Houston Estate Planning and Elder Law Attorney Blog

Common Misconceptions About Texas Trusts

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

For many of our clients and potential clients, trusts are a somewhat foreign concept and are thought of as inaccessible tools only for the uber-wealthy. Fortunately, this is a misconception, and individuals with all different kinds of estates, assets, and debts are able to benefit from establishing a trust. In today’s blog, we take the time to walk you through several key misconceptions we see about Texas trusts. Here are several myths and realities that we think every Texan should know:

Myth: Only wealthy individuals should consider setting up a trust.

Reality: Trusts can benefit those with large estates, small estates, and everything in between. One possible trust purpose, for example, is protecting assets from creditors if you think you might have debts to pay. By putting money into a trust, you can insulate it from the outside world and make sure it is only used for your desired purposes.

Myth: Trusts cost too much money to maintain – they just aren’t worth the hassle and money.

Reality: While some individuals do invest considerable time and money into creating and maintaining their trusts, there are ways to go about the process that actually saves you money in the long term. For example, assets in a trust can avoid the probate process, which saves your estate considerable time and money after your death. Additionally, you can appoint a trustee that is a family member – if your family member does not want payment for being the designated trustee, you’ve avoided a major expense commonly associated with trusts.

Five Things You Didn’t Know You Could Include in a Houston Estate Plan

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

Five Things You Didn’t Know You Could Include in a Houston Estate Plan

What do you think of when you hear the words “estate plan”? For most people, estate planning brings to mind wills, trusts, and perhaps the probate process. There are, however, many other tools available to you in Houston, Texas, when you create your estate plan. Here, we outline five of them that you should consider discussing with an estate planning attorney.

1. A Pet Trust

In the age of COVID-19, many of our clients brought pets into their homes and into their families. Through a pet trust, you can set aside money that will specifically go towards caring for your pet after your passing.

2. An Ethical Will

If you have loved ones that depend on you for advice and guidance, you can consider writing an ethical will. This document leaves words of wisdom for those you’ve left behind, and while not legally binding, it can be a treasure that these beneficiaries keep forever.

3. Funeral Preferences

If you have preferences about the kind of funeral you would like to have, you can include this in your estate planning documents. You can list songs to sing, funeral location, ideas for readings, and other personal touches you want to make sure your loved ones include in your funeral.

Should Young Families Worry About Estate Planning?

Published on: June 22, 2023 | By McCulloch & Miller, PLLC

One common mistake we see in the greater Houston community is that many individuals assume estate planning is only for the elderly. This can, unfortunately, leave many families without a plan when their loved one dies, and it can leave others without the ability to take advantage of important benefits they could receive if they had completed their estate plan earlier. Ultimately, while the decision to begin an estate plan is an incredibly personal one, it is also one that we recommend starting as early as possible for reasons we will describe below.

Benefits of Estate Planning for Young People

First of all, the most obvious reason to begin estate planning as a young adult is that no one can predict the future. While we all hope to have long and healthy lives, there are factors outside of everyone’s control that can bring families into unexpected and stressful scenarios. It is thus always better to have a solid will or trust in place that your family can rely on if you were to unexpectedly pass.

Secondly, if you begin estate planning on the early side, you can receive benefits that those without a plan simply do not have access to. For example, by putting your assets into a trust, you can shield your money and property from creditors if there is ever a judgment against you. You can also shield your assets from public benefits so that you can potentially receive government help even if you think you might not qualify.

The Importance of a Houston Medicaid Planning Attorney

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

By definition, Medicaid is a government benefit that is available to individuals with lower incomes that need to pay for long-term care. It was created in 1965 and provides coverage to millions of Americans, including pregnant women and older people who need health insurance. Despite its widespread availability, it can sometimes be difficult to access Medicaid, and Houston Medicaid planning attorneys can be incredibly helpful in making sure you receive the benefits you need when times are tough.

When You Might Consider Hiring a Medicaid Planning Attorney

If you or a loved one is considering long-term care, you might want to contact an attorney that can help you think through what benefits are available to you. Additionally, if you are currently undergoing a financial change in circumstances, it could be in your best interest to talk to an attorney to see if you qualify for Medicaid.

Working through a serious illness or planning for retirement might also be reasons to talk to a Medicaid attorney. This can be especially helpful when you feel as if your medical issues require enough attention that it is difficult to focus on taking the time to apply for Medicaid benefits on top of everything else you have going on.

The Steps to Probating a Will in Texas

Published on: June 20, 2023 | By McCulloch & Miller, PLLC

The Texas probate process is not one to be taken lightly; every procedural step must be done correctly in order to make sure nothing falls through the cracks, and no stone is left unturned. While the process can be lengthy, we at McCulloch & Miller are experts in navigating the probate courts and are pleased to offer our clients everything they need to make sure the process goes as smoothly as possible.

When an individual dies in Texas, that person’s assets and debts get distributed to his or her loved ones, typically in accordance with his or her will or other estate documents. Before this can happen, however, the probate court has to review the person’s will, notify other possible beneficiaries, and decide that the will meets the necessary requirements for the assets to be distributed.

If your loved one has recently passed away and you are looking to begin the probate process, the first thing you need to do is acquire a death certificate on behalf of your loved one. Filing the death certificate with the probate court allows the court to be sure that the individual has died and to make that certificate becomes part of the official court record.

Avoiding Probate Litigation in Texas

Published on: June 20, 2023 | By McCulloch & Miller, PLLC

In the past, our blog has covered the complexities of the probate process. Just as we help our clients focus on getting through probate litigation as efficiently as possible, we also help our clients think about how to avoid the process altogether. Many of our clients, in fact, prefer to find a way to transfer their assets directly to their loved ones upon their death instead of drawing out the process through the probate courts. With the right attorney on retainer, you can learn how to avoid probate and make things as easy as possible for your beneficiaries.

