Will Category Archives — Page 3 of 14 — Houston Estate Planning and Elder Law Attorney Blog Published by Houston, Texas Estate Planning and Elder Lawyers

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.

Creating a Will in Houston: Your Step-By-Step Guide

Published on: September 23, 2023 | By Thomas W. McCulloch

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.

A Closer Look at Inheritance Laws in Texas and How They Might Affect You

Published on: September 15, 2023 | By Thomas W. McCulloch

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.

What is a “Laughing Heir”?

Published on: September 8, 2023 | By David W. Miller

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.

Texas Estate Planning: The Limitations of a Will

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

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.

Decedent’s Wife Defends Claim to Texas Property in Long-Standing Estate Dispute

Published on: March 31, 2023 | By David W. Miller

In a recent case before a court of appeals in Texas, the widow of a property owner had to defend her claim to the property that her husband left her in his will. At issue in the case was how to interpret the wills of both the decedent and the decedent’s mother; the decedent’s sons argued the documents made clear that the land belonged to them, while the widow argued that the land was clearly her property. Ultimately, the court of appeals agreed with the decedent’s widow that the property rightfully belonged to her, but the litigation took twelve years from beginning to end.

Facts of the Case

The defendant was the third wife of a man who passed away in 2010. Two years before his death, the man wrote a will that left all of his property to his wife if she survived him. Two of the man’s sons from a previous marriage, however, took issue with this provision after their father died. They claimed that 277 of the acres actually belonged to them – one large piece of property had originally been their grandmother’s, and their grandmother’s estate documents did not make clear whether the land should go to their father’s children or his wife after his death.

The sons initiated this litigation in December 2010. They argued the land qualified as something called a “life estate with a remainder interest”, which means that they were due to inherit the land after their father’s death. The man’s wife, however, argued that the land was actually something called a “fee simple interest”, which means the land should go directly to her as the designee in her husband’s will.

Celebrity Wills Exemplify the Importance of Estate Planning

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

We have long expressed the importance of estate planning for everyone, regardless of status or income. One substantial step in estate planning is having a clear will that avoids dispute or probate issues. For most people, a will turns out to be a relatively straightforward document with little contention. For celebrities who commit certain estate planning mistakes, however, a will—or lack thereof—can become a public news story and topic of gossip. Some intriguing and even hard-to-believe celebrity will stories can show the importance of having a solid estate plan—even for people whose probate drama won’t be in the news.

Larry King’s Secret Will

Television and radio personality Larry King recently passed away in 2021, and his death prompted substantial court drama over his estate. He had a secret handwritten will—also known as a holographic will, which is not a will delivered by hologram!—which was allegedly written in 2019. His family did not find the will until he passed away. The handwritten will was contentious because, at one point, it left 20% of his estate to his children and the rest to his wife, whom he was still married to but estranged from. The two were going through a divorce, but it was not finalized at the time of his death. At some point, he crossed out this 20% figure and left all 100% to his children, disinheriting his wife. This handwritten change makes it difficult to verify on what date the change was made and whether or not King actually made the change himself. King’s estranged wife and his son eventually settled confidentially to avoid the legal battle after challenges and disputes.

Why a Will and a Trust Do Not Make a Complete Estate Plan

Published on: December 27, 2022 | By David W. Miller

Horror stories abound of individuals with plenty of assets passing on without a will, throwing their loved ones into chaos and probate drama. You may have heard of these stories and made sure to establish a secure will. You may have even gone a step further and placed some assets into a trust for your heirs so those assets can avoid probate. Unfortunately, a will and a trust do not make a complete estate plan. Here are 5 other things to consider when evaluating the completeness of your estate plan.

Regularly Update Your Documents

First, even a will and a trust won’t do what you want them to if you do not regularly evaluate and update them. Changes to your financial or personal circumstances should prompt an update. For example, a divorce, marriage, death of a spouse or beneficiary, or a loss of a job or large inheritance could all require changes to your estate plans.

Include Health Care Designations

If you have a will and a trust, you still may wish to put specific documents in place that designate your healthcare wishes in the event you become incapacitated. These documents are called advance directives. A medical power of attorney grants a person of your choosing the right to make your medical decisions for you, while a directive to physicians will outline wishes for your care in advance.

Navigating and Avoiding Will Contests in Texas

Published on: November 7, 2022 | By David W. Miller

Even the most diligent of individuals may not anticipate a contest to their will’s validity when estate planning. Planning for your own potential incompetence or fights about your intention between family members can be upsetting and may even seem far-fetched. Unfortunately, planning for the worst-case scenario can help avoid major headaches in the probate process.

Why Can a Will Be Contested?

Understanding the ways a will can be contested can help in the planning process. Common objections can be, as noted above, that the will maker (or testator) was incompetent or was suffering a delusion. This can encompass a wide variety of circumstances, including dementia and Alzheimer’s disease, stroke, drug or alcohol use, an array of mental disorders such as schizophrenia and depression, and some physical ailments that implicate capacity.

In addition, objectors can claim undue influence or other outside factors like fraud and coercion or duress or mistake. Courts will consider all relevant factors when determining if undue influence is present, including circumstantial evidence that does not directly prove the fraudulent behavior but, taken as part of the whole story, indicate a problem existed.

What Happens if a Beneficiary to a Will Dies

Published on: August 11, 2022 | By David W. Miller

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.