Houston Estate Planning and Elder Law Attorney Blog

When Do You Need a Letter of Testamentary?

Published on: October 17, 2023 | By David W. Miller

On our last blog, we began discussing letters of testamentary. These letters are documents produced by a probate court that allow an executor to prove that he or she has the authority to administer a decedent’s estate. To take it a step further, today we discuss when you might need a letter of testamentary, so that you can have a better understanding of the context in which these letters come into play.

The letter of testamentary is important for the executor of an estate. An estate’s executor is the person who is responsible for carrying out a deceased person’s last will and testament. Sometimes, when the executor starts to organize, disburse, or use the funds in a decedent’s estate, he or she needs the letter of testamentary to prove that he or she has the authority to withdraw money from certain accounts or use the money for certain purposes.

For example, an executor might need a letter of testamentary to access a decedent’s bank account, pay off the decedent’s debts, or distribute the decedent’s assets to his or her loved ones. There are also very practical circumstances in which a letter of testamentary could come into play – for example, the executor might need the letter when paying for funeral expenses or when making sure that the decedent’s loved ones receive proceeds from the individual’s life insurance.

What is a Letter of Testamentary in Texas?

Published on: October 13, 2023 | By Thomas W. McCulloch

The probate process can be complicated. Often, our clients come to us overwhelmed by how many steps can be involved and how many hurdles they have to jump through. One such hurdle can be a letter of testamentary, which is sometimes produced during probate proceedings. Today’s blog will cover the basics of letters of testamentary, but to make sure you properly address the procedural requirements in your own probate case, the best thing you can do for yourself is to speak with a Texas estate planning attorney who knows the ins and outs of the process.

Who Provides the Letter of Testamentary?

Oftentimes, a probate court will provide an estate executor with a letter of testamentary. This letter is a document that the executor can take to a bank, a financial institution, a creditor, or any other party that needs to release funds belonging to the decedent. Oftentimes, financial institutions will only release a decedent’s funds if the executor shows up with this official letter of testamentary, proving that the probate court has authorized the distribution of funds.

Letters of testamentary, in short, give the executor the authority that he or she needs in order to fulfill the job of the executor. If a decedent says in his will, for example, that all of the money in his bank account will go to his children, the letter of testamentary gives the executor the power to retrieve the money from the bank (so that the children can then receive the funds).

Why Hire a Texas Estate Planning Attorney?

Published on: October 13, 2023 | By David W. Miller

In Texas, attorneys are not required by the court for estate planning purposes; however, navigating the process without an attorney can end up costing more time and resources given the many steps that are involved in estate planning. If you are debating whether or not to hire an estate planning attorney for your Texas estate, there are several reasons to consider calling a trusted firm to offer you advice.

Navigating Procedural Hurdles

In Texas, a decedent’s estate plan must generally go through probate. This means that a probate court must decide that the decedent’s will or estate plan is valid before the heirs are entitled to receive the decedent’s assets. The more complex a person’s estate, the more time-intensive this process can be.

Probate court can be a difficult forum to navigate. Filing your documents at the right time, in the correct jurisdictional court, and with the right information is a complicated process. Because it is so easy to miss a step when appearing before a probate court, it is helpful to have an attorney who can ensure everything goes smoothly the first time around.

Are Family Members Less Expensive than Professional Trustees and Executors?

Published on: September 30, 2023 | By Thomas W. McCulloch

Deciding who to appoint as a trustee or executor as part of your estate plan can be a tricky business. One obvious option for a trustee is a valued family member, someone that you can count on to act in accordance with your best interest. At McCulloch & Miller, we have years of experience advising clients on how to choose the right trustee or executor for them, helping them make a decision that works well for their individualized circumstances.

What is a Trustee or Executor?

A trustee is a person that you designate to oversee your trust; this person is in charge of making sure the trust’s assets are used according to your wishes. An executor, on the other hand, is a person appointed to carry out the terms of your will or estate plan. This person will sort out your finances and assets after you are gone.

What is the Cost of Appointing a Trustee or Executor?

When deciding who to appoint as a trustee or executor, you may have many options in front of you: in particular, you might need to choose whether to appoint a family member or a professional as the person to oversee your assets.

