Houston Estate Planning and Elder Law Attorney Blog

The Texas Declaration of Guardian You Sign in Advance

Published on: August 21, 2026 | By McCulloch & Miller, PLLC

estate planning with a cognitive decline

Last updated August 23, 2026 · Reviewed by Thomas W. McCulloch

Texas law lets an adult decide ahead of time who would serve as guardian if incapacity ever made a guardian necessary. The instrument that does it is a declaration of guardian, signed while capacity is intact and set aside until someone needs it. It also lets the person signing name an individual who may never serve, and that second power is written far more strictly than the first.

The designation carries real weight. Under Texas Estates Code § 1104.202(a), a court shall appoint the person named in a valid declaration in preference to anyone else otherwise entitled to serve, unless it finds that person disqualified or that the appointment would not serve the ward’s best interests. Those two findings are the only routes around the designation. That makes a declaration of guardian in Texas substantially stronger than a letter of wishes, a note in a file, or a conversation the family half-remembers. Estate planning at McCulloch & Miller pairs it with the documents meant to keep the question from arising at all.

What a Declaration of Guardian in Texas Actually Does

A declaration of guardian is a signed written instrument in which a competent adult designates who should serve as guardian of that person’s person or estate if a guardian is later needed. It operates only if the need arises, and it can name alternates in order under § 1104.212, so that the next eligible person named takes over if the first choice has died, declines, cannot qualify, or later resigns.

The declaration does not need to look like a form. Section 1104.204(a) says it may be in any form adequate to clearly indicate the declarant’s intention, and while the statute supplies a sample, subsection (b) states plainly that the form may be used but is not required. The statute tests the declarant’s intention and the execution of the document rather than its layout.

The VA Survivors Pension in Texas After a Veteran Dies

Published on: August 18, 2026 | By McCulloch & Miller, PLLC

Last updated August 23, 2026 · Reviewed by David W. Miller

The Department of Veterans Affairs pays a needs-based monthly benefit to the surviving spouse of a wartime veteran, separate from the pension the veteran could have claimed while living. It is called the Survivors Pension, and it reaches a different claimant under different rules. Texas families who looked into VA pension benefits while the veteran was alive often assume the door closed at the death.

The VA Survivors Pension in Texas turns on the veteran’s service, the marriage, and the survivor’s own income and net worth. Under 38 U.S.C. § 1541(a), the benefit is payable to the surviving spouse of a veteran of a period of war who met the service requirements of § 1521(j), or who at the time of death was receiving or entitled to receive compensation or retirement pay for a service-connected disability. That second route has no counterpart in the living veteran’s pension. Pension benefits for Texas veterans is an area McCulloch & Miller handles through an attorney accredited by the VA.

Who Qualifies for the VA Survivors Pension in Texas

The Survivors Pension is a needs-based benefit for the surviving spouse of a deceased wartime veteran, paid monthly and reduced by the survivor’s countable annual income. Eligibility has three layers, and a claim can fail at any one of them.

The first layer is the veteran’s service. Section 1521(j) requires 90 days or more of service during a period of war, a discharge during a period of war for a service-connected disability, 90 consecutive days that began or ended during a period of war, or an aggregate of 90 days across two or more war periods. The often-repeated idea that a single day of wartime service qualifies someone is not what the statute says.

Qualified Charitable Distributions for Texas Retirees

Published on: August 16, 2026 | By McCulloch & Miller, PLLC

Qualified Charitable Distributions for Texas Retirees

Last updated August 23, 2026 · Reviewed by Thomas W. McCulloch

A retiree who gives to a church, a university, or a local charity by writing a check is using after-tax dollars and then hoping the deduction survives the return. There is a different route for anyone who has reached 70½ and holds an individual retirement account. The money can go straight from the IRA to the charity, and it never appears in taxable income at all.

That route is the qualified charitable distribution. For a Texas retiree who takes the standard deduction, a QCD is often worth more than the same gift made by check, because the tax benefit does not depend on itemizing. It became more valuable for the 2026 tax year, when a new floor started limiting charitable deductions that a QCD sidesteps entirely. McCulloch & Miller advises Dallas and Houston families on charitable planning, and this is the tool that fits the largest number of ordinary retirees.

