Houston Estate Planning and Elder Law Attorney Blog

How a Lady Bird Deed Can Help Texas Homeowners Avoid Probate

Published on: March 30, 2025 | By Thomas W. McCulloch

How a Lady Bird Deed Can Help Texas Homeowners Avoid Probate

One common goal in the estate planning process is crafting a plan that allows your beneficiaries to avoid probate. Probate can often be a long and drawn-out process, and many of our clients use various estate planning tools to avoid probate court altogether. One such tool, which we discuss on today’s blog, is the lady bird deed.

What Is the Lady Bird Deed?

The lady bird deed is a kind of deed that allows a homeowner to directly pass his property to a beneficiary upon his death. The name “lady bird deed” came from former president Lyndon Johnson’s wife, Lady Bird Johnson. President Johnson transferred his property directly to his wife upon his death, and the now common estate planning strategy ended up bearing her name.

With a lady bird deed, the homeowner formally names the beneficiary that will inherit the property. At the same time, though, as long as he is alive, the homeowner retains full control of the property. He can mortgage the property, sell it, lease it, or reside in it according to his own wishes. He is not required to consult the beneficiary for any major or minor decisions. Then, as soon as he dies, the property goes straight to the homeowner’s beneficiary without any probate court’s involvement.

How Medicaid Estate Recovery Affects Your Assets and How to Plan Ahead

Published on: March 24, 2025 | By Thomas W. McCulloch

Medicaid estate recovery is a scary process, and it can affect families across the country during already difficult times. How can you plan ahead and help guard against Medicaid estate recovery? This blog serves as a starting point, but remember that each person’s circumstances are different, and each person might benefit from a slightly different strategy when thinking through their own opportunities moving forward.

What is Medicaid Estate Recovery?

Medicaid estate recovery is the process through which the government seizes a decedent’s assets after he or she passes away. Typically, the government will initiate this process when the decedent benefited from Medicaid and when that person’s estate has assets that the government can use to recoup the money spent on his or her healthcare.

The government can legally seek reimbursement for any costs that the decedent used for a nursing home or long-term care facility, home services, prescriptions, and/or hospital services. The government is only allowed to seize the decedent’s assets that are part of their probate estate – so if you have an asset that is set up to bypass probate entirely, it will not be subject to the recovery process. Assets that are part of probate and would be subject to recovery can include (but are not limited to) a home, cash, and personal belongings.

Using Payable-on-Death (POD) and Transfer-on-Death (TOD) Designations to Simplify Estate Planning

Published on: March 21, 2025 | By Thomas W. McCulloch

Using Payable-on-Death (POD) and Transfer-on-Death (TOD) Designations to Simplify Estate Planning

At McCulloch & Miller, we believe that every client’s estate plan should make things as easy as possible both for our client and for their loved ones. One tool that we often use to simplify estate planning is the payable-on-death designation or the transfer-on-death designation. These mechanisms are known for helping decedents’ beneficiaries access their loved ones’ assets quickly, efficiently, and privately.

Payable-on-Death v. Transfer-on-Death

Both the POD and the TOD are ways of titling assets, and they indicate that the asset should be transferred to the named beneficiary immediately upon the asset owner’s death. What is the difference between the two types of accounts? POD designations typically apply to bank accounts, and TOD designations typically apply to investment accounts. They both share the commonality that when the owner dies, the accounts go directly to the owner’s named beneficiary, bypassing probate. While the named beneficiary may have to provide a copy of the decedent’s death certificate, there is very little work that must be done to access the account, especially relative to the time-intensive probate process.

Key Benefits of the POD and TOD

The major benefit of these designations is that they allow the beneficiary to bypass probate altogether. This in turn saves time and money, and it allows the transfer to happen without anything going into the court’s public record. It also simplifies the process for everyone involved. As soon as the account owner names the beneficiary, he or she can trust that the assets will get into that person’s hands without that person having to face any major hurdles down the line.

