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Probate is the legal process through which a court reviews a decedent’s will or estate planning documents and accepts the documents as valid and enforceable. In Texas, there are certain assets that must go through probate. There are, however, ways around probate, which many clients are interested in, given the cost and time that probate requires. On today’s blog, we review which assets must go through probate in Texas, but as always, it is best to speak with a Houston estate planning attorney if you have more detailed questions about the process.

Put simply, your estate goes through probate in Texas. The “estate” includes: financial accounts in your name, real estate, notes (i.e. money that someone owes you), personal property, LLC interest (companies you own or operate), lawsuits (where you might have a chance of a recovery), and inheritance. Assets in your estate will be subject to probate, no matter how bi or small those assets are.

Many individuals are interested in avoiding probate, and there are several strategies we recommend with this goal in mind. You can, for example, organize your assets in a way that excludes them from probate. One such method of organization is forming a trust – the money in the trust will be protected from probate. You could also open a transfer-on-death account. This is essentially a bank account that tells the bank to automatically transfer money to a beneficiary upon your death, therefore avoiding the probate courts.

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Many clients, especially after they have had an especially profitable year, ask our team about how to best structure their charitable giving. Giving money away is a noble goal, and part of our job as estate planning attorneys is to help you figure out how to have the greatest impact while still making sure your financial foundation is solid. One tool we often suggest for our clients’ charitable giving is called the charitable remainder trust. Today’s blog goes into some details about this kind of trust, so that you might be able to discern whether it could be right for you.

A charitable remainder trust is a tool that allows you to both contribute to a worthy cause and be eligible for important tax benefits. Once you deposit money into the charitable remainder trust, you automatically offset or minimize your current tax liabilities. As time goes on, you stay in some control of the money deposited in the trust, and you become eligible to receive a potential income stream from the trust itself. Then, when you pass, the remainder of the trust is given to the charity or charities of your choosing.

Because you get the trust’s tax deduction today, but you still have access to the income from the trust over your lifetime, the charitable remainder trust can truly be the best of both worlds. Importantly, a contribution to a charitable remainder trust constitutes an irrevocable transfer of cash, so it is essential to choose your contribution wisely.

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Take it from us: thinking about death is very rarely how anyone wants to spend their time. As estate planning attorneys, however, we have learned that it is a necessary evil. In our experience, the clients whose families are best protected long-term are those who have taken the time and energy to carefully think through what will happen in the event of their death. On today’s blog, we consider a topic that is not glamorous but that is still incredibly important: planning for the day after your death.

The day after your death, your loved ones will be grief-stricken and perhaps unsure of where to turn. At McCulloch & Miller, we believe that we all have an obligation to our loved ones to make sure they have as little to worry about as possible when that day comes. When your loved ones find themselves in a funeral home, a hospital, or a hospice center, they will want to deal with as few logistics as possible.

Given that reality, there is a checklist we recommend making now, as soon as possible, that your loved ones can access in the event of your death. This checklist should include:

As a team of Texas estate planning attorneys, we often face similar questions from the clients and prospective clients we meet. One such question that many clients ask is: what’s the problem with a DIY will? Our short answer, which we will delve into more through this blog, is that a “do it yourself” will only works until it doesn’t work. While it can end up being legally valid, there are often complications that arise, and it’s often not worth the risk to you and to your loved ones down the road.

As online legal services become more and more popular, many individuals become increasingly interested in getting an online will. These wills do not require speaking to an estate planning attorney, but instead allow you to fill out online forms and quickly get a will that might work for you. There are three main issues that we see with these wills, and we will address each issue below.

1. Is the Will Valid?

In Texas, there are several requirements that a will must meet in order to be valid. It must, for example, be executed properly, self-proving, and written down. It must make sense and it must be able to survive legal scrutiny during probate. While an online will might meet these requirements, odds are there might be some difficulties that the will does not take into consideration.

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At McCulloch & Miller, we hear from our clients time and time again that the estate planning process feels daunting – especially when it is just beginning. Luckily, with the right estate planning attorneys in place, you can walk into your first meeting with the confidence that your case is in the best of hands. Today, we review some of the topics you might expect to cover in your initial estate planning consultation, with the hopes that you might feel more prepared as you get ready for your own consultation.

Central Issues

There are three main topics that an estate planning attorney might want to discuss with you during your estate planning consultation: your family situation, your financial situation, and your goals and concerns as you begin your estate planning journey.

