Estate Planning

Avoiding Probate Disputes Over Collectibles and Heirlooms

Published on: January 14, 2025 | By Thomas W. McCulloch

So many factors go into a person’s estate plan, including a thoughtful inventory of the planner’s assets and a careful decision about how to divide those assets up. At our firm, we sometimes encounter difficult probate disputes over a decedent’s collectibles and heirlooms. On today’s blog, we cover some basic tools you can implement to avoid probate disputes over priceless items.

Create a Detailed Estate Plan

Because a family’s collectibles and heirlooms can often include an emotional value as opposed to just a monetary value, it is best to include detailed instructions about how you want those items to be distributed. Your estate plan should go beyond a typical list of monetary assets and debts. You should write a thorough list of items that you know your heirs might want to inherit, and you should include instructions for exactly who gets which item.

Communicate with Your Loved Ones

It will work out for everyone’s benefit if your loved ones know what to expect when you pass. We always recommend communicating early and often about your collectibles and heirlooms so that your heirs can have a clear understanding of how the items will be passed down. This way, you can also grasp which heirs feel a specific tie to which specific items, and you can keep this in mind when you develop your estate plan.

Updating Your Estate Plan After a Major Life Event

Published on: January 7, 2025 | By McCulloch & Miller, PLLC

Updating Your Estate Plan After a Major Life Event

If you have drafted your estate plan with the help of an attorney, know that you are on the right track to ensuring your assets are protected long after you are gone. It is also important, however, to update your estate plan at various points in your life. When do you need to update your plan? And how do you go about making this happen? Today’s blog answers these questions, with the goal of helping you understand what your possible next steps might be in the estate planning process.

When to Update Your Estate Plan

As a general rule, we recommend updating your estate plan every three to five years. Additionally, though, we recommend updating the plan after any major life event. These life events could include (but are not limited to) the following: a marriage, a divorce, the birth of a child, the death of a beneficiary, the initiation of child support or alimony payments, or a change in your wealth. These are all events that could significantly impact the estate plan you have already drafted.

Too often, we encounter estate plans that were once relevant, before major changes occurred in a decedent’s life. When the decedent’s family is left to sort through his or her estate plan, they have to deal with the fact that even though the plan might no longer be relevant, it is still the authority on the assets the decedent left behind. It is best to avoid this unfortunate reality by making sure your estate plan is up to date with your current reality.

The Impact of Oil and Gas Royalties on Texas Probate Proceedings

Published on: December 27, 2024 | By McCulloch & Miller, PLLC

The Impact of Oil and Gas Royalties on Texas Probate Proceedings

For many of our clients in Texas, oil and gas royalties are a part of economic success. How do these royalties play into an estate plan? How are they part of probate proceedings? On today’s blog, we discuss the basics that our clients need to know in relation to this industry; as always, with more specific questions, contact a Houston estate planning attorney you can trust.

Distribution of Royalties Without an Estate Plan

If a Texas landowner dies without an estate plan, and that landowner has the right to oil and gas royalties from the minerals on their property, the royalties will likely follow the rules of intestate succession. This means that the state of Texas will pass the royalties onto surviving heirs according to the state’s mandated family order.

If there is a surviving spouse, the royalties will go to that person. If there are children but no spouse, the assets will go to the children. If there is a spouse and there are children, the spouse will receive one-third of the royalties, while the children receive the other two-thirds of the royalties. The order of intestate succession can be further complicated when there are disputes among family members about who has the right to the royalties at issue.

What Happens When a Texas Executor Fails to Fulfill Their Duties

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

Probate is already a stressful process; if an executor fails to fulfill their duties, the process can be even more stressful than it needs to be. While in an ideal world, every estate executor would operate in a timely and thorough manner, this is not always the case. What happens, then, when a Texas executor fails to fulfill their duties under the law?

What is an Estate Executor?

An estate executor is the person responsible for handling a decedent’s estate once that person dies. The executor has responsibilities such as paying the decedent’s remaining taxes and debts, notifying beneficiaries, maintaining an accurate list of the decedent’s assets, initiating proceedings in the corresponding probate court, and distributing assets to the decedent’s loved ones once everything has been approved. The executor is responsible for completing all of these steps in a timely manner.

Options if an Executor Does Not Do Their Job

If a beneficiary is concerned that an estate executor has failed to fulfill their duties, there are several options available. The first and perhaps most sensible option is to file a notice in the probate court, advising the court that the executor has not acted according to their responsibilities. This petition can ask the court to appoint a new executor. While this process can take time, it is often the best option in the long run if the executor is failing act in good faith. Once the court appoints a new executor, that executor will take over the probate process.

The Role of Independent Executors in Texas Probate

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

As you may know, an estate executor is a person appointed by an individual to carry out the terms of his or her will. In Texas, there is a distinction between an independent executor and a dependent executor. An independent executor has the authority to carry out the will’s terms with minimal court supervision. A dependent executor, on the other hand, needs court approval for most of what he or she needs to do. On today’s blog, we review some of the basic responsibilities and challenges of the independent executor.

Benefits of the Independent Executor

It might be obvious that the independent executor saves time and money, given that there is less court intervention needed during probate. Many estates with an independent executor benefit from quicker estate settlement because the executor can move forward with minimal need for the court’s involvement.

Roles of the Independent Executor

The independent executor has a wide range of responsibilities, including taking stock of the estate’s assets, ensuring debts and taxes are paid, and doling out the estate’s remaining assets to the testator’s beneficiaries. Independent executors have the authority to make decisions about the possible sale of property, settlement of claims, and distribution of assets without involving the court.

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).