Articles Posted in Will

Estate plans are crucial to protecting loved ones and ensuring peace of mind. Despite thorough planning, unexpected events can happen that may change the disposition of a person’s assets. An experienced Texas estate planning attorney can work with individuals to plan for the unexpected.

What is a Beneficiary under Texas Law?

Broadly, a beneficiary is any individual who gains an advantage or profits from something. In the context of a Texas estate plan, beneficiaries refer to the individual who stands to inherit a decedent’s assets. The creator of an estate (Testator) typically designates these individuals through a will or trust.

Comprehensive estate plans often include primary beneficiaries and contingent beneficiaries. Additionally, beneficiaries do not have to be individuals or categories of individuals, such as grandchildren. The law permits testators to include organizations, such as non-profits, as beneficiaries. Primary beneficiaries are the first individual or organizations to inherit assets under the will. In contrast, contingent beneficiaries are those who are “second in line” to the primary beneficiary. Contingent beneficiaries only inherit assets in cases where the primary beneficiary cannot, for instance, if the primary beneficiary predeceases the Testator.

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Under Texas law, individuals (testators) may create a revocable living trust which allows them to use their assets during their lifetime and subsequently securely transfer them to their designated beneficiaries after the testator’s death. These trusts protect the testator if they become mentally incapacitated. With a revocable living trust, the testator’s assets are controlled, owned, and managed by the trust, eliminating the need for a conservatorship proceeding.

Pour-over wills are typically used in conjunction with a revocable living trust. A pour-over will refer to a specific type of will that assists in facilitating the transfer of assets in the event that the testator neglected to transfer all intended assets. Pour-over provisions can integrate the administration of a trust and probate assets.

Benefits of Pour-Over Wills

Carrying out a decedent’s wishes should be of utmost importance, and pour-over wills are another tool to meet this goal. There are many advantages of pour-over wills, including:

  • Simplicity: These documents allow an executor to efficiently wrap up a decedent’s estate after death.
  • Totality: A pour-over will address all the assets that a testator could not handle or transfer before death.
  • Privacy: Pour-over wills are part of a trust and, therefore, do not automatically become public after the testator’s death. They remain more private than will.
  • A pour-over will is a critical part of estate planning and can create a safety net that brings peace and certainty to an otherwise emotionally daunting process.

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There are two primary types of wills under Texas law: 1) holographic and 2) non-holographic wills. Non-holographic wills are typed, witnesses, and attested wills. In contrast, holographic wills refer to entirely handwritten wills. In Texas, holographic wills are only enforceable when the entire document is written in the testator’s handwriting. While holographic wills might be valid and legally enforceable, more often than not, they result in Texas estate and probate disputes.

A notable example of the dangers of holographic wills involves the popular music group The Monkees. Michael Nesmith, a group member, left a lengthy will leaving his entire estate to his mother’s foundation. However, there were issues with the will’s legality because it was handwritten.

Holographic Will Formation in Texas

Handwritten will appeal to many people who believe that their situations are simple enough that they do not need the assistance of an attorney. However, making a holographic will in Texas requires strict adherence to complex estate laws.

Valid Texas holographic wills require the testator to clearly indicate all items in the will, the recipients of the items, and who should serve as an “independent executor.” In addition, the testator should take steps to ensure that the independent executor knows that the will is valid.

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Life happens, we get it. Therefore, most individuals put off estate planning. However, there are major downsides when this is avoided for too long and they unexpectedly pass away. When someone dies without a will, it is called dying intestate. There are many consequences dying intestate in Texas, including that the decedent does not get to choose who will receive their assets— their funds, property, and items. Because there are benefits to drafting an estate plan and ensuring one does not die intestate, below are examples of the dangers of intestate property and resolution to this issue.

What Problems Can Arise from Not Having an Estate Plan?

When someone dies without a will, they do not have the ability to decide who will receive their possessions. This occurred to famous artist Henry Darger, whose family entered into a long-drawn-out legal battle. When Darger died without a will in place, his landlords—who helped bring notoriety to his art—had ownership of his pieces of art, some of which have been appraised at close to $800,000. Now, long-lost relatives of Darger have filed a lawsuit, arguing they are the rightful beneficiaries of his property. The landlords are arguing that Darger told them that they could keep or discard his possessions.

