Houston Estate Planning and Elder Law Attorney Blog

Texas Estate Planning and Online Accounts

Published on: June 10, 2022 | By Thomas W. McCulloch

With more people than ever with personal information online, Texans may have questions about how to incorporate this information into their estate plan. Can another person take over their accounts after they pass away? Even if someone provides their account information to another, can they legally access the accounts? As people have different preferences over how their social media, email, and financial accounts are handled, the below information can be useful for Texans navigating the estate planning process. Planning ahead and updating this access and estate plans regularly can make life easier for loved ones after they pass away.

Revised Uniform Fiduciary Access to Digital Assets Act

Texas, along with other states, provides access to online accounts to a person’s legal representative if they meet one of two conditions, per the Revised Uniform Fiduciary Access to Digital Assets Act. First, the deceased must have activated a setting within their online account that allows disclosure of the account upon their death, or the deceased’s will must explicitly allow their representative to access their online accounts. Without either of these conditions, the representative cannot access the online accounts, even if they have been given the login information.

To meet the first condition—activating a setting within the online account—many social media platforms will allow individuals to name a “legacy contact,” which provides them with access to the account if the account holder passes away. However, it is better to include this information in an estate plan and be explicit about what accounts—be it social media, financial accounts or others—the estate’s legal representative can access.

Risks of Handwritten (Holographic) Wills

Published on: June 10, 2022 | By David W. Miller

There are two primary types of wills under Texas law: 1) holographic and 2) non-holographic wills. Non-holographic wills are typed, witnesses, and attested wills. In contrast, holographic wills refer to entirely handwritten wills. In Texas, holographic wills are only enforceable when the entire document is written in the testator’s handwriting. While holographic wills might be valid and legally enforceable, more often than not, they result in Texas estate and probate disputes.

A notable example of the dangers of holographic wills involves the popular music group The Monkees. Michael Nesmith, a group member, left a lengthy will leaving his entire estate to his mother’s foundation. However, there were issues with the will’s legality because it was handwritten.

Holographic Will Formation in Texas

Handwritten will appeal to many people who believe that their situations are simple enough that they do not need the assistance of an attorney. However, making a holographic will in Texas requires strict adherence to complex estate laws.

Valid Texas holographic wills require the testator to clearly indicate all items in the will, the recipients of the items, and who should serve as an “independent executor.” In addition, the testator should take steps to ensure that the independent executor knows that the will is valid.

Generational Approaches to Texas Retirement Planning

Published on: May 31, 2022 | By Thomas W. McCulloch

Like with music, pop culture, and politics, members of different generations tend to approach issues differently than others. Generations also approach retirement differently—both in how they are planning for retirement, along with their expectations about retiring. Some generations are more optimistic about retiring at an earlier age, while simultaneously changing their retirement strategy based on economic and technical changes—like incorporating cryptocurrency into their investments. With over 60 million people currently planning for retirement as active 401(k) participants, it is important to discuss these differing strategies, how people feel about retirement planning, and how estate planning attorneys can provide additional advice to make people feel more secure.

Expectations About Retirement Age

Studies have shown a difference in opinion on when individuals in each generation expect they will be able to retire. Younger generations, like Gen Z, expect to retire at an earlier age than other generations. For example, the median age that Gen Z believes they will stop working at is 57 years old; however, Generation X—individuals between the ages of 42 and 57—do not expect to retire until they are 64 years old.
Despite this information, only 57 percent of all Gen Z members believe they will retire at some point—indicating a significant difference in opinion among people in this generation—whereas 62 percent of millennials believe they will retire at some point.

Retirement Plans Differing by Generation

While most individuals in all generations are planning for retirement, they are doing so in different ways. For example, Generation X and baby boomers plan to rely upon Social Security benefits, 401(k) and pension plans to support themselves. While members of younger generations do not assume that Social Security and Medicare will be available for them by the time they expect to retire, as many officials predict that Social Security benefits will be depleted by 2030. Because of this, millennials and Gen Z plan to rely more on their 401(k) savings as their major source of retirement income. However, younger generations also plan on relying on financial technology within their investment portfolio, like cryptocurrency. Many members of this generation believe that cryptocurrency will give them the highest return on investment, despite its current lack of regulation and potential volatility.

Cryptocurrency and Texas Estate Planning

Published on: May 31, 2022 | By David W. Miller

With the rise of cryptocurrency, many Texans are curious about how cryptocurrency can be implemented into various aspects of their lives—be it estate planning, investing, or other methods—along with its potential stability in the future. However, other individuals do not know the basics about cryptocurrency, including what it is or why they should potentially engage in this virtual currency. Because of this, below are explanations about the underlying nature of cryptocurrency, its potential in the future, and current government recommendations for how it should be implemented in estate planning and investing.

What is Cryptocurrency?

Cryptocurrency is a digital currency exchanged through a computer network. This computer network is often a blockchain that transmits the currency. Unlike many other currencies, it is decentralized, meaning there is not a primary government or bank used to maintain it. While one of the most infamous cryptocurrencies is Bitcoin, there are currently over 9,000 other cryptocurrencies in the marketplace.

Should Cryptocurrency be Included in My Estate Plan?

Since cryptocurrency is an asset that individuals may have, it should be included within a person’s estate plan. The individual writing the will—the grantor—should detail who should receive any cryptocurrency assets that remain after they have passed away. Cryptocurrency would then be treated like other assets in the will and provided to the designated beneficiary. As cryptocurrency is only online, it is also important for the grantor to detail how someone can actually access these records, making it easier for the estate executor to fulfill his duties and transfer the assets to the beneficiary.

