Houston Estate Planning and Elder Law Attorney Blog

Paying a Family Caregiver Without Triggering a Texas Medicaid Penalty

Published on: September 22, 2026 | By McCulloch & Miller, PLLC

Paying a Family Caregiver Without Triggering a Texas Medicaid Penalty

Last updated September 22, 2026 · Reviewed by Thomas W. McCulloch

Texas Medicaid reviews five years of an applicant’s financial history before it pays for nursing facility care. Money paid to a relative who has been providing care is one of the places a family’s arrangement can come apart. A payment the family sees as fair wages can look to the state like a gift. When it does, Medicaid withholds payment for a stretch of time calculated from the amount.

Texas HHS counts payments to a family caregiver as compensation rather than a gift only under specific conditions. The payments must follow an agreement established on or before the transfer, made for purposes other than qualifying for Medicaid, for services actually provided and documented. Payment for ordinary household help that a family member would normally provide does not count at all. A personal care agreement for Texas Medicaid purposes has to be built around those rules from the start. McCulloch & Miller treats it as part of Medicaid crisis planning for Houston families, not a form to sign later.

Changing an Irrevocable Texas Trust Through Decanting or the Court

Published on: September 20, 2026 | By McCulloch & Miller, PLLC

Changing an Irrevocable Texas Trust Through Decanting or the Court

Last updated September 20, 2026 · Reviewed by Ryan S. Cook

Many Texas trusts in administration today were written decades ago, under tax rules, family circumstances, and benefit programs that have since changed. A trustee holding one of these documents often assumes that the word “irrevocable” leaves no room to fix it. Texas law gives trustees and courts two separate routes, and the right one depends on how much discretion the trust already grants.

A Texas trustee with discretion to distribute principal can often modify an irrevocable trust by decanting, which means distributing its assets into a new trust with updated terms. Property Code §§ 112.071 through 112.087 allow it after written notice to beneficiaries, without a court order. Where decanting is unavailable or contested, a trustee or beneficiary may ask a court to modify, reform, or terminate the trust under § 112.054. McCulloch & Miller helps trustees in Austin and across Texas choose between the two as part of its trust planning practice.

How Community Property Resets the Tax Basis for a Texas Surviving Spouse

Published on: September 17, 2026 | By Thomas W. McCulloch

How Community Property Resets the Tax Basis for a Texas Surviving Spouse

Last updated September 17, 2026 · Reviewed by Thomas W. McCulloch

When a married Texan dies, the federal tax basis of the property the couple owned is recalculated, and Texas’s community property system changes how much of that property gets the new figure. For a surviving spouse deciding whether to sell a Houston home or a long-held brokerage account, the result can be that decades of appreciation never enter the gain calculation. The rule is federal, but it depends on Texas marital property law to work.

Under 26 U.S.C. § 1014, property acquired from a person who has died takes a basis equal to its fair market value on the date of death. Section 1014(b)(6) extends that treatment to the surviving spouse’s own half of community property, so both halves of a community asset take the date-of-death value rather than only the half that belonged to the spouse who died. McCulloch & Miller, whose founding partner is both an attorney and a CPA, builds this rule into the estate planning it does for Houston couples and into the advice it gives surviving spouses.

What Heirs Face When a Texas Parent Dies With a Reverse Mortgage

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

Last updated September 13, 2026 · Reviewed by David W. Miller

A reverse mortgage comes due when the last borrower dies, and the house passes to the family with the loan still attached. For the federally insured version, the home equity conversion mortgage, federal rules set short deadlines for the family to act. Heirs who do not know those deadlines can lose options they never realized they had.

After the last borrower dies, the lender notifies the estate and heirs that the loan is due. The regulations then give them 30 days from that notice to pay the balance, sell the home, or deed it to the lender. Under 24 C.F.R. § 206.27(b)(8), no one is personally liable for any shortfall, because the lender can collect only through the property. McCulloch & Miller helps families in Dallas and across Texas through the probate steps that usually have to happen before a sale can close.

Serving as Executor of a Texas Estate When You Live in Another State

Published on: September 10, 2026 | By David W. Miller

Last updated September 10, 2026 · Reviewed by Ryan S. Cook

A will probated in Harris County sometimes names an executor who lives in another state, often an adult child who moved away years before the parent died. Texas does not bar nonresidents from serving. It does impose one condition that a nonresident executor must meet before the court will issue letters, and missing it leaves the named executor unqualified to act.

