Houston Estate Planning and Elder Law Attorney Blog

What if an Executor Does Not Start Probate?

Published on: January 19, 2024 | By David W. Miller

In an ideal world, probate would go smoothly in every case, and a decedent’s loved ones would always be confident that their inheritance is being handled professionally and well. In reality, however, there can be problems that come up during probate. One such problem, which is rare but severe when it does happen, is when an executor fails to initiate the probate process. On today’s blog, we cover some of the implications of this failure, as well as a few options available to those who have found themselves in this unfortunate situation.

One of the first (and perhaps most obvious) issues that arises from an executor failing to start probate is that the decedent’s assets do not transfer to his or her heirs. Through probate, a court decides that an individual’s will is valid, and the court authorizes the distribution of the decedent’s assets to his or her beneficiaries. Without this process, the assets get stuck, and the heirs are unable to receive their share of the estate.

Similarly, debts fail to get resolved if an executor does not start probate. This means that debtors can still pursue the decedent’s money and property, even going so far as to sue those with access to the decedent’s assets. A decedent’s estate will also continue to be responsible for recurring payments, such as property taxes, if probate has not begun. These costs can add up over time, taking away from the inheritance that beneficiaries will eventually receive once probate does get underway.

What Happens to Your Firearms in Texas After You Die?

Published on: January 12, 2024 | By Thomas W. McCulloch

If you or a loved one own a firearm, you have hopefully started to think through what would happen to that firearm in the event of your death. In Texas, there are several considerations to keep in mind when planning for your firearms long term, and today’s blog post is intended to serve as a first step in helping you figure out how to make your plans a reality.

Passing a Firearm Through a Will

The most logical way to pass a firearm to a loved one is to include a provision in your will or estate plan. There are several complications to keep in mind. First of all, your intended beneficiary must be legally able to own a gun. If that person is prohibited from being listed on a gun registry or has any other restriction in place regarding possible firearm ownership, your estate executor will run into significant problems trying to pass the gun to the beneficiary after your death.

The estate executor himself must also be legally able to own a gun. Sometimes, this involves having a federal firearms license. Check with your estate executor and see if there are any possible impediments to his gun ownership – if there are, you are better off addressing those now than down the road, when time is of the essence.

Can a Beneficiary Inherit a Gift if They Received it During the Testator’s Lifetime?

Published on: January 10, 2024 | By David W. Miller

Many of our clients are parents or grandparents hoping to set up their heirs for financial success in the long term. One strategy that these clients use is the lifetime gift, which allows individuals to give money while still alive instead of through their estate plans. What are the implications, though, of this lifetime gift for a person’s estate planning documents? In today’s blog, we cover the overlap between these two types of gifts.

What is the Lifetime Gift Limit?

The government permits individuals to give financial gifts of a certain amount to beneficiaries of their choosing without facing tax consequences – this means the individuals can give money away while they are still alive without having to pay the federal gift tax. In 2024, the annual federal gift tax exclusion amount is $18,000 per person and $36,000 for married couple. This kind of gift allows individuals to give money away in increments over the course of their lives, perhaps to their children or their grandchildren.

Does the Lifetime Gift Prohibit Beneficiaries from Inheriting in a Will?

If a son, daughter, or grandchild inherits over the course of the parent or grandparent’s lifetime, he or she can still inherit at the parent or grandparent’s death. Importantly, however, if the estate documents are clear that the lifetime gift was intended to replace the will, trust, or estate document’s provision for a gift, the probate court will likely rule that the beneficiary cannot receive both gifts.

Who Will Inherit Your Digital Footprint in Texas?

Published on: December 27, 2023 | By Thomas W. McCulloch

Who Will Inherit Your Digital Footprint in Texas?

In 2024, the question of a decedent’s digital footprint is more relevant than ever. A digital footprint includes (but is not limited to) a person’s emails, texts, social media accounts, credit card accounts, cell phone data, and photographs – essentially, a digital footprint includes a wide array of personal information. As more questions arise about what will happen to this footprint upon an individual’s death, we look to Texas legislation, which has provided promising signs of progress.

Revised Uniform Fiduciary Access to Digital Access Act

In 2017, Texas enacted an Act, the Revised Uniform Fiduciary Access to Digital Access Act (sometimes referred to as “RUFADAA”), that dictates how an estate’s executor is able to access a decedent’s digital assets. Essentially, as long as the executor has valid legal authority and complies with each account’s terms of service, that executor can access the digital assets in question. There are certain restrictions under the Act – for example, it generally keeps the executor from accessing the decedent’s emails, texts, and social media accounts.

Probate and Family Feuds: How to Avoid Conflict

Published on: December 27, 2023 | By David W. Miller

Estate planning in Texas can be a stressful process, no matter the circumstances surrounding it. When there is possible familial conflict, however, estate planning and probate can become even more tenuous for everyone involved. To avoid family feuds, we at McCulloch & Miller recommend a few strategies that can help steer your loved ones clear of frustrating fights and emotionally charged conversations.