How a Qualified Charitable Distribution Works in Texas

A qualified charitable distribution is a payment made directly by an IRA trustee to a qualifying charity on behalf of an account owner who has reached age 70½, excluded from the owner’s gross income up to an annual cap. The definition sits in 26 U.S.C. § 408(d)(8).

Two mechanics do the work. First, the transfer has to be made directly by the trustee under § 408(d)(8)(B)(i). A distribution paid to the account owner who then writes a check to the charity is an ordinary taxable distribution, and the sequence cannot be repaired afterward. Second, § 408(d)(8)(D) turns off the usual proportional rule for IRAs with after-tax money in them, so the QCD is treated as coming from the pre-tax portion first.

Inherited IRA Rules in Texas and the Annual Withdrawal

Published on: August 13, 2026 | By McCulloch & Miller, PLLC

Inherited IRA Rules in Texas and the Annual Withdrawal

Last updated August 23, 2026 · Reviewed by Thomas W. McCulloch

Most people who inherit a parent’s IRA are told one thing about it, which is that the account has to be emptied within 10 years. That is part of the rule and not all of it. For a large group of beneficiaries, a withdrawal is also required in each of the years along the way, and skipping those years does not simply postpone the tax.

The inherited IRA rules in Texas are federal, and the current version comes from Treasury regulations finalized in 2024 that apply to required minimum distributions for calendar years beginning on or after January 1, 2025. The annual requirement does not reach every beneficiary. It turns on when the original owner died relative to that owner’s required beginning date, and on which category the beneficiary falls into. McCulloch & Miller works with Houston families on estate planning where retirement accounts are often the largest asset passing to the next generation.

Inherited IRA Rules in Texas After the Final Regulations

An inherited IRA is a retirement account that passes to a beneficiary at the owner’s death and is retitled for that beneficiary, who must withdraw the balance under a schedule set by federal law rather than leaving it in place indefinitely.

Medicare Nursing Home Coverage in Texas and When It Ends

Published on: August 8, 2026 | By McCulloch & Miller, PLLC

Last updated August 23, 2026 · Reviewed by Thomas W. McCulloch

A hospital stay that ends in a transfer to a skilled nursing facility puts most families in contact with Medicare’s rehabilitation benefit for the first time. The coverage is genuine but narrow, and it rests on conditions decided during the hospital stay rather than at the nursing home. By the time someone is told coverage is ending, the facts that decided it are already fixed.

Medicare nursing home coverage in Texas runs under Part A as what the statute calls post-hospital extended care services, and two limits account for most of the denials families encounter. The stay has to follow a qualifying hospital admission, and the benefit is capped at 100 days per spell of illness under 42 U.S.C. § 1395d(a)(2)(A). Neither limit is within the facility’s discretion. McCulloch & Miller works with families in Austin, Houston, and across Texas on Texas elder law questions that begin at exactly this moment.

What Medicare Nursing Home Coverage in Texas Pays For

Post-hospital extended care services are skilled nursing or rehabilitation services furnished in a skilled nursing facility after a qualifying transfer from a hospital, covered by Medicare Part A for a limited number of days rather than as ongoing long-term care.

Texas Successor Trustee Duties in the First 90 Days

Published on: August 2, 2026 | By McCulloch & Miller, PLLC

Last updated August 23, 2026 · Reviewed by Ryan S. Cook

A successor trustee usually starts the job during a funeral week, holding a document nobody has read closely in years. The authority arrives immediately and without a court appointment, which is the advantage of a trust and also the reason the role catches people unprepared. Nothing formal marks the beginning.

Successor trustee duties in Texas begin with a fiduciary obligation that is broader than the trust document describes. Under Texas Property Code § 113.051, a trustee shall administer the trust in good faith according to its terms, and absent contrary terms shall perform all of the duties imposed on trustees by the common law. A great deal of what a trustee owes therefore never appears in the instrument at all. McCulloch & Miller advises trustees on trust administration in Austin, Houston, and across Texas.

