Houston Estate Planning and Elder Law Attorney Blog

What You Can Do to Avoid Probate Litigation

Published on: May 24, 2023 | By David W. Miller

As a general rule, a decedent’s assets in Texas must go through the probate process in order for those assets to pass on to the person’s beneficiaries. Because this process can be daunting and time-consuming, clients often come to us for help in figuring out how to avoid probate altogether. By organizing assets and planning ahead, there are ways to prioritize efficiency in passing your estate to your loved ones after your death.

Property

Real property (land, a home, or a building), is typically subject to probate. However, by owning property with another individual, you can automatically pass that property onto the other individual when you die. The property must be owned with the “right of survivorship,” meaning whoever else owns the property upon the decedent’s death has the right to continue owning it if and when they survive another owner.

A “transfer-on-death” deed is another way to pass along real property. This kind of deed must be recorded and processed before the property owner’s death. It essentially means that as soon as a person dies, the property automatically transfers to the beneficiary without any timely litigation.

Probate Considerations When There is Not a Will

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

For many decedents, the probate process involves a probate court judge reviewing that person’s will, ensuring that the will is valid, and then distributing the person’s assets to his or her beneficiaries. At times, however, the probate court has to decide how to proceed when there is no will in place. Even when there is no will, the decedent’s assets and debts must be somehow distributed; in Texas, there are certain rules that dictate how this process plays out.

Rules of Intestate Succession

You may have heard the term “intestate succession” either on our blog or otherwise. This term refers to the distribution of assets to a decedent’s loved ones according to the state’s rules. Essentially, for a person that dies without a will, there are rules and regulations in place that say where that person’s money, property, and debts will go.

If the decedent has a spouse, that spouse will be first in line to inherit the decedent’s estate. If there are no children or parents, the spouse will, in fact, inherit the entire estate. If, however, the decedent and spouse had children together, the spouse receives 1/3 of the decedent’s personal property and the right to their physical property, while the children inherit everything else.

Should You Consider Avoiding Probate?

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

In the past, our blog has focused on the probate process and the many different implications for decedents, family, and friends. As we have emphasized, the probate process is complex, and it involves many actors as well as a detailed procedure that can take anywhere from a couple of months to a couple of years to play out.

When getting to know our clients and their individual needs, we often end up recommending that people try to avoid the probate process altogether – that is, we encourage our clients to think about how to organize their assets and debts in a way that makes them exempt from having to be reviewed by a probate court at all. Because it is so common for a person’s estate to go through probate, it is also important to understand why avoiding probate might be worth considering.

Reasons to Consider Bypassing Probate

First of all, the probate process happens through the probate courts, so everything that goes on becomes part of the public record. If your estate or your family dynamics involve information you would rather keep confidential, avoiding probate might be right for you.

Does Texas Have a Simplified Probate Process?

Published on: May 18, 2023 | By Thomas W. McCulloch

In Texas, the probate process can be overwhelming for beneficiaries and those involved in distributing a decedent’s estate. The good news, however, is that for those whose assets are below a certain amount, there is a simplified probate process available. This process is shorter and more efficient, but it still comes with several important procedural steps that cannot be avoided.

Who Qualifies for the Simplified Probate Process?

There are three basic requirements to qualify for the simplified probate process: the decedent must not have left behind a will, at least 30 days must have passed since the individual’s passing, and the value of all property belonging to the decedent must not exceed $75,000. This $75,000 amount does not include certain exempt property, which is more closely defined in the state statute laying out this procedure.

What Does the Simplified Probate Process Entail?

As the name suggests, this process is less costly and involved, but it still has certain important steps that must be taken. First, inheritors must fill out a form called a “small estate affidavit.” This form essentially tells the court what property and debts are involved in the decedent’s estate, and it lists the people that stand to benefit from the estate’s distribution.

An Overview of the Texas Estate Process

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

We have covered the definition of the probate process on our blog in the past, which is vital information for those developing their estate plans. Also relevant, however, is the specific procedure for probate in the state of Texas since probate works differently in each state and can have a unique set of rules and regulations. At McCulloch & Miller, we specialize in Texas law and are recognized as experts in the field of the probate process in Texas.

What is Involved in Probate in Texas?

In Texas, there are several steps that initiate the probate process once an individual has died. First, the person’s representative files a petition with the court, and beneficiaries, as well as creditors, receive notice that the probate process has begun. Representatives pay off debts and taxes, then distribute the remaining assets with the help of a probate court.

There are certain rules specific to Texas that apply to the probate process, and that might not apply in other states. For example, a decedent’s representative has four years from the date of death to file for probate. If four years come and go, and the representative has failed to file, the court will divide the decedent’s assets based on certain laws of intestacy, meaning rules that dictate which family members or loved ones receive a decedent’s assets when there is no valid will.

What is Probate and Why You Need to Know How Texas Probate Law Works

Published on: May 10, 2023 | By David W. Miller

What is Probate and Why You Need to Know How Texas Probate Law Works

Many beneficiaries to a person’s will find themselves becoming familiar with the probate process once they try to access the funds that their loved one has left behind. It can be important to understand the probate process because it is often the vehicle through which a decedent’s assets are passed on, but it can be complicated and, at times, litigious. At McCulloch & Miller, we are committed to making sure all of our clients understand the probate process so that they can know what will happen with their assets (or the assets of their loved ones) in the future.