Estate Planning for Blended Families Living in Houston

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

In today’s blog, we offer estate planning tips and strategies for blended families in Houston, with the goal of ensuring that all members of the family are considered. For many of our clients in non-traditional families, there can be important questions about how to make sure nothing goes awry upon one individual’s death. There are important strategies to keep in mind, and ultimately, speaking with an estate planning attorney is the best thing you can to in this situation to make sure your needs are covered.

What is a Blended Family?

A blended family is one that consists of a couple and their children from previous relationships. If you and your spouse have both children and stepchildren, you might have different goals for what you will leave behind for each set of children, which can be difficult to navigate if you have been accustomed to more straightforward methods of estate planning in the past.

What Should Blended Families Keep in Mind During Estate Planning?

For those who die without a will in Texas, their assets will generally go to their spouse. For those who have children from a previous marriage, however, things can look different. If a decedent in a blended family owns property with his or her spouse, part of the property will be left to the surviving spouse, and the other half will go to the children from the decedent’s prior marriage.

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.

Should I Put My Children in Charge of Everything as I Age?

Published on: September 22, 2023 | By David W. Miller

Should I Put My Children in Charge of Everything as I Age?

As parents grow older, it is natural for families to experience a shift as children begin taking on more of a caretaking role. This shift can be a delicate process, and we have many clients come to us, asking whether it is wise to put their children in charge of their finances, estate, and affairs as they age. Today, we talk through some of the intricacies of this approach, recognizing that a different strategy will likely work for every family.

Power of Attorney

One way in which many parents give their children more responsibility is by making them “power of attorney,” authorizing their children to make decisions on their behalf. In Texas, a power of attorney can only act on behalf of an individual when explicitly authorized to do so.

Financially speaking, a power of attorney can manage a person’s business dealings if the individual wants someone else to take care of these dealings for them. In contrast, a medical power of attorney only becomes effective when an individual becomes incapacitated, allowing the power of attorney to make medical decisions in the individual’s best interest. Texas also offers the option of appointing a “limited power of attorney,” which allows individuals to appoint a power of attorney for one particular action, like purchasing a vehicle or handling tax-related matters.

Why Now Is a Good Time to Start Thinking About Estate Planning

Published on: September 15, 2023 | By David W. Miller

At McCulloch & Miller, we often speak with clients who struggle to find the motivation to begin their estate planning processes. Once we make clear to these clients just how important estate planning can be in Texas, their interest grows in getting started as soon as possible. With so much on the line, we try to emphasize to our clients that estate planning does not have to be difficult but that it is still an extremely important process that deserves their full attention.

What Is Estate Planning?

Importantly, estate planning is not only the process of creating a will. Estate planning allows you to protect your property and ensure that your assets are distributed exactly as you want them to be distributed in the event of your death. Estate planning can include drafting wills, establishing trusts, naming beneficiaries, and designating a power of attorney in case of incapacitation. Estate planning can also help you figure out how to save money on taxes, which benefits you in the present as well as your loved ones in the future.

What Happens Without an Estate Plan?

In Texas, when a person dies, his or her loved ones must go through the probate process so that a court can determine how to divide up his or her assets. Without estate planning documents on hand, this process can be costly, drawn out, and draining. The lack of a solid estate plan can also lead to high levels of tension among family members while the court tries to determine how to divide the decedent’s money and property.

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.

The importance of Understanding All Tax Implications When Estate Planning

Published on: September 14, 2023 | By Thomas W. McCulloch

One of the most frustrating aspects of estate planning can be having to pay out a percentage of assets to the government or to others who have a claim on your estate. In Texas, tax implications depend on the estate strategy that you choose. Today, we review some of the tax implications of estate planning with an eye toward minimizing tax liability.

What is an Estate Tax?

Texas is one of 38 states that does not require residents to pay an estate tax. In states without this benefit, an individual’s estate will have to pay a certain percentage of their assets to the state government upon that person’s death. This is good news: by living in Texas, you already avoid a tax that residents of some other states will have to pay.

Texans do, however, still pay a federal estate tax. This kind of tax can be generally broken up into three different taxes: the estate tax, the gift tax, and the generation-skipping transfer tax.