Estate Planning

What Is the Difference Between a Dependent and Independent Probate Administration?

Published on: August 14, 2023 | By David W. Miller

In thinking through the probate process, there are various nuances and procedures that are important to keep in mind. One term that you might hear while undergoing probate is “dependent administration” vs. “independent administration.” While there are similarities between dependent and independent administration, it is also important to know the difference between the two as you prepare to complete the probate process.

What is Independent Administration?

As we have discussed previously on our blog, the executor of an estate is the person in charge of setting a decedent’s estate. In Texas, independent administration allows an estate’s executor to have minimal court supervision during the probate process. This kind of administration is only allowed if the descendent named a specific executor in his or her will, or if all of the estate’s beneficiaries agree to a specific executor.

When one of these two conditions is met, the court is then minimally involved in the probate process. Typically, all that needs to happen for probate to move forward is that the judge must approve the list of assets in the decedent’s estate. The estate’s executor can then distribute the assets from there.

How Divorce Affects Your Texas Estate Plan

Published on: August 11, 2023 | By Thomas W. McCulloch

At McCulloch & Miller, we always advise our clients to begin their estate planning processes on the early side. The reality for many clients, however, is that life circumstances change as time goes on, which is why it is important to update your estate plan as you experience significant shifts in your life. Importantly, divorce can have implications for those who have already laid out their estate plans. If you have gone through a divorce, it is important that you speak with an estate planning attorney as soon as possible so that you can make sure your affairs are in order.

How Does Divorce Change My Estate Plans?

If you have named your spouse as the main beneficiary in your estate, he or she will likely remain the beneficiary until you actively make a change in your estate plan. Thus, even if you get divorced and no longer want your ex-spouse to be named in your will, you cannot just assume that divorcing that person will remove him or her from your estate plan. You must update your estate plan to specify which assets, if any, you would like to leave for your former spouse.

How Do I Update My Estate Plans?

To update your estate plans after a divorce, there are several things to keep in mind. First, you will want to consider revoking your previous will so that no one questions whether or not it still stands after your death. By revoking the will entirely, you can leave no room for doubt that your wishes are encapsulated in your new estate planning document.

Estate Planning Basics: How to Revoke a Texas Power of Attorney

Published on: August 6, 2023 | By David W. Miller

Estate Planning Basics: How to Revoke a Texas Power of Attorney

In the past, we have covered power of attorney on our estate planning blog, reviewing when it might be appropriate to have someone step in to make medical decisions on your behalf. As discussed, the concept of “power of attorney” allows another individual to make decisions on your behalf. The individual will only be able to make decisions for you, however, if you are both incapacitated and declared incapacitated by your doctor.

There are times when individuals want to revoke the power of attorney they have assigned, such as when the power of attorney is not performing his or her duties diligently when there are signs of elder abuse, or when there is another person that might be better suited for the job. Today, we review this process and clarify the steps necessary to revoke a Texas power of attorney.

What Steps Are Required in Texas to Revoke a Power of Attorney?

There are several possible avenues you can take if you would like to take away power of attorney from an individual you’ve previously assigned to the role. As long as you are physically and mentally able to revoke the position, you can complete these steps at any time.

A Guide to Replacing Important–But Lost– Documents in Texas

Published on: July 31, 2023 | By Thomas W. McCulloch

A Guide to Replacing Important–But Lost– Documents in Texas

One of the most important – and dreaded – parts of estate planning is gathering all of the necessary documents to make sure no stone is left unturned. From birth certificates and marriage licenses to vehicle titles and tax returns, the number of documents to sort through can feel overwhelming. If you are beginning this process and you have discovered that you’ve lost one or more of your important documents, don’t fret – you are not alone. Today’s blog will focus on how to replace what you need in order to move forward in your estate planning process.

How to Replace Your Documents

The process for replacing lost documents depends on the type of document and the circumstances under which you need to replace them. Most commonly, in our practice, we meet with clients who have no idea where their birth certificates might be located. To start replacing a birth certificate, contact to Texas Department of State Health Services here. You can fill out a regular or expedited request to receive your birth certificate.

For marriage licenses, you must contact the specific court at which you obtained your marriage license. By searching for the court and contacting the court’s clerk, you can get copies of your marriage license mailed to you. For divorce decrees, the process is the same.

Replacing a driver’s license can be more complicated. To go about getting a new license, you must apply in person at any DMV office with a completed form DL-43. You will also need to bring documents that prove you are who you say you are – for example, a passport, a birth certificate, or another piece of paper that verifies your identity.

Understanding Special Deeds In Texas

Published on: July 26, 2023 | By McCulloch & Miller, PLLC

The thought of organizing assets for loved ones after your death can feel daunting, especially when the Texas probate process seems so complex. Avoiding probate is possible, though, with the right tools, circumstances, and expertise on your side. One way to bypass probate with regards to real estate is the special deed, which allows for property to transfer from the descendent to the beneficiary more efficiently than it would through probate. On today’s blog, we review the special deed and some of its characteristics to keep in mind when undergoing the estate planning process.

What is a Special Deed?

A special deed is a legal document that transfers real estate from one person to another. When a property owner dies, if there is a valid special deed, that property does not need to go through probate at all.

How Can You Give Another Person the Ability to Make Medical Decisions on Your Behalf?

Published on: July 24, 2023 | By McCulloch & Miller, PLLC

How Can You Give Another Person the Ability to Make Medical Decisions on Your Behalf?

