Houston Estate Planning and Elder Law Attorney Blog

Texas Estate Planning: The Limitations of a Will

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

The will is the most well-known tool in estate planning, and it is often clients’ first choice for how to make sure their assets are transferred to loved ones after their death. The will can be useful in that it allows individuals to provide detailed instructions for their beneficiaries, and clients are generally grateful to have the opportunity to leave a thoughtful, specific document that coordinates the distribution of their assets for the ones they leave behind.

It is imperative to recognize, however, that wills do have disadvantages, and it is important to explore the limitations of wills alongside their benefits. Of note, anyone that wants to contest a will has exactly two years to do so, or else the will becomes unalterable. When a person dies, their will is submitted to probate, which means the court takes charge of the process of distributing their assets according to their wishes. From the day the will is submitted to probate, any potential challenger to a will has exactly two years to file with the court and contest that will’s validity.

The second obvious disadvantage to a will is that it requires the decedent’s property to go through the probate process. At times, this process can be long, drawn out, and contentious. Courts are charged with interpreting the terms of each person’s will, and there is no guarantee that the court will distribute assets exactly as the decedent intended if there is even one ambiguous phrase in the will.

The Revocable Living Trust: What You Need to Know

Published on: April 11, 2023 | By David W. Miller

Unfortunately, the law around estate planning can be complex and technical in a way that makes it difficult to sort through. Fortunately, though, the law provides for a diverse array of options for those undergoing the estate planning process. Many of our clients come to us, for example, asking us to help them create a thoughtfully written will. It is important to note that wills are not the only option for those looking to make long-term plans. Another tool, the trust, comes in the form of a revocable living trust, which can be beneficial for those looking to both use their assets now and securely transfer them after their death.

What is a Revocable Living Trust?

When done correctly, creating a trust allows individuals to forgo the probate process and pass assets directly to their beneficiaries after they die. If the trust is revocable, the individual maintains the right to suspend the trust at any time, taking back the assets that are hers or his in order to use them in the short-term future.

As we have discussed elsewhere in our blog, the probate process can be long, drawn out, and public. Creating a trust, however, allows for a secure and private transfer of assets upon the designator’s death. By forming a trust, designating a trustee, and naming beneficiaries, individuals can make sure their assets will pass on seamlessly to those they care about.

Trust Interpretation Up for Debate in Recent Texas Court of Appeals Case

Published on: March 31, 2023 | By Thomas W. McCulloch

Recently, a court of appeals in Texas had to decide an important case regarding the interpretation of a decedent’s trust, which had implications for several family members who stood to benefit from the sale of a property specified in the trust. The trust in question was created by a man who intended to leave his property to his brothers, his sisters, and their children after his death. Fifty years after he died, however, the man’s nieces and nephews had questions about how the trust should be interpreted.

Facts of the Case

The decedent in this case passed away in 1964; according to his will, his property was put into a trust for the benefit of his siblings, nieces, and nephews. Per the terms of the trust, the properties would bring in income, and that income would be distributed to the siblings, nieces, and nephews as time went on. Twenty-one years after the death of the last niece or nephew alive at the man’s death, the trust would terminate.

In 2020, the trustee initiated this litigation, asking the court to determine whether one of the pieces of property could be sold. The court’s ruling would be important, said the trustee, because it would affect how income would be distributed to the nieces and nephews, as well as how much income they would receive. One of the nephews became involved in the litigation, arguing the property could not be sold and had to stay as it was.

Decedent’s Wife Defends Claim to Texas Property in Long-Standing Estate Dispute

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

In a recent case before a court of appeals in Texas, the widow of a property owner had to defend her claim to the property that her husband left her in his will. At issue in the case was how to interpret the wills of both the decedent and the decedent’s mother; the decedent’s sons argued the documents made clear that the land belonged to them, while the widow argued that the land was clearly her property. Ultimately, the court of appeals agreed with the decedent’s widow that the property rightfully belonged to her, but the litigation took twelve years from beginning to end.

Facts of the Case

The defendant was the third wife of a man who passed away in 2010. Two years before his death, the man wrote a will that left all of his property to his wife if she survived him. Two of the man’s sons from a previous marriage, however, took issue with this provision after their father died. They claimed that 277 of the acres actually belonged to them – one large piece of property had originally been their grandmother’s, and their grandmother’s estate documents did not make clear whether the land should go to their father’s children or his wife after his death.

The sons initiated this litigation in December 2010. They argued the land qualified as something called a “life estate with a remainder interest”, which means that they were due to inherit the land after their father’s death. The man’s wife, however, argued that the land was actually something called a “fee simple interest”, which means the land should go directly to her as the designee in her husband’s will.

Brother and Sister Litigate Trust Distribution Case in Drawn-Out Legal Battle

Published on: March 21, 2023 | By Thomas W. McCulloch

Brother and Sister Litigate Trust Distribution Case in Drawn-Out Legal Battle

In a recent case before the Fourteenth Court of Appeals, two siblings asked for a decision regarding the assets left in their father’s estate. Originally, the siblings fought when one took longer than the other wanted to distribute funds from their father’s trust. Without clear guidelines for how to handle the father’s estate, the siblings found themselves in a legal battle that went on for years after their father’s death.

Facts of the Case

This case originated when the father of two siblings died in October 2014. After the death, the decedent’s daughter was named trustee of the family’s trust, and it was her responsibility to distribute the money in the trust.

Several years later, the trustee’s brother sued her, arguing that she was intentionally and maliciously keeping funds from him by delaying the distribution of funds. He asked the trial court to order his sister to distribute his share of his father’s estate immediately, as well as to order her to pay the attorney’s fees he accrued in the lawsuit.

