Houston Estate Planning and Elder Law Attorney Blog

An Overview of the Texas Estate Process

Published on: May 10, 2023 | By Thomas W. McCulloch

We have covered the definition of the probate process on our blog in the past, which is vital information for those developing their estate plans. Also relevant, however, is the specific procedure for probate in the state of Texas since probate works differently in each state and can have a unique set of rules and regulations. At McCulloch & Miller, we specialize in Texas law and are recognized as experts in the field of the probate process in Texas.

What is Involved in Probate in Texas?

In Texas, there are several steps that initiate the probate process once an individual has died. First, the person’s representative files a petition with the court, and beneficiaries, as well as creditors, receive notice that the probate process has begun. Representatives pay off debts and taxes, then distribute the remaining assets with the help of a probate court.

There are certain rules specific to Texas that apply to the probate process, and that might not apply in other states. For example, a decedent’s representative has four years from the date of death to file for probate. If four years come and go, and the representative has failed to file, the court will divide the decedent’s assets based on certain laws of intestacy, meaning rules that dictate which family members or loved ones receive a decedent’s assets when there is no valid will.

What is Probate and Why You Need to Know How Texas Probate Law Works

Published on: May 10, 2023 | By David W. Miller

What is Probate and Why You Need to Know How Texas Probate Law Works

Many beneficiaries to a person’s will find themselves becoming familiar with the probate process once they try to access the funds that their loved one has left behind. It can be important to understand the probate process because it is often the vehicle through which a decedent’s assets are passed on, but it can be complicated and, at times, litigious. At McCulloch & Miller, we are committed to making sure all of our clients understand the probate process so that they can know what will happen with their assets (or the assets of their loved ones) in the future.

The Definition of Probate

Probate is the process of managing and administering the property, money, stocks, or other assets in a decedent’s estate. When a person leaves behind a will and asks that their estate be passed along to their named beneficiaries, that estate often must be reviewed by a probate court before the beneficiaries can access the assets. Typically, those involved in probate are the judge, the personal representative of the decedent, and those entitled to receive the decedent’s assets.

What Does Probate Involve?

The first step in the probate process is for the court to receive a petition for probate, indicating that someone has died and that their assets need dividing. At that point, the court mails notice to all named beneficiaries to let them know that the probate process has begun.

Who Can Benefit from a Texas Special Needs Trust?

Published on: April 30, 2023 | By McCulloch & Miller, PLLC

As we have discussed previously in our blog, trusts can be powerful tools to protect and distribute assets for individuals in a variety of circumstances. One particular kind of trust is called the special needs trust, which is designed specifically for individuals with a disability. This type of trust distributes assets without eliminating its beneficiaries from public benefits, allowing them to receive the care they need while also maintaining a high quality of life even with their disability.

What Are the Kinds of Special Needs Trusts?

First, there is a “first-party trust,” which forms when a trust beneficiary receives some kind of asset, whether it be in the form of money, property, or stock. Normally, when a person’s assets rise to a certain level, that person is disqualified from public benefits that could help provide care for their disability. By using the first-party trust, however, the individual can put the funds into a trust and still receive public benefits. The downside of a first-party trust is that when the beneficiary dies, the state Medicaid agency gets whatever funds are left over at the time of death.

A second kind of special needs trust, the “third-party trust,” forms when someone wants to give a person with a disability a gift or inheritance. The funds in the third-party trust don’t actually belong to the individual with the disability – they are only being used for that person’s benefit. One important upside to the third-party trust is that the government does not end up taking the remainder of the funds when the beneficiary dies, since the funds never belonged to the beneficiary in the first place.

Estate Planning Considerations for Gun Owners

Published on: April 30, 2023 | By David W. Miller

One question we occasionally get from our clients is how to manage any guns that might be part of their estates as they plan for the future. If you own a gun, as long as it is registered and legal, there are steps you can take to make sure your beneficiaries can receive the firearm after your passing. There are, however, important complexities to keep in mind when thinking about what that process look like for your estate.

What is Involved in Passing on Guns and Firearms?

If you have any gun or firearm that you would like to pass to a loved one after your death, there are a few steps you need to take in the short-term future. First and foremost, you must think about who exactly you would like to be your gun’s beneficiary. The beneficiary must be legally entitled to gun ownership in terms of their age, criminal history, and citizenship status. It is always safest to also leave a secondary beneficiary, in case something happens where the primary beneficiary is no longer able to accept the gun.

Secondly, it is important to think about the executor of your estate, or the person responsible for distributing the estate’s assets. That person must be able to legally possess the firearm – in certain circumstances, this means having a federal firearms license. Choosing an estate executor is an important decision, and it is important that you trust your executor will have your best interests in mind.

Preparing to Meet with an Estate Planning or Probate Lawyer

Published on: April 24, 2023 | By McCulloch & Miller, PLLC

At McCulloch & Miller, many of the clients we sit down with are meeting with an estate planning attorney for the first time. If you are looking to meet with an estate planning or probate attorney to discuss your long-term needs and don’t quite know what to expect, this guide will help you anticipate your first meeting as well as the process ahead.

