Estate Planning

What You Need to Know About Probating a Will in Texas

Published on: October 30, 2023 | By David W. Miller

There is so much about probating a will that can be difficult to figure out, and without the right information at your fingertips, it can be easy to let parts of the process fall through the cracks. If you have a loved one that has recently passed and you need to make sure his or her will goes through probate, you want to make sure you leave no stone uncovered. By working diligently, you can finish up probate as efficiently and thoroughly as possible, enabling yourself to move forward with your life after the process is complete.

How Do I Begin Probating a Will?

If your loved one has passed, and that person did leave a will, the first thing you will have to do is file an application for probate with the court. Importantly, there are different probate courts in Texas, and you will want to make sure you file the application with the court in your area (i.e., your jurisdiction). As a general rule, loved ones have four years from a decedent’s death to file an application for probate.

What Will the Probate Court Require Before Approving a Will?

The probate court will first require you to wait for a period of time so that it can provide notice to anyone who might think he or she has a right to the decedent’s assets. After this period of time (typically two weeks), the court will hold a hearing. At this hearing, the judge will decide whether the decedent’s will is valid.

Estate Planning for Art Collectors in Texas

Published on: October 23, 2023 | By David W. Miller

For those of our clients who own and collect art, their pieces are a source of pride, joy, and shared history. When these same clients go to draft their estate plans, we always advise them to include specific provisions regarding their art, so that they can ensure their collection is well-protected after their passing. To better understand how to handle your art as part of your estate plan, keep the following tips and information in mind.

Why Should I Include My Art in My Estate Plan?

Many individuals view their art differently than their other assets, in that they have a personal connection to many of their pieces. Compared to assets like a vehicle, electronics, or even real estate, art can hold a unique place in a person’s life. When not included in an estate plan, a decedent’s art collection is typically distributed to the person’s “residual beneficiaries,” or those that receive the property not specifically left to another designated beneficiary.
Your artwork could thus go to a broad category of people if you do not stipulate otherwise – for example, it might go to your grandchildren or your nieces and nephews. When there are individual art pieces to sort through, it can be difficult for these groups of beneficiaries to decide who gets which piece. To avoid this conflict, you should include in your will a provision about which individual will receive which specific piece of art.

Details to Keep in Mind

If you are adding your art collection to your will, the first thing you will want to remember is to describe each piece in enough detail for your beneficiaries to identify it easily. By including the Getty Object ID as well as thoughtful descriptors, you can ensure nothing gets lost in the shuffle after your passing.

Planning for Incapacity in Texas: How to Prepare for the Unexpected

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

At McCulloch & Miller, we know all too well that the best strategy in estate planning and elder law is, without a doubt, planning ahead. One of the biggest difficulties that adults in Texas face is figuring out how to overcome legal barriers that could have been avoided with proper preparation. Specifically, planning for eventual incapacity can be helpful when thinking about what is best for you and your family in the future.

What is the Definition of “Incapacity” in Texas?

Under the law in Texas, a person is incapacitated when he or she is either a minor or an adult who is unable to provide for his or her basic needs, physical health, or financial affairs. Oftentimes, to meet this definition, the individual’s treating physician must sign a notarized document that confirms the patient is incapacitated.

How Do I Plan for Incapacity?

Of course, we can never know if or when we will become incapacitated. In order to prepare and have a plan in place just in case of the worst, many of our clients elect to appoint a power of attorney. This individual is someone who can make decisions on the incapacitated person’s behalf, whether those decisions revolve around finances or medical decisions.

When Do You Need a Letter of Testamentary?

Published on: October 17, 2023 | By David W. Miller

On our last blog, we began discussing letters of testamentary. These letters are documents produced by a probate court that allow an executor to prove that he or she has the authority to administer a decedent’s estate. To take it a step further, today we discuss when you might need a letter of testamentary, so that you can have a better understanding of the context in which these letters come into play.

The letter of testamentary is important for the executor of an estate. An estate’s executor is the person who is responsible for carrying out a deceased person’s last will and testament. Sometimes, when the executor starts to organize, disburse, or use the funds in a decedent’s estate, he or she needs the letter of testamentary to prove that he or she has the authority to withdraw money from certain accounts or use the money for certain purposes.

For example, an executor might need a letter of testamentary to access a decedent’s bank account, pay off the decedent’s debts, or distribute the decedent’s assets to his or her loved ones. There are also very practical circumstances in which a letter of testamentary could come into play – for example, the executor might need the letter when paying for funeral expenses or when making sure that the decedent’s loved ones receive proceeds from the individual’s life insurance.

What is a Letter of Testamentary in Texas?

Published on: October 13, 2023 | By Thomas W. McCulloch

The probate process can be complicated. Often, our clients come to us overwhelmed by how many steps can be involved and how many hurdles they have to jump through. One such hurdle can be a letter of testamentary, which is sometimes produced during probate proceedings. Today’s blog will cover the basics of letters of testamentary, but to make sure you properly address the procedural requirements in your own probate case, the best thing you can do for yourself is to speak with a Texas estate planning attorney who knows the ins and outs of the process.

Who Provides the Letter of Testamentary?

Oftentimes, a probate court will provide an estate executor with a letter of testamentary. This letter is a document that the executor can take to a bank, a financial institution, a creditor, or any other party that needs to release funds belonging to the decedent. Oftentimes, financial institutions will only release a decedent’s funds if the executor shows up with this official letter of testamentary, proving that the probate court has authorized the distribution of funds.