Texas Probate Avoidance Strategies: How to Structure Your Assets for the Best Possible Outcome

Published on: March 21, 2023 | By David W. Miller

One very common fear among those starting their end-of-life planning is that the Texas probate administration process will be difficult for their family members after they are gone. It is true that probate administration can be complicated, and it is also true that there are ways that individuals can make sure their assets go directly into their beneficiaries’ hands instead of going through a probate court at all. At McCullough & Miller, we offer guidance as to how to structure your assets so that you can make things as simple and straightforward as possible for your loved ones.

As we have addressed on our blog in the past, Texas probate administration is a process by which a judge presides over the distribution of a decedent’s assets. The entire process takes anywhere from three months to several years, and it can get very complicated as a person’s loved ones try to make sure everything is done thoroughly, fairly, and efficiently after that person’s death.

Avoiding the Probate Process Altogether

There are, however, ways to make sure your money goes directly into the hands of your loved ones if you want to bypass the probate process with certain specific assets. For example, you can add what is called a “payable-on-death” designation to your bank accounts. This means that as soon as you die, a person you name will automatically receive whatever money is in that account. This account is then exempt from the probate process entirely.

A Guide to Navigating Texas Probate Administration

Published on: March 15, 2023 | By Thomas W. McCulloch

A Guide to Navigating Texas Probate Administration

When our clients and potential clients come to us after the death of a loved one, there can be a lot to think through in terms of distributing assets and getting affairs in order. One important process is the probate process, which happens when a Texas court distributes any of a decedent’s assets that are not already transferred by trusts or direct payments. The individual’s remaining assets are reviewed by this court, and the judge presides over the distribution process to ensure that everything is done fairly.

Step by Step: The Probate Process

Even if a recently deceased loved one had a will, that person’s estate will likely still have to go through the probate process. This essentially means that the individual’s executor or personal representative must file an application in a Texas court to let the court know that the individual has died and to request the court’s probate administration services.

Next, the court will hold a hearing on the decedent’s estate. Typically, the court will post some kind of announcement informing the public of the upcoming hearing so that anyone that thinks they have a right to be involved in the probate administration can have notice that the hearing will take place. At the hearing, the judge will begin by making sure the decedent’s will is valid and will hold up in court.

Significant Other Fights for Loved One’s Assets in Recent Texas Estate Planning Case

Published on: March 15, 2023 | By David W. Miller

Significant Other Fights for Loved One’s Assets in Recent Texas Estate Planning Case

In a recent case before an appeals court in Texas, the plaintiff sued a local firefighters’ relief fund, hoping to receive compensation after her loved one passed away. The plaintiff originally asked a trial court to rule that she was entitled to survivor’s benefits after the death of her significant other, who had worked for years as a firefighter. Ultimately, the trial court refused to hear her claim, and she appealed. The court of appeals reversed this decision and gave the plaintiff another shot at having her case be heard.

Facts of the Case

According to the opinion, the plaintiff suffered the death of her significant other, who was entitled to a pension from a firefighters’ relief fund while he was alive. After his death, those funds went to his estate. In her lawsuit, the plaintiff argued that while she was not officially married to her significant other before he died, they were informally married, and she was entitled to some of the funds placed in the estate.

To succeed in her claim, the plaintiff had to prove both that she and her partner were indeed informally married and that this marriage entitled her to money from the relief fund. Because the plaintiff and her significant other had not created an in-depth plan that would automatically distribute his assets to her after his death, the plaintiff proceeded with the lawsuit in hopes of receiving the funds she thought she deserved.

Signs of Elder Abuse: How to Look Out for Your Loved Ones

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

When we speak to clients who have elderly parents, grandparents, or friends, one of their biggest concerns is that their loved ones will be taken advantage of through financial abuse. Financial abuse is incredibly common among elder individuals, and the most important thing that others can do is closely monitor how and when their loved ones’ money is being spent. If friends and family keep a watchful eye, this can greatly reduce the odds that their loved ones will be subject to financial abuse from other less trusted individuals in their lives.

It is important to know what to look for when monitoring for possible financial elder abuse. An obvious red flag is a large or unexplained withdrawal or, even worse, a pattern of large or unexplained withdrawals. If your loved one’s bank account is fluctuating in a way that you know is not in alignment with their spending patterns, it is always better to investigate instead of leaving things to chance.

A rapid loss of money can also indicate possible financial elder abuse. Sometimes, we see elderly individuals who face unexplained taxes during tax season or a large number of complaints on FINRA’s broker check site. If your loved one has a broker who is difficult to contact or who has been exhibiting evasive behavior, this is also a sign to look into how that person’s money is being handled.

Where to Begin in the Estate Planning Process: Common Questions and Misconceptions We See as an Estate Planning Firm

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

As an estate planning firm, we get questions from many clients and potential clients about where to start when thinking about beginning the estate planning process. The process can feel daunting, and more than anything, our clients want the peace of mind that their family members will be taken care of once they are gone. At McCulloch & Miller, we walk with you through every step of the estate planning process so that you can be confident that no stone will be left unturned.

The first and most overlooked part of the estate planning process is gathering the documents you already have in your possession. You might have, for example, insurance policy documents, titles and property deeds, proof of identity documents, and bank account statements that will be relevant to your estate planning needs. Some clients bring in a list of their digital logins and passwords, as well as beneficiary designations and funeral instructions. The exact number of documents will differ for everyone, but beginning the process of looking for what you already have can be incredibly helpful as you take the first step in your estate planning process.

Second, you will want to make a list of your assets so that an attorney can help you figure out where each part of your estate should go. A common misconception we see is that only the super-wealthy have to worry about dividing their assets, but this could not be further from the truth. Anyone who has property, bank accounts, a vehicle, investments, or ordinary goods will have to think about how they want those assets to be divided among the people they love.