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

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.

What Do You Need to Include in Your Will in Texas?

Published on: June 15, 2024 | By David W. Miller

Writing a will should not be overly complicated. With the right Houston estate planning attorney helping move things along, many clients find the process to be relatively smooth. There are, however, important things to include in your will that could be detrimental to leave out. Today, we focus on a few of the provisions you should make sure to put into your Texas will. Overall, your will should be an effective tool that allows you to achieve your financial goals and that makes things as easy as possible on your loved ones after you are gone.

Step 1: Name an Estate Executor

First and foremost, you should name an executor of your estate. This person should be someone you trust who is familiar with your will and estate planning documents. The executor will be responsible for carrying out the will once you are gone; therefore, choose your estate executor wisely. Many individuals choose an adult child, a sibling, or a trusted friend as their executor. When in doubt, speak with your estate planning attorney about who might be the right executor for your estate plan.

Step 2: Provide for Your Assets

The parts of your will that leave assets to beneficiaries should be as specific as possible. This section of the will should also be thorough; every significant asset you own should be included. Writing your will is also an appropriate time to think through any individual items you might want to give to your loved ones. For example, do you have valuable artwork or sentimental heirlooms? If so, your will might be a good way to name heirs to inherit these items.

What Happens if You Leave Items Out of a Texas Will?

Published on: June 7, 2024 | By Thomas W. McCulloch

As a general rule, it is best to be as thorough as possible when drafting your estate plan. Your plan should include any significant assets you own, and it should be as specific as possible. There are times, however, when decedents unintentionally leave items out of their wills. Today, we cover what might happen when your loved ones discover you have left something important out of your will in the state of Texas.

The Residuary Clause

If you leave items out of your will, your assets can still be well protected if your will includes a residuary clause. The residuary clause is a “catch all” provision at the end of the will that covers any additional property or assets that your will did not specifically name. Your clause could, for example, state that any property not mentioned in the will should go to your children, to your spouse, to your parents, or to a loved one. The clause should intentionally be phrased to encompass a broad range of assets, i.e. all of the assets included in your estate, except those mentioned in the will.

Rules of Intestacy

Without this residuary clause, the remainder of your estate will be subject to intestacy laws in Texas. Intestacy laws are the rules of the state, and they provide a specific order of inheritance for your assets. The probate court is responsible for figuring out which parts of your will are “up for grabs” and are therefore subject to intestacy. Through intestacy, your assets could end up with a relative that you did not intend to benefit from inheritance.

Three of the Most Common Mistakes People Make When Creating DIY Wills

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

In Texas, “DIY wills” are not uncommon. A DIY will is a will drafted and finalized entirely by the person planning for his or her death. At our firm, we often say that DIY wills work until they don’t work. While they can end up being a fine option for those wanting to cut costs of hiring an attorney, they also carry inherent risks that can end up causing headaches and excessive fees for loved ones down the road. Today, we review some common mistakes that we see individuals make when they do decide to create a DIY will.

Mistake #1: Planning Only for Death

A common misconception is that wills and estate plans should only include provisions that instruct your loved ones on how to distribute your assets after you die. It is also important, though, to address what happens while you are still alive. For example, do you have a provision about power of attorney? Do your loved ones know how to handle a situation in which you might need to be intubated or resuscitated? Have you adequately addressed how you want to spend the final years of your life (i.e. in a nursing home or long-term care facility), and do you have the funds accessible to do so? These are all important considerations to include when drafting a DIY will.

Mistake #2: Failing to Update the Will

Circumstances change, and if you experience a life change, you will need to update your will accordingly. Wills are therefore not “one and done” documents; instead, if you purchase property, get married or divorced, have a child or grandchild, or acquire significant debt, you should add provisions about these events in the will you have drafted.

The Problem with DIY Wills

Published on: February 15, 2024 | By David W. Miller

As a team of Texas estate planning attorneys, we often face similar questions from the clients and prospective clients we meet. One such question that many clients ask is: what’s the problem with a DIY will? Our short answer, which we will delve into more through this blog, is that a “do it yourself” will only works until it doesn’t work. While it can end up being legally valid, there are often complications that arise, and it’s often not worth the risk to you and to your loved ones down the road.

As online legal services become more and more popular, many individuals become increasingly interested in getting an online will. These wills do not require speaking to an estate planning attorney, but instead allow you to fill out online forms and quickly get a will that might work for you. There are three main issues that we see with these wills, and we will address each issue below.

1. Is the Will Valid?

In Texas, there are several requirements that a will must meet in order to be valid. It must, for example, be executed properly, self-proving, and written down. It must make sense and it must be able to survive legal scrutiny during probate. While an online will might meet these requirements, odds are there might be some difficulties that the will does not take into consideration.

What Happens if Someone Dies with Two (or More) Wills in Texas?

Published on: January 19, 2024 | By McCulloch & Miller, PLLC

In our blog posts in the past, we have reviewed the process of creating, probating, and enforcing a will. In many cases, this process is straightforward, but there are times when complicated factors sneak in. For example: what happens if a person dies with two wills? Which will serve as the controlling document? And how do you navigate this issue if you are going through the probate process?

Who Decides Which Will is the Valid Will?

In short, the probate judge is the person who will determine which will is valid when a decedent leaves behind more than one will. Sometimes, the most important factor in the judge’s decision will be the timing of the will – that is, the will that was created most recently will be the controlling will.

What is a Pour-Over Will in Texas?

Published on: December 19, 2023 | By David W. Miller

As we have discussed on our blog in the past, there are plenty of tools available to Texans working on finding an estate planning strategy that works for them. Different kinds of trusts, wills, and gifts allow decedents to make sure their assets are protected in a way that benefits them and their loved ones. Today, we discuss the pour-over will as one possible tool to use in your estate planning process.

Pour-Over Will, Defined

In Texas, a pour-over will is a type of estate planning document that specifically stipulates that any assets not included in a decedent’s trust should be automatically transferred to the trust when he or she dies. Essentially, if a decedent has elected to organize his or her assets in the form of a trust, and if some assets slip through the cracks during the planning process, the pour-over will ensure that these assets will go directly into the individual’s trust upon death.

Benefits of the Pour-Over Will

A pour-over will represents a clear way to make sure all of your assets are covered in your estate plans. The pour-over will can also give you peace of mind, knowing that even if you fail to include any assets in your trust, you and your heirs are covered. Particularly if and when you have a complicated estate, this peace of mind can be invaluable.