If you think one of these kinds of accounts might be right for you, speak with a Houston estate planning attorney that you can trust. Not all assets can be titled using a POD or TOD, so you will have to strategize with your attorney in the context of your entire estate plan. With the right legal team by your side, you can make sure your plan fits your needs and goals so that you can protect your loved ones long after you are gone.

Can a Will Be Too Old? When and Why You Should Update Your Estate Plan

Published on: March 17, 2025 | By David W. Miller

Can a Will Be Too Old? When and Why You Should Update Your Estate Plan

If you have taken the first step and created your will with the help of a Houston estate planning attorney, know that you are making important strides toward protecting your loved ones long after you are gone. Even after you write your will or estate plan, however, it is still important to update that will as time goes on. Today’s blog post answers the question of when your will is too old and why you should consider updating your estate plan.

Updating Your Estate Plan Every Three to Five Years

As a general rule, you should update your estate plan every three to five years. If your will is over five years old, it might be outdated. As the legal landscape changes, so should your estate plan, and this “three to five years” rule can help you make sure your estate plan remains legally and procedurally above board. It can also help you ensure your will always reflects your current priorities and desires.

Updating Your Estate Plan After Major Life Events

Additionally, you should update your will after every major life event. These life events could include a marriage, a divorce or separation, the birth of a child, the death of a beneficiary, or the purchase of a business. A major life event could also mean coming into a significant amount of money, property, or other assets. On the flip side, it could mean suddenly owing a significant debt. Other events to consider could be the imposition of alimony payments, child support payments, or any court-ordered fees.

Charitable Giving Through Estate Planning

Published on: March 16, 2025 | By Thomas W. McCulloch

Many of our clients have causes or organizations that matter deeply to them and that they want to financially support. There are many ways to incorporate charitable giving into your estate plan, and the tool you end up choosing to structure your charitable giving will depend on your own goals and finances.

Option 1: Use Your Will or Trust

You always have the option of giving assets to a charity by naming that charity directly in your will. You can also establish a trust to give money – there is a) a charitable lead trust, which allows you to donate during your lifetime while still leaving money for your heirs, and b) a charitable remainer trust, which provides income during your lifetime but gives the leftover assets to a charity at the end of the trust’s term.

Option 2: Leverage Your Retirement Account

Certain retirement accounts are eligible for charitable giving, meaning you can leave the retirement assets to a nonprofit when you die. By gifting the money in your retirement account, you both avoid a major tax penalty in your estate and allow the receiving charity to avoid paying income taxes on your gift.

The Role of Affidavits of Heirship in Texas: When and How They Can Be Used

Published on: March 13, 2025 | By David W. Miller

An affidavit of heirship is a relatively simple estate planning tool that can have a major impact on certain beneficiaries. On today’s blog, we review the basics around affidavits of heirship, so that you can familiarize yourself with when and how they can be used for your advantage. If you or your loved ones have specific questions about these affidavits, contact a Houston estate planning attorney you can trust.

What is an Affidavit of Heirship?

An affidavit of heirship is a legal document that plainly states the names of a decedent’s heirs. Any individual declaring that they are an heir must swear that they bear a relation to the decedent. At least two people who are not involved in the decedent’s estate (but who did know the decedent) must sign the affidavit, which helps boost its reliability. The affidavit requires certain facts regarding the decedent’s information, each heir’s information, and the property to be distributed. When filling out an affidavit of heirship, it is important to make sure these details are accurate in order to ensure a smooth transfer of property from one party to the next.

Why Use an Affidavit of Heirship?

Affidavits of heirship come most in handy when A) a person dies without a will and B) that person’s estate is relatively small. The affidavit of heirship is most commonly used to transfer real estate, as opposed to cash or accounts. The decedent’s heirs can file the affidavit with the court, and once the court approves the affidavit, the heirs can bypass probate entirely. This saves beneficiaries time and money, and it helps ensure efficiency as assets transfer from the decedent’s estate to the beneficiaries.

What Happens if a Beneficiary Dies Before You Do?