Under Texas Estates Code § 304.003(a)(3), a nonresident may serve as executor only after appointing a resident agent to accept service of process in all actions or proceedings concerning the estate and filing that appointment with the court. Living out of state is not itself a disqualification. McCulloch & Miller helps executors in Houston probate matters, including executors who live out of state, by handling the Texas filings while the executor works from home.

Removing a Texas Trustee Who Will Not Account or Distribute

Published on: September 8, 2026 | By Thomas W. McCulloch

Last updated September 8, 2026 · Reviewed by David W. Miller

Disputes over a family trust in Texas often begin when a trustee, frequently a sibling, stops answering questions, will not produce records, and has not made the distributions the beneficiaries expected. Texas law gives beneficiaries a way to ask a court to replace that trustee. The remedy is discretionary, and the grounds are specific enough that the way a case is built makes a real difference.

Under Texas Property Code § 113.082, a trustee may be removed under the trust’s own terms, or a court may remove a trustee after a hearing on the petition of an interested person. The statute lists four grounds, including a trustee’s failure to make an accounting required by law or by the trust, and the court may also deny the trustee part or all of their compensation. McCulloch & Miller advises beneficiaries in Austin and across Texas on these disputes as part of its trust planning and administration practice.

Contesting a Will in Texas Starts With Two Questions

Published on: August 31, 2026 | By McCulloch & Miller, PLLC

Contesting a Will in Texas Starts With Two Questions

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

A family member who has been left out of a will often focuses first on why the document says what it says, and whether the person who signed it was pressured or confused. Those are the grounds, and they are the second question. The two that come before them are narrower and decide whether a court reaches the grounds at all. Who is permitted to bring the challenge, and how long they have to bring it.

Both answers sit in the Texas Estates Code. Contesting a will in Texas requires an interested person, a defined term rather than a description of how someone feels about the outcome, and the challenge has to be filed inside a limitations period that runs from a specific event. A contest with strong grounds and no standing does not proceed, and neither does one filed too late. McCulloch & Miller handles probate matters for families in Dallas, Houston, and across Texas.

Who Has Standing When Contesting a Will in Texas

Standing in a Texas will contest belongs to an interested person, which Texas Estates Code § 22.018 defines as an heir, devisee, spouse, creditor, or any other person having a property right in or claim against an estate being administered, and additionally anyone interested in the welfare of an incapacitated person, including a minor.

The common thread in the first category is a property right or a claim. A person who stands to gain or lose financially depending on whether the will is upheld can qualify. A person with only a moral or emotional stake generally cannot, however close the relationship was.

That distinction disposes of several situations quickly. A longtime friend promised something verbally, a caregiver told a bequest was coming, and an adult child of a living parent all tend to struggle on standing rather than on the merits, because none holds the interest the statute describes.

Funding a Trust in Texas and the Assets Left Behind

Published on: August 24, 2026 | By McCulloch & Miller, PLLC

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

A Texas revocable trust controls only the property that was actually transferred into it. Signing the trust instrument creates the arrangement, but it does not move a house, a brokerage account, or a certificate of deposit out of an individual name and into the name of the trustee. Funding a trust in Texas is a separate set of transfers, done one asset at a time, and it is the step most often left unfinished after the signing appointment ends.

The consequence lands on the family rather than on the person who signed. An asset still titled in the deceased person’s own name at death does not pass under the trust, however carefully the trust was drafted. It passes under the pour-over will instead, which has to be admitted to probate before the trustee can touch it. The probate avoidance the trust was created to accomplish does not happen. Trust planning at McCulloch & Miller treats funding as part of the engagement for that reason.

What an Unfunded Trust Looks Like Months After a Death

An unfunded trust is a trust that holds no property, or holds far less than the person who created it believed. It is rarely all or nothing. The common pattern is a trust that received one or two accounts in the year it was signed and nothing afterward.

The assets that go missing tend to be the same ones across families:

The homestead: the trust names the house, but no deed conveying it to the trustee was ever signed and recorded in the county real property records.
Brokerage and bank accounts: opened before the trust existed and never retitled, often because retitling requires new account paperwork the custodian did not volunteer.
Retirement accounts and life insurance: governed by a beneficiary designation form that was completed years earlier and never revisited.
Property acquired after signing: a rental house, a second vehicle, or a new account opened individually out of habit.

Each of these is fixable during life and expensive to work around after death, which is the argument for reviewing funding periodically rather than once.

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.