There are several key strategies to think about when deciding whether avoiding probate might be right for you:

Joint ownership: if you own property in Texas, consider co-owning the property with an individual that you would like to inherit the land after your death. By structuring the co-ownership correctly, you can arrange for the property to be directly passed to the second individual when you are gone.

How an Irrevocable Trust Can Be Incorporated into a Houston Estate Plan

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

In the past, on our blog, we have gone over the possible benefit of establishing a trust when you are engaging in the estate planning process. Forming a trust can be complicated, and there are several different kinds of trusts that fit different sets of needs, depending on the nature and size of an individual’s estate. In particular, an irrevocable trust is a tool that might be right for you as you are thinking about how to organize your estate.
An irrevocable trust is a specific kind of trust that allows the trust’s creator to designate assets to a beneficiary – once transferred, the trust cannot be altered. The trust’s creator automatically loses control over the assets once the beneficiary receives them.

Advantages and Disadvantages: What You Need to Know

An obvious disadvantage to the irrevocable trust is that as soon as the transfer happens, you (the grantor) lose control over the trust property. The irrevocable trust can also be subject to higher tax rates than other kinds of trusts.
On the other hand, however, any assets that are part of an irrevocable trust do not contribute to the value of a person’s estate, which is what often determines how much an individual pays in taxes outside of the trust. In addition, property in an irrevocable trust avoids probate, which can be extremely beneficial for a person’s loved ones after that person is gone.

Irrevocable trusts can also allow individuals to continue accessing government benefits like Medicare and Supplemental Security Income. The government will generally refrain from counting money in an irrevocable trust as part of someone’s total net worth when deciding whether that person qualifies for important benefits, which allows those individuals to avoid being exempt from receiving the money they might need.

Choosing the Right Trustee to Manage Your Trust

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

Choosing the Right Trustee to Manage Your Trust

Organizing your assets in the form of a legal trust can be a valid and helpful tool in estate planning. If you are establishing a trust, you are likely trying to decide who to appoint as your trustee, which can often be a tough decision. A trustee, by definition, is an individual with the power to administer the trust’s property in accordance with the desires of the trust’s owner. In thinking through who to choose as your trustee, there are several main considerations you should keep in mind.

Trustworthiness

The most important quality of a trustee is trustworthiness. When you establish a trust, you articulate your goals, priorities, and desires for how the trust property will be administered. The trustee is the person that ensures this process goes smoothly and is in accordance with the owner’s goals. If you do not trust the person you appoint, there is always a risk that he or she will not work with your best interests in mind. Appointing someone trustworthy can help ensure that the entire process goes as you plan when you establish the trust.

If you appoint a trustee that is also a close family member or friend, consider possible implications if a conflict arises out of issues around the trust. While trustworthiness can be inherent in close personal relationships, sometimes hiring a third party can be helpful to make sure things run smoothly without additional interpersonal conflicts.

Texas Probate FAQs

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

At McCulloch & Miller, we have 35 years of experience in Texas probate law, which gives us a unique perspective on estate planning and on the probate process. Over the years, our clients have come to us with their questions, big and small, because they trust that we will deliver the answers and results they need. Here are some of our most frequently asked questions in the field of probate:

What is probate?

The probate process is when a court receives, reviews, and accepts a decedent’s will, then distributes the decedent’s assets to his or her beneficiaries.

Is probate required in Texas?

The short answer is yes; probate is required under certain circumstances. Under the Texas Estates Code, a will is not sufficient to transfer title to a beneficiary without having gone through the probate process. However, as we have discussed extensively on our blog, there are ways to avoid probate and minimize the time, cost, and toll that the probate process can take on you and your family.

How long does probate take?

Probate can take anywhere from a few months to a couple of years. The timing depends on a variety of factors, including the size of the estate, the presence or absence of disputes about who gets which property, and the backlog of the probate court.

What Assets Must Go Through Probate in Texas?

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

The probate process involves many logistical hurdles that often require time and money, and it can be frustrating for those individuals a decedent leaves behind. It is important to recognize, however, that not all assets must go through probate – in fact, there are some assets that are automatically exempt from the process altogether. At McCulloch & Miller, we specialize in separating these two kinds of assets so that families do not have to unnecessarily go through a process that will drain their resources during an already difficult time.

Probate Assets

Put simply, probate assets are those that are governed by the terms of a will. All real property and assets are subject to probate unless they fall under a category that allows them to be exempt from the process. So, for example, if a decedent had a home, a piece of land, or money kept in a non-exempt bank account, those assets will have to go through probate. The probate court learns of the individual’s death, makes sure all potential beneficiaries have received notice of the death, then divides the assets accordingly. This process can take anywhere from a couple of months to a couple of years.

Non-Probate Assets

The following assets avoid probate automatically, just by the nature of the way they are organized:

Trust assets: in the past, we have reviewed different kinds of trusts on our blog, and exempting assets from probate is another benefit to putting money or property into a trust.
Property owned in joint tenancy with a right of survivorship: when a piece of property is owned jointly with a right of survivorship, it means that multiple individuals own the property together and that when one person dies, the others automatically own the property. This kind of property, therefore, avoids any kind of probate litigation.
Insurance policies: life insurance policies, for example, allow a decedent to pass proceeds to a beneficiary as soon as that person dies.
Transfer-on-death accounts: certain kinds of bank accounts can be designated to transfer to another person the moment the account owner dies. These kinds of accounts, however, have to be designated as “transfer-on-death” before the owner dies.