Letters of testamentary, in short, give the executor the authority that he or she needs in order to fulfill the job of the executor. If a decedent says in his will, for example, that all of the money in his bank account will go to his children, the letter of testamentary gives the executor the power to retrieve the money from the bank (so that the children can then receive the funds).

Why Hire a Texas Estate Planning Attorney?

Published on: October 13, 2023 | By David W. Miller

In Texas, attorneys are not required by the court for estate planning purposes; however, navigating the process without an attorney can end up costing more time and resources given the many steps that are involved in estate planning. If you are debating whether or not to hire an estate planning attorney for your Texas estate, there are several reasons to consider calling a trusted firm to offer you advice.

Navigating Procedural Hurdles

In Texas, a decedent’s estate plan must generally go through probate. This means that a probate court must decide that the decedent’s will or estate plan is valid before the heirs are entitled to receive the decedent’s assets. The more complex a person’s estate, the more time-intensive this process can be.

Probate court can be a difficult forum to navigate. Filing your documents at the right time, in the correct jurisdictional court, and with the right information is a complicated process. Because it is so easy to miss a step when appearing before a probate court, it is helpful to have an attorney who can ensure everything goes smoothly the first time around.

Estate Planning for Blended Families Living in Houston

Published on: September 23, 2023 | By Thomas W. McCulloch

In today’s blog, we offer estate planning tips and strategies for blended families in Houston, with the goal of ensuring that all members of the family are considered. For many of our clients in non-traditional families, there can be important questions about how to make sure nothing goes awry upon one individual’s death. There are important strategies to keep in mind, and ultimately, speaking with an estate planning attorney is the best thing you can to in this situation to make sure your needs are covered.

What is a Blended Family?

A blended family is one that consists of a couple and their children from previous relationships. If you and your spouse have both children and stepchildren, you might have different goals for what you will leave behind for each set of children, which can be difficult to navigate if you have been accustomed to more straightforward methods of estate planning in the past.

What Should Blended Families Keep in Mind During Estate Planning?

For those who die without a will in Texas, their assets will generally go to their spouse. For those who have children from a previous marriage, however, things can look different. If a decedent in a blended family owns property with his or her spouse, part of the property will be left to the surviving spouse, and the other half will go to the children from the decedent’s prior marriage.

Should I Put My Children in Charge of Everything as I Age?

Published on: September 22, 2023 | By David W. Miller

Should I Put My Children in Charge of Everything as I Age?

As parents grow older, it is natural for families to experience a shift as children begin taking on more of a caretaking role. This shift can be a delicate process, and we have many clients come to us, asking whether it is wise to put their children in charge of their finances, estate, and affairs as they age. Today, we talk through some of the intricacies of this approach, recognizing that a different strategy will likely work for every family.

Power of Attorney

One way in which many parents give their children more responsibility is by making them “power of attorney,” authorizing their children to make decisions on their behalf. In Texas, a power of attorney can only act on behalf of an individual when explicitly authorized to do so.

Financially speaking, a power of attorney can manage a person’s business dealings if the individual wants someone else to take care of these dealings for them. In contrast, a medical power of attorney only becomes effective when an individual becomes incapacitated, allowing the power of attorney to make medical decisions in the individual’s best interest. Texas also offers the option of appointing a “limited power of attorney,” which allows individuals to appoint a power of attorney for one particular action, like purchasing a vehicle or handling tax-related matters.

Why Now Is a Good Time to Start Thinking About Estate Planning

Published on: September 15, 2023 | By David W. Miller

At McCulloch & Miller, we often speak with clients who struggle to find the motivation to begin their estate planning processes. Once we make clear to these clients just how important estate planning can be in Texas, their interest grows in getting started as soon as possible. With so much on the line, we try to emphasize to our clients that estate planning does not have to be difficult but that it is still an extremely important process that deserves their full attention.

What Is Estate Planning?

Importantly, estate planning is not only the process of creating a will. Estate planning allows you to protect your property and ensure that your assets are distributed exactly as you want them to be distributed in the event of your death. Estate planning can include drafting wills, establishing trusts, naming beneficiaries, and designating a power of attorney in case of incapacitation. Estate planning can also help you figure out how to save money on taxes, which benefits you in the present as well as your loved ones in the future.

What Happens Without an Estate Plan?

In Texas, when a person dies, his or her loved ones must go through the probate process so that a court can determine how to divide up his or her assets. Without estate planning documents on hand, this process can be costly, drawn out, and draining. The lack of a solid estate plan can also lead to high levels of tension among family members while the court tries to determine how to divide the decedent’s money and property.

The importance of Understanding All Tax Implications When Estate Planning

Published on: September 14, 2023 | By Thomas W. McCulloch

One of the most frustrating aspects of estate planning can be having to pay out a percentage of assets to the government or to others who have a claim on your estate. In Texas, tax implications depend on the estate strategy that you choose. Today, we review some of the tax implications of estate planning with an eye toward minimizing tax liability.

What is an Estate Tax?

Texas is one of 38 states that does not require residents to pay an estate tax. In states without this benefit, an individual’s estate will have to pay a certain percentage of their assets to the state government upon that person’s death. This is good news: by living in Texas, you already avoid a tax that residents of some other states will have to pay.

Texans do, however, still pay a federal estate tax. This kind of tax can be generally broken up into three different taxes: the estate tax, the gift tax, and the generation-skipping transfer tax.