Importantly, the estate planning attorney will likely start by setting up an initial meeting with you to understand your goals and provide you with options for how to achieve them. Before you have this initial meeting, it can be helpful to think about what, if any, preparation you could do beforehand.

Typically, when you call an estate planning attorney and set up a meeting, the attorney will send you a basic questionnaire for you to fill out before that meeting. The more information you can fill out on this questionnaire, the better, since it will save you time in the meeting itself if your attorney is already familiar with your family and financial information.

So You’ve Been Named as an Executor or Trustee, Now What?

Published on: April 24, 2023 | By McCulloch & Miller, PLLC

Being chosen as an executor or trustee can be a big responsibility, and it is not one that you should take lightly. If someone you know has asked you to serve either as an executor or trustee, that person believes that you will fulfill your duties in a trustworthy manner, consistent with their wishes. There are important takeaways that you should note if you have found yourself in one of these positions; but, as always, the best thing you can do to fully understand your role is to speak with an experienced, dependable estate planning attorney.

An executor is someone appointed to carry out a decedent’s will. A trustee, on the other hand, is appointed when the decedent has organized their assets in the form of a trust. The trustee has ultimate control over the administration of the trust, but he or she has a duty to follow the decedent’s instructions on how exactly to administer the decedent’s property.

The first thing you should do as an executor or trustee is read the documents left by the decedent, whether those documents come in the form of a will or a trust. The decedent might have left co-executors or co-trustees, for example, or might have written specific instructions about what should happen to the assets in the short-term future. There might be time limits on when these assets need to be distributed, and it is important not to delay the initial review of the will or trust.

How the SECURE Act May Affect Your Long-Term Planning

Published on: April 16, 2023 | By McCulloch & Miller, PLLC

Part of our job as estate planning attorneys is to make sure our client population is up to date on recent acts, amendments, and changes in case law that might affect their long-term planning. Importantly, the SECURE Act (“Setting Every Community Up for Retirement Enhancement”) is important to know about, as it affects the retirement and estate plans of Americans in any stage of their own planning processes.

What is the SECURE Act?

The SECURE Act is part of a major spending bill that was passed in 2019. The Act has several significant implications for those planning for retirement, and it is important for anyone engaged in long-term planning to understand its effects.

The SECURE Act’s Implications

First and foremost, the Act pushes back the age at which retirement plan participants need to take required minimums distributions from age 70½ to age 72. This essentially means that those wanting to take distributions from their IRA can wait until April 1, after the year they turn 72, to begin these required minimum distributions. Giving this cushion allows for a bit more flexibility that can end up being greatly beneficial for those wanting to use money from their IRA.

Next, the SECURE Act makes changes to an important law that allowed decedents’ beneficiaries to receive the assets to which they were entitled over a long period of time. By taking these payments gradually over a lifetime, beneficiaries could defer taxes on the money and end up receiving twice the amount of money than what they would have received via a lump sum.

Does a Texas Power of Attorney Expire?

Published on: April 16, 2023 | By McCulloch & Miller, PLLC

One common question we receive from clients and potential clients revolves around power of attorney – does it expire? If so, when? Understanding power of attorney is crucial, especially if you have a loved one that might need help making decisions for themselves. At McCulloch & Miller, we understand that these are delicate topics, and we are here to help you and the people you care about navigate processes like this one with the utmost care.

What is Power of Attorney?

If one person has power of attorney over an individual, it means he or she can make decisions on behalf of the individual. The power of attorney can have broad powers or limited ones, depending on the circumstances and the nature of the relationship. A power of attorney might make financial decisions, medical decisions, or decisions surrounding a person’s property and estate. Importantly, the individual in any power of attorney relationship has the right to know what their power of attorney is doing and to see any paperwork the power of attorney might be using to make decisions.

How Do You Know When a Power of Attorney Expires?

Different states have different rules about how and when power of attorney might expire. In Texas, the answer to this question depends on what kind of power of attorney relationship exists. For example, a “limited power of attorney” exists only for the purpose of handling a specific issue. Once this matter is finished, the power of attorney expires. Similarly, a “medical power of attorney” gives authority only if the individual is unable to make her or his own medical decisions.

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.

The Revocable Living Trust: What You Need to Know

Published on: April 11, 2023 | By David W. Miller

Unfortunately, the law around estate planning can be complex and technical in a way that makes it difficult to sort through. Fortunately, though, the law provides for a diverse array of options for those undergoing the estate planning process. Many of our clients come to us, for example, asking us to help them create a thoughtfully written will. It is important to note that wills are not the only option for those looking to make long-term plans. Another tool, the trust, comes in the form of a revocable living trust, which can be beneficial for those looking to both use their assets now and securely transfer them after their death.

What is a Revocable Living Trust?

When done correctly, creating a trust allows individuals to forgo the probate process and pass assets directly to their beneficiaries after they die. If the trust is revocable, the individual maintains the right to suspend the trust at any time, taking back the assets that are hers or his in order to use them in the short-term future.

As we have discussed elsewhere in our blog, the probate process can be long, drawn out, and public. Creating a trust, however, allows for a secure and private transfer of assets upon the designator’s death. By forming a trust, designating a trustee, and naming beneficiaries, individuals can make sure their assets will pass on seamlessly to those they care about.