ABLE Accounts or a Special Needs Trust for a Texas Family

Published on: July 30, 2026 | By McCulloch & Miller, PLLC

Last updated July 30, 2026 · Reviewed by Thomas W. McCulloch

Families in Dallas County raising a child with a disability face a planning problem with two common answers that are not interchangeable. An ABLE account and a special needs trust both hold money for a person with a disability without costing that person Supplemental Security Income and Medicaid. They operate under different bodies of law, carry different ceilings, and end very differently when the beneficiary dies.

The federal Medicaid statute is what makes a special needs trust work. Under 42 U.S.C. § 1396p(d)(4)(A), a trust holding the assets of an individual under age 65 who is disabled is treated differently from an ordinary trust, provided it was established for that individual’s benefit by a permitted person and the State is repaid at the beneficiary’s death, up to what Medicaid spent, from whatever remains. An ABLE account comes from the tax code instead, at 26 U.S.C. § 529A, and its constraints are dollar constraints rather than structural ones.

Charitable Remainder Trusts in Texas for Gifts of Appreciated Stock

Published on: July 27, 2026 | By McCulloch & Miller, PLLC

Charitable Remainder Trusts in Texas for Gifts of Appreciated Stock

Last updated July 27, 2026 · Reviewed by Thomas W. McCulloch

A block of stock purchased decades ago and never sold carries a cost basis that bears no relation to what the shares are worth today. Retirees across Dallas County hold positions like this in a former employer’s shares or in an energy company bought when the certificate still arrived by mail. Selling to diversify or to generate retirement income realizes the entire appreciation at once, and Texas having no state income tax leaves the federal exposure untouched.

A charitable remainder trust is an irrevocable split-interest trust that pays an income stream to one or more non-charitable beneficiaries for a set period and then distributes what remains to charity. Because the trust is generally tax-exempt, appreciated stock contributed to it may be sold inside the trust without the donor recognizing gain at the moment of sale.

When Your Child With a Disability Turns 18 in Texas

Published on: July 23, 2026 | By McCulloch & Miller, PLLC

Last updated July 23, 2026 · Reviewed by Thomas W. McCulloch

The Texas Estates Code defines an adult as an individual 18 years of age or older, and it draws no exception for disability. On that birthday, a parent in Austin or anywhere else in Texas stops being the automatic legal decision maker for a son or daughter. Medical providers, banks, benefits offices, and colleges may begin dealing with the new adult directly, and a parent who calls to ask a routine question can be turned away.

Guardianship is not the default answer under Texas law. A court must weigh the guardianship alternatives for a Texas adult child before it may appoint anyone at all. Under Texas Estates Code § 1101.101(a)(1)(D) and (E), a court must find by clear and convincing evidence that alternatives to guardianship, and the supports and services available to the proposed ward, were considered and determined not to be feasible before it appoints a guardian. The alternative most families are never told about is the supported decision-making agreement, created by Chapter 1357 of the Texas Estates Code.

Recognizing Financial Exploitation of an Older Adult in Texas

Published on: July 23, 2026 | By McCulloch & Miller, PLLC

Recognizing Financial Exploitation of an Older Adult in Texas

Last updated July 23, 2026 · Reviewed by Thomas W. McCulloch

Chapter 48 of the Texas Human Resources Code governs the financial exploitation of older adults and adults with disabilities. It supplies a statutory definition, imposes a reporting duty that reaches every person in the state, and makes a knowing failure to report a criminal offense. For families in Houston and across Harris, Fort Bend, Montgomery, and Brazoria counties, that chapter is where a suspicion about a parent’s bank account meets a defined legal process, and it is a recurring issue in Texas elder law.

Texas Human Resources Code § 48.002(3) defines exploitation to include the improper use of an elderly person’s resources by a caretaker, family member, or other individual who has an ongoing relationship with that person, without informed consent. Section 48.051(a) then requires a person who has cause to believe that an elderly person is in a state of exploitation to report it immediately. That duty falls on any person, not only on licensed professionals.