Published on: March 9, 2025 | By Thomas W. McCulloch

As part of your estate planning process, you choose beneficiaries to inherit different parts (or the totality) of your estate. What happens, though, if a beneficiary dies before you do? Today’s blog covers several different possible outcomes that your loved ones could expect in this scenario.

To start, if one of your known beneficiaries passes away, you should contact your estate planning attorney as soon as possible to update your will. You should generally update your estate plan every 3-5 years or after a major life event. The death of a beneficiary qualifies as one of these major life events.

If you are not able to amend your estate plan in time, though, there are several possible outcomes for your assets. The first possibility occurs when you have named both a primary beneficiary and a contingent (or secondary) beneficiary in your estate plan. In this scenario, if your primary beneficiary dies, the contingent beneficiary will stand to inherit.

Why Business Owners Need a Buy-Sell Agreement in Their Estate Plan

Published on: March 7, 2025 | By David W. Miller

woman retirement risks and estate planning

A buy-sell agreement is a legal provision of an estate plan that details how the estate owner’s business will transition to different ownership when he or she dies. Buy-sell agreements are critical for business owners’ estate plans, as they help ensure that a business can continue to thrive even if the unexpected occurs. On today’s blog, we review some of the basics of the buy-sell agreement, as well as why they are so important for estate planners to consider.

What are the Elements of a Buy-Sell Agreement?

Each buy-sell agreement can look different, and the particular elements will depend in large part on the business owner’s goals. It is common, however, for a buy-sell agreement to include a list of triggering events that put the buy-sell agreement into effect. While the owner’s death will certainly qualify as a triggering event, it’s likely that the owner’s incapacitation and/or voluntary departure will also be triggering events.

The agreement will also include information about how to value the business, the specific buy-out procedures, and restrictions on who is legally able to purchase the owner’s shares of the company. These provisions should be as thorough and detailed as possible.

Why a Flat Fee for a Probate Attorney Makes the Most Sense

Published on: February 28, 2025 | By Thomas W. McCulloch

If you are navigating the probate process, you have likely investigated the options for legal representation and probate legal services. When choosing an attorney, we recommend looking for someone with experience, positive reviews, and a client-centered approach to their practice. It is equally important, however, to make sure you find someone who is transparent about their fee structure.

Option 1: Flat Fee

A probate attorney could either charge a flat fee or a percentage of the estate’s value. Which one is better? Without a doubt, we believe the flat fee wins every time. When a probate attorney tells you that they charge a flat fee, you can know from the beginning of your work with that attorney the total cost you will end up paying. This fee does not change no matter the size of your estate or the amount of time it takes your attorney to settle the matter in probate court.

One word of caution on the flat fee is to always inquire as to what this fee does not include. For example, does the fee cover court costs? If not, what court costs will you incur? Might there be appraiser’s fees? Or are there any other possible bills you could be responsible for paying? Asking these questions up front can make sure you have full transparency about what you will owe at the end of the probate process.

Options When it Comes to Funding a Trust

Published on: February 23, 2025 | By David W. Miller

Many people assume that when it comes to funding a trust, money from a bank account is the only possible source of assets. Today’s blog post serves to dispel that misconception, because there are many different options available to individuals looking to fund their trusts. There are also important procedural steps to keep in mind if you are thinking of starting your own trust, and we will review some of those steps today. As always, with specific questions about how this blog post applies to you, contact an experienced Houston estate planning attorney for tailored legal advice.

Assets Used to Fund a Trust

Before funding your trust, it is important to write a list of all of the assets you might put into the trust. These assets can include: bank accounts, real estate, investment accounts, retirement accounts, stocks, brokerage accounts, and even personal belongings. Your accounting of your assets should be as detailed as possible so that you have a comprehensive understanding of what you could use to fund your trust.

Legal Services

Also before funding the trust, you will also need to create a trust document with the help of an attorney. The trust document should name your trustor, your trust’s purpose, the trust’s beneficiaries, and the instructions for carrying out the intended purpose. This document should be as detailed as possible and should conform with Texas laws.