Plan Ahead

The biggest piece of advice we can give you in order to keep everything (and everyone) at peace is to plan ahead. By drafting your estate plans early and by making sure everything is set in stone as soon as possible, your family can grow accustomed to the preferences you articulate in those documents. Unfortunately, the alternative is that loved ones will be caught by surprise, which rarely goes over well.

Set a Family Meeting

Once you have finalized your estate planning documents, set a meeting with your family so that everyone can understand how you have organized your assets. Make sure your loved ones feel included by asking them if they have questions or if they need any additional information. By communicating clearly throughout the process, you can make sure to do everything in your power to help your family avoid a high-stress situation down the road.

Probate and Incompetence: What Texas Residents Need to Know

Published on: December 19, 2023 | By Thomas W. McCulloch

Ideally, any individual drafting a will would be able to make decisions for him or herself. In reality, however, at times, there are competence issues, meaning that when a person is mentally incompetent or incapacitated, others might challenge that person’s will or estate plans down the line. In today’s blog, we cover the most important things you need to know about probate and incompetence, walking you through some of the steps that a Texas probate court might require in order to prove a decedent’s incompetence.

What is Incompetence?

In Texas, a person is deemed “incompetent” in the legal sense if he or she does not have sufficient mental ability to understand that he or she is making a will. If that person does not understand the will’s possible effects and/or know which people will inherit through the will, he or she might be deemed incompetent.

Courts rely on witnesses to speak about a person’s capacity, and courts generally want to hear about the person’s capacity on the day the will was written. If, for example, a decedent was mentally stable on the day of the will’s execution but mentally unstable from the next day onward, the court will only consider the day when he or she actually made pertinent decisions about the 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.

Does Probate Always Require a Lawyer in Texas?

Published on: December 14, 2023 | By McCulloch & Miller, PLLC

At McCulloch & Miller, we understand the dilemma – paying for an attorney can be difficult, but you also don’t want to go through legal battles alone. During the probate process, it can be especially frustrating to navigate all of the procedural hurdles without an attorney. But is an attorney required? Today, we talk about whether attorneys are necessary in Texas probate proceedings.

The short answer to this question is that probate sometimes requires an attorney in Texas. Specifically, most probate courts in Texas do require that an estate’s executor hire a lawyer. The executor is responsible for looking out for not only his or her own interest, but the interests of the estate’s beneficiaries as well. Because of this dual role, most courts stipulate that the executors must retain an attorney during the probate process.

The most common situation in which an attorney is not needed for probate is when the decedent’s will is probated as a muniment of title. We have discussed muniments of title previously on our blog, but for a short overview, muniment of title is essentially a shortened probate process that is available when the estate has (1) no unsecured debts and (2) only real property and cash accounts. If the estate qualifies for muniment of title, the executor can move forward without hiring a lawyer at all.

How is an Inheritance Affected by Divorce in Texas?

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

When a couple gets divorced, there are financial matters that need to be dealt with – in the absence of a settlement agreement, the family court must divide up the couple’s property in a way that is fair to both parties. Sometimes, this division can be tricky, especially if the marriage has been long and each person’s funds are comingled with the other person’s funds. Ultimately, the court focuses largely on marital v. non-marital property when making this calculus during a couple’s divorce.

Marital v. Non-Marital Property

In dividing a couple’s assets, the court looks at which property is marital, or community, property, and which property is non-marital, or individual, property. Each person’s income earned during the marriage, for example, is considered marital property. Importantly, the court will only divide up property that is marital.

Typically, an inheritance or gift is non-marital property. This means that if you have inherited money from your loved ones and you find yourself in the midst of a divorce, that gift will still likely be yours and yours alone. Of course, there are complicating factors to consider.

Can You Sell Property During Probate in Texas?

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

Clients sometimes ask us about how they can go about selling property during probate proceedings – is it even possible? What does it entail? In short, the answer is yes: you can sell property during probate. As always, however, the long answer is a bit more complicated, as it involves several important steps that are not to be missed.

If a piece of property is tied up in probate, and the descendent had a valid will, there will be an executor of the estate that would be responsible for selling the house. This executor must first get the consent of all of the will’s beneficiaries – without this consent, he or she cannot move forward with the sale.

Once the house is for sale, the executor, real estate agent, or any other interested party must keep in mind several important requirements:

The executor must a) file notice of the sale with the court and b) mail the notice to all heirs under the will.
The home cannot sell for less than 90% of the home’s appraised value. This, of course, means that the home will need to be appraised prior to the sale.
The buyer is required to put down a deposit of at least 10% if his or her offer is accepted.
The executor must provide at least 15 days for anyone (heirs, claimants, etc.) to challenge the sale.

If the sale does not abide by the terms above, the probate court can decide that the sale is invalid. If it does meet the requirements, the court will likely approve the sale through a hearing, which takes place approximately a month after the sale.