Estate Planning

Planning for the Day After Your Death

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

Take it from us: thinking about death is very rarely how anyone wants to spend their time. As estate planning attorneys, however, we have learned that it is a necessary evil. In our experience, the clients whose families are best protected long-term are those who have taken the time and energy to carefully think through what will happen in the event of their death. On today’s blog, we consider a topic that is not glamorous but that is still incredibly important: planning for the day after your death.

The day after your death, your loved ones will be grief-stricken and perhaps unsure of where to turn. At McCulloch & Miller, we believe that we all have an obligation to our loved ones to make sure they have as little to worry about as possible when that day comes. When your loved ones find themselves in a funeral home, a hospital, or a hospice center, they will want to deal with as few logistics as possible.

Given that reality, there is a checklist we recommend making now, as soon as possible, that your loved ones can access in the event of your death. This checklist should include:

The Problem with DIY Wills

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

As a team of Texas estate planning attorneys, we often face similar questions from the clients and prospective clients we meet. One such question that many clients ask is: what’s the problem with a DIY will? Our short answer, which we will delve into more through this blog, is that a “do it yourself” will only works until it doesn’t work. While it can end up being legally valid, there are often complications that arise, and it’s often not worth the risk to you and to your loved ones down the road.

As online legal services become more and more popular, many individuals become increasingly interested in getting an online will. These wills do not require speaking to an estate planning attorney, but instead allow you to fill out online forms and quickly get a will that might work for you. There are three main issues that we see with these wills, and we will address each issue below.

1. Is the Will Valid?

In Texas, there are several requirements that a will must meet in order to be valid. It must, for example, be executed properly, self-proving, and written down. It must make sense and it must be able to survive legal scrutiny during probate. While an online will might meet these requirements, odds are there might be some difficulties that the will does not take into consideration.

What to Expect During Your Estate Planning Consultation

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

At McCulloch & Miller, we hear from our clients time and time again that the estate planning process feels daunting – especially when it is just beginning. Luckily, with the right estate planning attorneys in place, you can walk into your first meeting with the confidence that your case is in the best of hands. Today, we review some of the topics you might expect to cover in your initial estate planning consultation, with the hopes that you might feel more prepared as you get ready for your own consultation.

Central Issues

There are three main topics that an estate planning attorney might want to discuss with you during your estate planning consultation: your family situation, your financial situation, and your goals and concerns as you begin your estate planning journey.

Your family situation is important because many times, clients want to leave their assets to a spouse, children, or grandchildren. The more your estate planning attorney can familiarize him or herself with your possible heirs, the more he or she can help you figure out a plan that works for everyone.

Can You Limit the Power Granted by a Power of Attorney in Texas?

Published on: January 31, 2024 | By McCulloch & Miller, PLLC

In Texas, power of attorney refers to a legal document that allows one individual to act on behalf of another individual. Power of attorney can look different depending on the specific circumstances, and the decision of whether to grant power of attorney is an inherently personal one. Today, we review some of the options for granting power of attorney, including whether you can limit the authority of the person to whom you grant this power.

The short answer to this question is that yes, you can limit the power granted by power of attorney. You can accomplish this goal in several ways. To start, you can grant power of attorney only for a specific period of time – for example, you can give someone authority to act on your behalf only until a specific task has been accomplished (for example, for the period of time in which you are filing your taxes or undergoing a surgery). You can also grant power of attorney only if you become incapacitated, only upon your death, or only until you decide to revoke the power of attorney.

You can also grant an individual “limited” power of attorney, meaning you give a person authority only within a very specific realm of your life. You might, for example, grant someone power to assign the legal title to a vehicle you own. You might also consider granting power of attorney only in a matter concerning tax collection, or only in a matter concerning your physical health. The list of options is limitless, and how you choose to grant power of attorney will depend on your specific set of circumstances.

What Happens to Your Firearms in Texas After You Die?

Published on: January 12, 2024 | By Thomas W. McCulloch

If you or a loved one own a firearm, you have hopefully started to think through what would happen to that firearm in the event of your death. In Texas, there are several considerations to keep in mind when planning for your firearms long term, and today’s blog post is intended to serve as a first step in helping you figure out how to make your plans a reality.

Passing a Firearm Through a Will

The most logical way to pass a firearm to a loved one is to include a provision in your will or estate plan. There are several complications to keep in mind. First of all, your intended beneficiary must be legally able to own a gun. If that person is prohibited from being listed on a gun registry or has any other restriction in place regarding possible firearm ownership, your estate executor will run into significant problems trying to pass the gun to the beneficiary after your death.

The estate executor himself must also be legally able to own a gun. Sometimes, this involves having a federal firearms license. Check with your estate executor and see if there are any possible impediments to his gun ownership – if there are, you are better off addressing those now than down the road, when time is of the essence.

Can a Beneficiary Inherit a Gift if They Received it During the Testator’s Lifetime?

Published on: January 10, 2024 | By David W. Miller

Many of our clients are parents or grandparents hoping to set up their heirs for financial success in the long term. One strategy that these clients use is the lifetime gift, which allows individuals to give money while still alive instead of through their estate plans. What are the implications, though, of this lifetime gift for a person’s estate planning documents? In today’s blog, we cover the overlap between these two types of gifts.