Your family situation is important because many times, clients want to leave their assets to a spouse, children, or grandchildren. The more your estate planning attorney can familiarize him or herself with your possible heirs, the more he or she can help you figure out a plan that works for everyone.

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Going into a legal consultation regarding your probate affairs, you may have questions about what might happen during the meeting. On today’s blog, we expand on our YouTube series that discusses some of the ins and outs of probate by covering what you can expect during a probate consultation with an attorney from McCulloch & Miller.

Central Issues

There are a few central concerns that your probate attorney will want to address to make sure that the two of you are on the same wavelength. First and foremost, your attorney will want to know if there is a will or other estate planning document in play. If you are beginning the probate process for a loved one, the path you take will look completely different if there is a will or if there is no will. Even if there is a will, the attorney will want to have a look – it’s possible, for example, that the will might be invalid or that there might be inconsistencies that the attorney wants to raise on the front end of the proceedings.

In Texas, power of attorney refers to a legal document that allows one individual to act on behalf of another individual. Power of attorney can look different depending on the specific circumstances, and the decision of whether to grant power of attorney is an inherently personal one. Today, we review some of the options for granting power of attorney, including whether you can limit the authority of the person to whom you grant this power.

The short answer to this question is that yes, you can limit the power granted by power of attorney. You can accomplish this goal in several ways. To start, you can grant power of attorney only for a specific period of time – for example, you can give someone authority to act on your behalf only until a specific task has been accomplished (for example, for the period of time in which you are filing your taxes or undergoing a surgery). You can also grant power of attorney only if you become incapacitated, only upon your death, or only until you decide to revoke the power of attorney.

You can also grant an individual “limited” power of attorney, meaning you give a person authority only within a very specific realm of your life. You might, for example, grant someone power to assign the legal title to a vehicle you own. You might also consider granting power of attorney only in a matter concerning tax collection, or only in a matter concerning your physical health. The list of options is limitless, and how you choose to grant power of attorney will depend on your specific set of circumstances.

The diversity of estate planning tools available for Texans is vast, and without guidance, it can be difficult to figure out which tool works best for your individualized needs and goals. One specific tool that might be useful for you or a loved one is called the special needs trust. In today’s blog, we review the special needs trust – its advantages, its implications, and important tips to keep in mind if you are thinking about pursuing this trust for someone in your life.

The special needs trust is an irrevocable trust that benefits a physically or mentally disabled individual. The money put in this kind of trust is untouchable to creditors and lenders, and it is managed by a trustee who controls the trust’s assets. Under the law in Texas, the trustee cannot give the trust’s beneficiary money directly from the trust, but he or she can instead use the money to cover the beneficiary’s education, medical needs, and services that might be needed to help the beneficiary navigate his or her disability.

One important advantage of the special needs trust is that the money in the trust does not contribute to the beneficiary’s income for purposes of Social Security Income (SSI). If a disabled person wants to receive these benefits, he or she cannot have more than $2,000 to his or her name. With the special needs trust, however, the amount of money held in the trust has no bearing on this $2,000 maximum. The trust therefore allows these beneficiaries to both receive SSI and, at the same time, keep money in the special needs trust.

Are you delving into the world of trusts and finding yourself unsure of where to start? A common stumbling block for those looking to learn about trusts (or estate planning more generally) is the legal language that comes up in the process. Today, we review some key trust terms that everyone should know, so that you can move forward in your estate planning process with a solid foundation under your belt.

People Involved in a Trust

The trustee: a trustee is in charge of overseeing the assets in the trust. Many people appoint a family member or friend as their trustee, but you can also hire an outside party to oversee your trust.

The beneficiary: a trust’s beneficiary is the person (or group of persons) receiving assets from the trust. Parents, for example, may create a trust for their children – the children then qualify as the beneficiaries.

The settlor: the settlor transfers his or her asset into the trust, which in turn creates the trust.

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In our blog posts in the past, we have reviewed the process of creating, probating, and enforcing a will. In many cases, this process is straightforward, but there are times when complicated factors sneak in. For example: what happens if a person dies with two wills? Which will serve as the controlling document? And how do you navigate this issue if you are going through the probate process?

Who Decides Which Will is the Valid Will?

In short, the probate judge is the person who will determine which will is valid when a decedent leaves behind more than one will. Sometimes, the most important factor in the judge’s decision will be the timing of the will – that is, the will that was created most recently will be the controlling will.

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