure that legacy continues after you die. There are some fundamental ways you can make sure your wishes are honored after your death; today, our blog reviews a few of these methods. This is not an exhaustive list, but instead a guide for what steps you should be taking as you start to think through your estate plan.

Write a Detailed, Thorough Estate Plan

Your estate plan should leave nothing to chance. It should include an exhaustive list of your assets, and it should be as specific as possible. The estate plan should not only provide instructions for your money; it should tell loved ones how you want them to handle your valuable or sentimental items, physical property, and even your digital footprint. By working hard to ensure this list covers all of your property and assets, you can make sure your loved ones know exactly how you want to handle all parts of your estate when the time comes.

Hire a Trusted Estate Planning Attorney

It can be tempting to use “DIY will” tools online or create estate plans without the help of an attorney. Ultimately, though, if you want to make sure your wishes are honored after you are gone, you should speak with an experienced Houston estate planning attorney that can help you create an individualized plan that takes your priorities into account. Estate planning attorneys will have insider knowledge about probate court, the validity of different estate planning tools, and basic procedural requirements for your documents. Hiring the right attorney could end up making a huge difference for how your estate plan plays out when you die.

Preparing for a Consultation with a Houston Estate Planning Attorney

Published on: July 23, 2024 | By McCulloch & Miller, PLLC

If you have decided to take the first step and meet with a Houston estate planning attorney, congratulations; you’ve made a great decision that will positively affect your and your families’ long-term futures. Estate planning consultations can be helpful for individuals looking to draft an estate plan, modify an estate plan, or just ask questions about whether they need an estate plan at all. Today, we cover some basics that can help you feel prepared for a consultation with your Houston estate planning attorney. Taking these steps can ensure that your meeting is as efficient and beneficial as possible.

Step 1: Gather Your Documents

Before you attend your consultation, start to gather documents that you might need on your estate planning journey. These could include tax returns, bank account statements, property deeds, divorce decrees or child support orders, and any anything else that speaks to your financial state. It is wise to go ahead and bring these documents to your initial consultation in case your attorney has questions about how and where you keep your assets.

Step 2: Talk to Your Loved Ones

Your estate plan should ideally not be a surprise to your closest family members. If you plan to involve others in the execution of your state plan, as an estate executor or trustee, perhaps, it is better to ask these individuals on the front end if they are willing to serve in this capacity. Communicating early and often about your estate plan is always a good idea.