What is the Lifetime Gift Limit?

The government permits individuals to give financial gifts of a certain amount to beneficiaries of their choosing without facing tax consequences – this means the individuals can give money away while they are still alive without having to pay the federal gift tax. In 2024, the annual federal gift tax exclusion amount is $18,000 per person and $36,000 for married couple. This kind of gift allows individuals to give money away in increments over the course of their lives, perhaps to their children or their grandchildren.

Does the Lifetime Gift Prohibit Beneficiaries from Inheriting in a Will?

If a son, daughter, or grandchild inherits over the course of the parent or grandparent’s lifetime, he or she can still inherit at the parent or grandparent’s death. Importantly, however, if the estate documents are clear that the lifetime gift was intended to replace the will, trust, or estate document’s provision for a gift, the probate court will likely rule that the beneficiary cannot receive both gifts.

Who Will Inherit Your Digital Footprint in Texas?

Published on: December 27, 2023 | By Thomas W. McCulloch

Who Will Inherit Your Digital Footprint in Texas?

In 2024, the question of a decedent’s digital footprint is more relevant than ever. A digital footprint includes (but is not limited to) a person’s emails, texts, social media accounts, credit card accounts, cell phone data, and photographs – essentially, a digital footprint includes a wide array of personal information. As more questions arise about what will happen to this footprint upon an individual’s death, we look to Texas legislation, which has provided promising signs of progress.

Revised Uniform Fiduciary Access to Digital Access Act

In 2017, Texas enacted an Act, the Revised Uniform Fiduciary Access to Digital Access Act (sometimes referred to as “RUFADAA”), that dictates how an estate’s executor is able to access a decedent’s digital assets. Essentially, as long as the executor has valid legal authority and complies with each account’s terms of service, that executor can access the digital assets in question. There are certain restrictions under the Act – for example, it generally keeps the executor from accessing the decedent’s emails, texts, and social media accounts.

Probate and Incompetence: What Texas Residents Need to Know

Published on: December 19, 2023 | By Thomas W. McCulloch

Ideally, any individual drafting a will would be able to make decisions for him or herself. In reality, however, at times, there are competence issues, meaning that when a person is mentally incompetent or incapacitated, others might challenge that person’s will or estate plans down the line. In today’s blog, we cover the most important things you need to know about probate and incompetence, walking you through some of the steps that a Texas probate court might require in order to prove a decedent’s incompetence.

What is Incompetence?

In Texas, a person is deemed “incompetent” in the legal sense if he or she does not have sufficient mental ability to understand that he or she is making a will. If that person does not understand the will’s possible effects and/or know which people will inherit through the will, he or she might be deemed incompetent.

Courts rely on witnesses to speak about a person’s capacity, and courts generally want to hear about the person’s capacity on the day the will was written. If, for example, a decedent was mentally stable on the day of the will’s execution but mentally unstable from the next day onward, the court will only consider the day when he or she actually made pertinent decisions about the will.

What is a Pour-Over Will in Texas?

Published on: December 19, 2023 | By David W. Miller

As we have discussed on our blog in the past, there are plenty of tools available to Texans working on finding an estate planning strategy that works for them. Different kinds of trusts, wills, and gifts allow decedents to make sure their assets are protected in a way that benefits them and their loved ones. Today, we discuss the pour-over will as one possible tool to use in your estate planning process.

Pour-Over Will, Defined

In Texas, a pour-over will is a type of estate planning document that specifically stipulates that any assets not included in a decedent’s trust should be automatically transferred to the trust when he or she dies. Essentially, if a decedent has elected to organize his or her assets in the form of a trust, and if some assets slip through the cracks during the planning process, the pour-over will ensure that these assets will go directly into the individual’s trust upon death.

Benefits of the Pour-Over Will

A pour-over will represents a clear way to make sure all of your assets are covered in your estate plans. The pour-over will can also give you peace of mind, knowing that even if you fail to include any assets in your trust, you and your heirs are covered. Particularly if and when you have a complicated estate, this peace of mind can be invaluable.

Does Probate Always Require a Lawyer in Texas?

Published on: December 14, 2023 | By McCulloch & Miller, PLLC

At McCulloch & Miller, we understand the dilemma – paying for an attorney can be difficult, but you also don’t want to go through legal battles alone. During the probate process, it can be especially frustrating to navigate all of the procedural hurdles without an attorney. But is an attorney required? Today, we talk about whether attorneys are necessary in Texas probate proceedings.

The short answer to this question is that probate sometimes requires an attorney in Texas. Specifically, most probate courts in Texas do require that an estate’s executor hire a lawyer. The executor is responsible for looking out for not only his or her own interest, but the interests of the estate’s beneficiaries as well. Because of this dual role, most courts stipulate that the executors must retain an attorney during the probate process.

The most common situation in which an attorney is not needed for probate is when the decedent’s will is probated as a muniment of title. We have discussed muniments of title previously on our blog, but for a short overview, muniment of title is essentially a shortened probate process that is available when the estate has (1) no unsecured debts and (2) only real property and cash accounts. If the estate qualifies for muniment of title, the executor can move forward without hiring a lawyer at all.