Will Category Archives — Houston Estate Planning and Elder Law Attorney Blog Published by Houston, Texas Estate Planning and Elder Lawyers

What Happens If You Die Without Naming a Guardian for Minor Children in Texas?

Published on: January 7, 2025 | By David W. Miller

If you have minor children, you know how important it is to plan and prepare. One difficult part of parenting that many parents find tough is thinking through what happens to your children if something ever happens to you. If you were to die or become incapacitated, who would take care of your kids? And how does this question relate to estate planning?

Last Will and Testament

Ideally, your last will and testament will name a person that can take responsibility for your kids if you die or become incapacitated. You should discuss this possibility with the person you name beforehand, making sure you are both on the same page. Also in an ideal world, you will have a trust set up for your children; the person you name as caretaker can then have access to the trust in order to provide for your children financially in the short- and long-term futures.

Court-Appointed Guardian

If you were to die without including this provision in your estate planning documents, a court will have to step in to appoint someone to take care of your children. The court will likely choose a surviving family member, such as a grandparent or an aunt or uncle. The reality, however, is that it takes the court time to go through the necessary proceedings to appoint a guardian. In the meantime, it could be legally unclear who has the right or responsibility to take care of your kids.

If multiple relatives or close friends think they should be the one to care for your child, a fight could ensue in court. Even worse, if no one thinks it is their responsibility to care for your child, the court could be forced to put your child in a state-run program such as foster care.

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).

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.

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.

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.

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.

A Will or a Trust: Which is Right for You?

Published on: August 29, 2024 | By McCulloch & Miller, PLLC

There is no “one size fits all” approach to estate planning. Each person brings his or her own set of circumstances, goals, and opportunities to the table. One of the first questions we discuss with our potential clients during a first meeting is whether they would like to move forward with a will or a trust. There are basic differences between the two tools, and these differences can help clients decide which tool (if either) is right for them and their families.

How Much Do You Value Privacy?

If it is important to you for your assets, debts, and estate plan to be kept private, a trust might be better for you. A will passes through probate court, meaning a judge will have to validate the will before approving the distribution of the assets. These proceedings become part of the public record. A trust, on the other hand, allows you to forego probate altogether, which shields your estate plan from public view.

How Complex is Your Estate?

In general, a more complex estate lends itself better to a trust than to a will. While there are certainly exceptions to this rule, if you have assets such as an interest in a business, multiple real estate properties, or significant investments, you may want to consider a trust over a will. It is sometimes easier to tailor a trust to a client’s specific estate, and if you have a complex estate, the trust might allow you to more easily meet your personalized goals.

When a Will May Not Be Enough for Your Estate Plan

Published on: July 17, 2024 | By Thomas W. McCulloch

Many times, prospective clients come to us for an initial consultation asking for help writing a will. While the will can be a valuable tool in estate planning, there are times when writing a will may not be enough. Today, we cover some reasons that your estate plan might need more than a will. As always, to talk more about the specifics of your estate and the planning process ahead, contacted a trusted Houston estate planning attorney that can walk you through your next steps.

Reason 1: Avoiding Probate

The first and most obvious reason to explore an estate planning tool outside of the will is that you want your loved ones to avoid probate after you are gone. A will is generally subject to probate, meaning a probate court reviews the will and decides if it is valid. Only after deciding the will is valid does the court approve the will so that beneficiaries can receive their assets. Probate takes time and resources that many people don’t have or don’t want to expend.

By using a trust instead of a will, you can oftentimes avoid probate altogether. The trust allows property and assets to go straight to beneficiaries instead of through the intermediary of the probate court. This allows for more efficiency, both in terms of cost and time.

What is the Difference Between a Will and a Trust?

Published on: July 3, 2024 | By David W. Miller

As our client community knows, there are many tools available for individuals undergoing the estate planning process. Two of these tools are the will and the trust, and there are important differences between the two. To find out whether a will or a trust is better for your individualized estate plan, we always recommend that you contact an experienced Houston estate planning attorney that can apply the law to your goals and circumstances.

What is a Will?

In short, a will is a legal document that dictates how your property will be distributed upon your death. The will typically lists assets the beneficiaries, and it provides instructions for how exactly to dole out these assets. The probate court is typically involved in making sure the will is valid and in giving a stamp of approval to distribute the will’s assets.

What is a Trust?

A trust, on the other hand, is not a legal document but a legal contract. The trust puts assets into an account, and that account is managed by another person. A trust also has beneficiaries, just like a will. The trust, though, directs the manager (the “trustee”) to distribute the assets in a way that aligns with the trust’s goals.

Are Online Wills a Good Idea in Texas?

Published on: June 22, 2024 | By Thomas W. McCulloch

In the year 2024, it can be tempting to bypass traditional legal services in favor of getting things done online. Many clients ask us about online wills: are they a good idea? What are the advantages and disadvantages? At McCulloch & Miller, we have an adage: online wills work until they don’t work. Today’s blog will explore this topic a bit more in depth.

Advantages of Online Wills

By using an online tool to create your will, you can avoid many of the costs associated with estate planning. You can generally draft a will pretty quickly online, which leads many individuals to resort to an online will when they are in a pinch and feel as if they might not have much time left.

Disadvantages of Online Wills

The disadvantages of online wills are, in essence, everything else. The online will is a generalized tool that struggles to account for each person’s individualized circumstances. Take an example: say you leave your assets to your son, Bill. What happens if Bill is no longer alive by the time your will takes effect? Do the assets go to Bill’s wife? Do they go to his children? Do they go to someone else altogether? It is important to keep these contingencies in mind, and each person’s set of circumstances is different, requiring different language in his or her will.