There is a common misconception amongst lower- and middle-class families that estate planning is only for the wealthy. They assume if they do not have many assets—if any—to give to loved ones, there is no point in having a will in place. However, this is not the case. Everyone should draft an estate plan, regardless of their financial or family situation. There are multiple documents that should be included in an estate plan in order to remove a family’s stress in navigating life after a person’s death.

A Last Will and Testament 

A last will and testament, or a will, is the most important estate planning document a person can have. A will explains how assets should be handled after a person passes away. The will should also state who should be given the assets—these individuals are called beneficiaries. If all assets are not being left to the same person, the document should clearly state who is receiving what assets and property. Additionally, the will should name an individual to administer the estate; this person is called the executor of the will. If the drafter of the will has any minor children, it is also important to name a guardian for their children. This limits the potential for disputes, where family is fighting over who is the legal guardian of the child.

Whether you are young or old, married or unmarried, parenting or childfree, you need a will. A will is a basic courtesy to the loved ones left behind after someone’s passing. Even for people with minimal assets, a will is an appropriate Houston estate planning tool to ensure that any final wishes will be honored and to ease the burden on family and friends of making final arrangements.

Moreover, in Texas, when someone dies without a will, the state decides who gets the deceased individual’s assets, with zero regard to what may be obvious personal preferences. The operation of this law has led to countless unfortunate outcomes, such as estranged spouses getting the entirety of an estate that should have gone to the deceased spouse’s children.

For these reasons, it is important to write and then maintain an updated will from the time one enters adulthood. Fortunately, writing a will need not be a complicated nor burdensome process. For many people, a basic will drafted online or with a lawyer at an affordable rate will suffice.

“Do I need a will if I don’t have children?” The answer to this frequently Googled question might surprise you.

Indeed, married couples who do not have any children often think that there is no good reason to have a will in place. They mistakenly assume that a will is not necessary since there is no need to determine how any assets would be divided among children. Instead, these couples rest easy under the mistaken assumption that their property will always go to their spouse in the event of their death.

In reality, Houston couples who do not have children should still have a will in place.

Planning your estate and the management of your assets after you pass away can be an uncomfortable and overwhelming process, however, it does not need to be as complicated as you may expect. Once an effective estate plan is in order, you and your family members can rest easy knowing that your wishes will be honored and that unnecessary conflict, expense, and taxation can be avoided. Taking certain steps now in planning your estate will prevent complications down the road.

Before setting up any trusts or even drafting a will, people interested in making an estate plan can gather most of the needed documents on their own, in order to streamline the process going forward. Important documents include property deeds, insurance contact information, vehicle titles, marriage and birth certificates, and financial account information. These documents should be stored in a safe and easy-to-find place for loved ones to access later.

Most Important Estate Planning Documents

Probate is the process by which the courts oversee the distribution of people’s assets after their death. For loved ones, probate can be an extremely difficult experience involving countless administrative requirements, and it is often rife with family conflict.

There are many steps that people can take, however, to help their loved ones avoid probate court disputes. Chief among these steps is careful estate planning. But other factors can also impact the probate court experience. For example, whether someone dies with or without a will, their decision to marry—or not to marry—can carry significant consequences in probate court.

In a decision earlier this summer, a Texas court considered a probate dispute in which a woman claimed rights to her recently deceased partner’s assets based on their alleged common-law marriage. The deceased man’s children—whom the couple did not share—claimed that they were not married. Because the man had died without a will, whether the couple had a common-law marriage was critical to how his assets would be distributed.

“I leave everything I own to my grandson.”

The above statement seems to leave no room for confusion. Whomever wrote it seemingly wished to leave his belongings to his grandchild, and no one else. But one court thought differently earlier this year. The case underscores the importance of having a will professionally drafted to ensure your final wishes will be respected.

Holographic Wills Can Have Large Consequences

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