Articles Posted in Will

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.

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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.

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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.

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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.

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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.

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.

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Do you want to create your will? Are you not quite sure where to begin? In Texas, writing a will and making sure it aligns with the legal requirements can be a tricky process. There are several procedural hurdles to overcome, and when your loved ones’ well-being is on the line, you want to make sure everything is done correctly. On today’s blog, we offer a step-by-step guide on how to create a will in Houston to ensure your assets are distributed according to your wishes.

Step 1: Start Early!

The best piece of advice we can offer in creating a will is to start drafting early. Life is full of the unexpected, and it is never too early to make sure your loved ones are protected. Even if you do not feel as if you have significant assets to leave behind, writing a will can make sure that your loved ones do not have to deal extensively with the probate courts after you are gone, which will save them time, money, and emotional stress.

Step 2: Consult with an Attorney

Some courts might accept a will that is drafted and signed without the involvement of an attorney. To make sure everything is above board, though, we strongly recommend speaking with an attorney who can help you make sure there are no issues with the probate courts after you are gone.

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As many of our clients can tell you, estate planning in Texas is different than estate planning in any other state. Every state has its own laws and way of doing things, and it is important to understand your state’s policies as you undergo your own estate planning process. As experts in estate planning at McCulloch & Miller, we understand the system in Texas and its implications for our clients. Below, we review several state-specific estate-planning laws that could be helpful for you.

The Intestate Succession Process

In Texas, those who die without a will are generally subject to the intestate succession process. Essentially, this means that the court will divvy the individual’s money and property to the decedent’s closest family members. In our state, this means that the spouse inherits first. If there is no spouse, priority goes to the children. If there are no children, priority goes to the parents, then to the siblings. If none of these relatives have survived the decedent, the assets will go to the next of kin, whoever that might be.

Community Property

If you purchased property with your spouse during your marriage, that property is considered “community property.” It will therefore go to your spouse upon your death. Property that you inherited (as opposed to having been acquired with your spouse) is often an exception to this rule.

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Finding out you are the beneficiary in a decedent’s will can be a small dose of good news in the midst of experiencing grief and in the process of adjusting to life without your loved one. Sometimes, though, a decedent’s beneficiaries are not negatively affected by the death of the person that leaves assets to their name. In this case, the law calls this particular kind of beneficiary a “laughing heir.”

A laughing heir is a beneficiary who was distantly related to the decedent and likely has very little reason to be saddened by that person’s death. If a decedent leaves behind no spouse, children, siblings, or parents, for example, he or she might have chosen to give their assets to a relative that he or she did not know very well.

If the decedent died without a will or estate plan, the probate court might divide his or her assets using the law of intestacy – this essentially means that the decedent’s closest living relatives will inherit his or her assets. When the closest living relatives are distant relatives, those relatives might be considered laughing heirs.

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The will is the most well-known tool in estate planning, and it is often clients’ first choice for how to make sure their assets are transferred to loved ones after their death. The will can be useful in that it allows individuals to provide detailed instructions for their beneficiaries, and clients are generally grateful to have the opportunity to leave a thoughtful, specific document that coordinates the distribution of their assets for the ones they leave behind.

It is imperative to recognize, however, that wills do have disadvantages, and it is important to explore the limitations of wills alongside their benefits. Of note, anyone that wants to contest a will has exactly two years to do so, or else the will becomes unalterable. When a person dies, their will is submitted to probate, which means the court takes charge of the process of distributing their assets according to their wishes. From the day the will is submitted to probate, any potential challenger to a will has exactly two years to file with the court and contest that will’s validity.

The second obvious disadvantage to a will is that it requires the decedent’s property to go through the probate process. At times, this process can be long, drawn out, and contentious. Courts are charged with interpreting the terms of each person’s will, and there is no guarantee that the court will distribute assets exactly as the decedent intended if there is even one ambiguous phrase in the will.

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