The Definition of Probate

Probate is the process of managing and administering the property, money, stocks, or other assets in a decedent’s estate. When a person leaves behind a will and asks that their estate be passed along to their named beneficiaries, that estate often must be reviewed by a probate court before the beneficiaries can access the assets. Typically, those involved in probate are the judge, the personal representative of the decedent, and those entitled to receive the decedent’s assets.

What Does Probate Involve?

The first step in the probate process is for the court to receive a petition for probate, indicating that someone has died and that their assets need dividing. At that point, the court mails notice to all named beneficiaries to let them know that the probate process has begun.

Who Can Benefit from a Texas Special Needs Trust?

Published on: April 30, 2023 | By McCulloch & Miller, PLLC

As we have discussed previously in our blog, trusts can be powerful tools to protect and distribute assets for individuals in a variety of circumstances. One particular kind of trust is called the special needs trust, which is designed specifically for individuals with a disability. This type of trust distributes assets without eliminating its beneficiaries from public benefits, allowing them to receive the care they need while also maintaining a high quality of life even with their disability.

What Are the Kinds of Special Needs Trusts?

First, there is a “first-party trust,” which forms when a trust beneficiary receives some kind of asset, whether it be in the form of money, property, or stock. Normally, when a person’s assets rise to a certain level, that person is disqualified from public benefits that could help provide care for their disability. By using the first-party trust, however, the individual can put the funds into a trust and still receive public benefits. The downside of a first-party trust is that when the beneficiary dies, the state Medicaid agency gets whatever funds are left over at the time of death.

A second kind of special needs trust, the “third-party trust,” forms when someone wants to give a person with a disability a gift or inheritance. The funds in the third-party trust don’t actually belong to the individual with the disability – they are only being used for that person’s benefit. One important upside to the third-party trust is that the government does not end up taking the remainder of the funds when the beneficiary dies, since the funds never belonged to the beneficiary in the first place.

Estate Planning Considerations for Gun Owners

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

One question we occasionally get from our clients is how to manage any guns that might be part of their estates as they plan for the future. If you own a gun, as long as it is registered and legal, there are steps you can take to make sure your beneficiaries can receive the firearm after your passing. There are, however, important complexities to keep in mind when thinking about what that process look like for your estate.

What is Involved in Passing on Guns and Firearms?

If you have any gun or firearm that you would like to pass to a loved one after your death, there are a few steps you need to take in the short-term future. First and foremost, you must think about who exactly you would like to be your gun’s beneficiary. The beneficiary must be legally entitled to gun ownership in terms of their age, criminal history, and citizenship status. It is always safest to also leave a secondary beneficiary, in case something happens where the primary beneficiary is no longer able to accept the gun.

Secondly, it is important to think about the executor of your estate, or the person responsible for distributing the estate’s assets. That person must be able to legally possess the firearm – in certain circumstances, this means having a federal firearms license. Choosing an estate executor is an important decision, and it is important that you trust your executor will have your best interests in mind.

Preparing to Meet with an Estate Planning or Probate Lawyer

Published on: April 24, 2023 | By McCulloch & Miller, PLLC

At McCulloch & Miller, many of the clients we sit down with are meeting with an estate planning attorney for the first time. If you are looking to meet with an estate planning or probate attorney to discuss your long-term needs and don’t quite know what to expect, this guide will help you anticipate your first meeting as well as the process ahead.

Importantly, the estate planning attorney will likely start by setting up an initial meeting with you to understand your goals and provide you with options for how to achieve them. Before you have this initial meeting, it can be helpful to think about what, if any, preparation you could do beforehand.

Typically, when you call an estate planning attorney and set up a meeting, the attorney will send you a basic questionnaire for you to fill out before that meeting. The more information you can fill out on this questionnaire, the better, since it will save you time in the meeting itself if your attorney is already familiar with your family and financial information.

So You’ve Been Named as an Executor or Trustee, Now What?

Published on: April 24, 2023 | By McCulloch & Miller, PLLC

Being chosen as an executor or trustee can be a big responsibility, and it is not one that you should take lightly. If someone you know has asked you to serve either as an executor or trustee, that person believes that you will fulfill your duties in a trustworthy manner, consistent with their wishes. There are important takeaways that you should note if you have found yourself in one of these positions; but, as always, the best thing you can do to fully understand your role is to speak with an experienced, dependable estate planning attorney.

An executor is someone appointed to carry out a decedent’s will. A trustee, on the other hand, is appointed when the decedent has organized their assets in the form of a trust. The trustee has ultimate control over the administration of the trust, but he or she has a duty to follow the decedent’s instructions on how exactly to administer the decedent’s property.

The first thing you should do as an executor or trustee is read the documents left by the decedent, whether those documents come in the form of a will or a trust. The decedent might have left co-executors or co-trustees, for example, or might have written specific instructions about what should happen to the assets in the short-term future. There might be time limits on when these assets need to be distributed, and it is important not to delay the initial review of the will or trust.