Planning for emergencies is a key part of thinking through your long-term care needs. Importantly, naming an individual to make medical decisions on your behalf, in the event of your inability to make decisions for yourself, is a good way to ensure that you have a solid plan in place in case of the worst. In today’s blog, we discuss medical power of attorney and how it might be helpful for you.

What Is “Medical Power of Attorney”?

In Texas, you can appoint an individual as your “medical power of attorney.” This means that if you are incapacitated, the person you have appointed can make medical decisions on your behalf. The individual will only be able to make decisions if you are both incapacitated and declared incapacitated by your physician. If you have even a slight ability to make decisions for yourself, your medical power of attorney will not be able to step in. Additionally, once you regain competency, the medical power of attorney automatically loses his or her ability to make decisions on your behalf.

Why Name a Medical Power of Attorney?

Many clients who are married ask us why they should name a medical power of attorney in the first place. According to Texas law, if you are married and you become incapacitated, your spouse is the first person in line to make decisions on your behalf.

Why a Disposition of Remains Document Should be Included in Your Estate Plan

Published on: July 16, 2023 | By McCulloch & Miller, PLLC

Part of the estate planning process necessarily involves difficult conversations and difficult decisions. One topic that many individuals can be hesitant to discuss is the “disposition of remains” document. While sometimes unpleasant to talk about, this document can be a key part of your estate plan that requires careful care and consideration. Additionally, estate planning lawyers can provide you with some eloquent and less-awkward ways of bringing up otherwise difficult conversations. Moreover, at the end of the day, even if a conversation is uncomfortable, it may be critical to ensuring your wishes are honored.

What is the Disposition of Remains Document?

A disposition of remains lays out what you want to happen with your body after your passing. You can dictate whether you want to be buried or cremated, as well as any specific requests about the process.

What Does the Disposition of Remains Entail?

One essential part of the disposition of remains is choosing an individual, or an agent, that will handle your remains. Choosing an agent is a delicate process, as you want it to be someone that you trust to carry out your wishes accurately. If you decide not to choose an agent, your “next of kin” will be the person to decide what happens with your body – this would be your surviving spouse, or in the alternative any adult children, parents, or siblings that you have left behind.

What is Muniment of Title in Texas?

Published on: July 10, 2023 | By Thomas W. McCulloch

As many individuals in Texas know all too well, the probate process can be long and drawn out. Waiting for a decedent’s assets to be distributed can take months, which often makes things difficult for beneficiaries who might need more immediate access to their loved one’s funds. In Texas, however, there is an option called Muniment of Title that allows for a quicker probate process. Muniment of Title is not for everyone, and there are certain procedural requirements that individuals must consider when thinking about whether to use this option in their estate planning strategies.

What is Muniment of Title?

The word muniment literally refers to documents that allow an individual to defend his or her right to an estate. Muniment of Title, then, is a specific tool in the probate process that shortens the time necessary for probate to move to completion.

In Texas, the Muniment of Title is discussed in the Estates Code Chapter 257. The provision states that when a person dies with a will, and without any debts, that person can potentially use Muniment of Title to bypass some of the procedural and logistical requirements of probate.

What is a Texas Affidavit of Heirship?

Published on: July 10, 2023 | By David W. Miller

Among the many tools available to those sorting through a loved one’s estate, the affidavit of heirship can be particularly useful for individuals whose loved ones might not have left behind a will. In Texas, the affidavit of heirship can be an incredibly practical way to transfer property ownership from a decedent to his or her heirs, but the process involves several procedural hoops that are important to keep in mind. At McCulloch & Miller, we help clients deal with these sorts of filings with the ultimate hope of helping them achieve their familial and financial goals.

What is an Affidavit of Heirship?

The affidavit of heirship is a document that a decedent’s heirs can submit to the probate court. It is typically used in two different scenarios: 1) when the decedent did not leave behind a will and 2) when the decedent’s estate did not pass through probate in the first four years after his or her death.

The affidavit allows heirs to receive property that the decedent intended to leave for them. By submitting the affidavit, heirs can essentially ask the court to transfer title of their loved one’s property to their own name(s).

Probating a Texas Will if You Don’t Know All the Deceased’s Heirs

Published on: July 3, 2023 | By Thomas W. McCulloch

Sometimes, a decedent leaves behind property, and it is unclear who the property belongs to after the decedent is gone. Under the right circumstances, interested parties in Texas can file an affidavit to determine heirship, which allows the probate court to sort out who should get the property in question or who makes up the deceased’s heirs. Today, we walk you through the basics of this affidavit, so you can figure out if it might be right for you.

What is an Affidavit to Determine Heirship?

In Texas, individuals can file an affidavit to determine heirship if they want a court to determine who qualifies as a decedent’s heir and who gets property that was left behind by the descendent. These affidavits can be helpful either when a decedent’s estate has not yet been administered or when a decedent’s property was left out of his or her estate plan.

What Happens When a Court Receives an Affidavit to Determine Heirship?

Once an individual files an affidavit to determine heirship, the court holds a proceeding to reach a conclusion on who should receive the decedent’s property. The court will consider several factors, including: whether the decedent was married, whether the decedent had children, and if the property has been inhabited by other individuals in the recent past. After weighing the relevant factors, the court will issue a decision as to who qualifies as the heirs to the property.