Estate Planning

What Happens If There Is No Will? Navigating Intestate Probate in Texas

Published on: November 27, 2024 | By David W. Miller

In an ideal situation, if you are left to handle a loved one’s affairs after they pass, you have your loved one’s detailed will or estate planning document at your disposal. Sometimes, however, individuals die without a will, and their heirs are left to navigate intestate probate in Texas. The word “intestate” literally means that a person dies without a will, and intestate probate is different from (and more complicated than) probating an estate that includes a will. On today’s blog, we review the basics of the intestate probate process for those who might need guidance as they handle their loved one’s affairs.

Step 1: Appoint an Administrator

Because the decedent will not have named an executor, it falls on the court to appoint an administrator for the estate. Typically, an attorney will notify the court that an individual has died, and that attorney will ask the court to appoint an administrator. The administrator will then be responsible for naming the possible beneficiaries of the decedent’s estate. Importantly, the court must issue Letters of Administration during this process; these letters detail the administrator’s authority to act on behalf of the decedent’s estate.

Step 2: Review the Estate

The administrator will need to take time to review the decedent’s assets and debts, including bank accounts, real property, investment accounts, and sentimental or valuable items. Once the administrator is armed with this information, he or she can determine how to administer the estate. In order to administer the relevant assets, the administrator will need to file an affidavit of heirship. This formal document lists the decedent’s heirs and the assets, and all heirs need to sign and notarize the document (along with two witnesses).

Texas Heirship Law

Published on: November 23, 2024 | By Thomas W. McCulloch

In Texas, if a person dies without a will (or if a person leaves property out of their will, intentionally or mistakenly), there are laws that dictate how the state distributes the relevant property. Texas heirship law can seem complicated at first, but today’s blog aims to simplify the process for those whose loved ones died without clear instructions for their property.

In order to decide who inherits a decedent’s property when that property is not accounted for in a decedent’s will, the probate court must first determine the decedent’s heirs. The court will take into consideration three main circumstances when investigating the heirs: the marital status of the decedent; the type of property at stake (separate/nonmarital or community/marital); and whether the decedent had children.

Heirship Law Without a Spouse Involved

If a decedent died without a spouse, the process is relatively straightforward. In this circumstance, the estate goes to the decedent’s children. If there are no children involved, the estate goes to the decedent’s parents, or to his or her siblings if the parents are no longer living. In some circumstances, a decedent dies with no living relatives. If this happens, the person’s estate goes to the state of Texas.

Heirship Law with a Spouse Involved

If a decedent died with a spouse, that person’s separate property is divided as follows: one-third of the estate goes to the spouse, while two-thirds go to the children. If the decedent had no children, the spouse inherits all of the separate property.

What You Need to Know About Muniment of Title in Texas

Published on: November 9, 2024 | By Thomas W. McCulloch

What You Need to Know About Muniment of Title in Texas

If one of your loved ones has recently passed, and that loved one died both with a will and without any debts, you might be able to probate your loved one’s estate through Muniment of Title. Muniment of Title is a tool that shortens the time that probate typically takes, and it allows for a more efficient and cost-effective solution for beneficiaries. There are, however, certain things to keep in mind if you are wondering whether Muniment of Title might be right for you.

Requirements for Muniment of Title

As mentioned, for a person’s estate to qualify for Muniment of Title, the person must have died both with a will and without any debts. Thirdly, the person must not have applied for Medicaid benefits at any point in his or her lifetime. The applicant (typically an heir) for Muniment of Title must be able to testify to these three facts, both in written and oral form.

The Process for Muniment of Title

Once an applicant determines that his or her loved one’s estate meets these requirements, the applicant submits the required documentation to the court. Although the process is relatively straightforward, we recommend having a Houston estate planning attorney look over the paperwork to make sure everything is procedurally correct before submitting. Once the court receives and approves the will, the court will post notice for ten days, advising the public that it will be holding a hearing on the decedent’s estate.

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.

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.

What is a Living Will? Do I Need One?

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

When drafting a will or other estate plan in Texas, it is easy to think about including provisions for the distribution of assets and debts. What many people don’t realize, however, is that it is also smart to draft a living will. By definition, a living will is a legal document that provides instructions for a person’s medical treatment if that person is unable to make medical decisions for him or herself. This inability could be due to illness or unconsciousness, and it often occurs when a person is under some kind of life support. Does it make sense to include a living will in your estate plan? Why or why not?

In short, we at McCulloch & Miller recommend that our clients draft a living will as soon as possible. The first reason it makes sense to draft a living will is simple: we never know when the unexpected will hit us. Even if you are a healthy person, life can change in an instant. While this is not a pleasant reality to think about, it is important to realize that no one is immune from severe and unexpected illness. If and when an illness does strike, you want to have a detailed plan in place.

Second, there are so many options for which medical decisions might arise during an emergency situation. For example: what are your preferences for pain management? Do you want to donate your organs? Do you want doctors to resuscitate you if they need to make an instantaneous decision? Because these decisions can be complicated, it is always better to have your preferences written down far in advance.