Critical Mistakes to Avoid in a Texas Estate Plan

Published on: May 26, 2022 | By McCulloch & Miller, PLLC

When people begin the estate planning process, they often worry about making mistakes and the problems this could cause down the line. And it is true, when Texans have errors in their estate plan—or do not recognize something is a mistake and purposefully include it—there can be long-term consequences for loved ones attempting to execute the will after the person has passed away. Thankfully, many common estate planning mistakes can be avoided by careful consultation with an experienced estate planning attorney. Below are common estate planning errors and how they can be prevented.

Failing to Name Beneficiaries

In drafting an estate plan, some individuals will forget one of the most critical aspects: naming beneficiaries to inherit their assets after they pass away. While they may name beneficiaries for certain, obvious, assets like property or personal items, they may forget for other financial benefits like retirement plans and life insurance policies. It is just as important to decide upon a beneficiary for these financial accounts too in order to avoid the probate court process. Otherwise, a judge will determine who will receive these policies—and it is often the closest blood relative, regardless of the personal relationship the deceased and the person may have had.

Not Explicitly Providing Assets to Children

Especially in blended families and second marriages, individuals will forget to explicitly provide assets to their children—instead, giving it all to their current spouse. While in an overwhelming majority of cases the spouse will then financially assist the children in the future—even if they are not their own children—estate planning attorneys still recommend leaving assets to the children themselves, just in case. For example, even if the surviving spouse knew the deceased wanted them to use some of the money to assist the deceased’s children, if there are not protections in the will, there is nothing requiring them to do so. But if the children are named as beneficiaries or provided their own assets, then they will be more financially secure and not have to worry about any changes the surviving spouse may make in the future.

What is a Texas Living Trust?

Published on: May 26, 2022 | By David W. Miller

When beginning the estate planning process, most people begin with creating a will and other documents like healthcare directives, medical power of attorney, and funeral arrangements. However, they often forget about living trusts, which have many unique benefits. Unlike a will, a living trust allows an individual to transfer assets to loved ones and avoid the probate court process entirely for the assets placed in the trust. Below are some of the most common questions about living trusts, along with answers to these questions.

What Should I Know About a Living Trust?

A living trust allows the creator—also known as the grantor—to transfer assets to beneficiaries after they have passed away without having those assets go through probate, unlike those bequeathed in a will. The grantor still holds ownership to the assets in the trust until they pass away, meaning the grantor can remove or add assets in the trust—or change the named beneficiary—until their death. Once the grantor dies, the assets are distributed to the beneficiary of the trust.

What Assets Should be Placed in a Trust?

There are some assets that estate planning attorneys recommend placing in a trust, and there are some assets and accounts they recommend do not go in a trust. Some assets that people can fund a trust with include financial accounts, like stocks, mutual funds, bank savings accounts, and money market funds. Property, like a title to a house, can also be put in a trust. While individuals may become hesitant about putting such valuable assets in a trust, it is critical to remember that the trust is revocable, and the assets can be removed at any time. Personal property, like family heirlooms, can also be put in a trust. While most people will instead put these items in a will, a will becomes a matter of public record, unlike a living trust.

How to Discuss Texas Estate Planning With Your Parents

Published on: May 17, 2022 | By McCulloch & Miller, PLLC

Some conversations are easier than others to have with your parents—as a child, a teenager, and even as an adult. And as parents age, there are certain aspects of life their children may be concerned about—especially when planning ahead can potentially avoid disasters in the future. One of these topics is estate planning. While starting the conversation about estate planning with parents may not be easy, it is critical to do so in order for children to know how their parents would like future decisions to be made. Below are some questions that children can ask their parents about estate planning to begin the conversation and ensure they are taken care of in the future.

Do You Have an Estate Plan in Place?

The first question that elder parents should be asked is if they already have an estate plan in place. Some individuals may assume they do not need a will, most likely because they do not have significant assets to pass on, but this is not the case. Having a will can ensure the assets and personal property a person does have is passed on to who they would actually like to receive the gifts and not have to go through a long, drawn-out process.

Additionally, there are other documents in an estate plan that are critical for aging loved ones to have, such as a financial and medical power of attorney—having these documents allows a designated loved one to make decisions on their behalf in case they are physically incapacitated or mentally unable to do so for themselves anymore. These estate planning documents can also identify how they would like to be cared for in the future and how drastic of medical treatment they should receive. This allows loved ones who have to make this decision the peace of mind, knowing they are making choices the person would approve of. Even if an aging parent says they do have an established estate plan, it is still a good idea to have an attorney review it every few years to make sure it is accurate and up to date.

Does My Older Loved One in Texas Need a Guardian?

Published on: May 17, 2022 | By Thomas W. McCulloch

Parents take care of their children as they grow up and age. However, when these parents are getting older, children may get concerned about their parent’s health and well-being. In these cases, they may seek a guardian for their loved one, to take care of their personal and financial affairs. They, of course, want to take their parent’s wishes into account, but also may not want to leave them on their own anymore—especially if they are physically incapacitated or are in mental decline. Below is information about when Texans should seek guardianship for their aging parents, along with essential aspects of a guardianship.

What is a Guardianship?

Guardianship is obtaining the legal authority to make choices for another individual. A guardian is someone responsible for another person’s personal and financial affairs when they are no longer mentally capable of making these decisions for themselves. By law, individuals are assumed mentally capable of making their own decisions; because of this, people must go through a court process to declare someone incapacitated and appoint a guardian for them. A guardianship may be needed if the person cannot take care of themselves due to mental illness, disease, or mental incapacity.

Because guardianships can mean individuals do not have the ability to make decisions for themselves—including the ability to marry, vote, or even make certain medical decisions—courts will sometimes limit a guardian’s authority to the area they may need help with, like financial affairs.

Avoiding Common Texas Estate Planning Mistakes

Published on: May 10, 2022 | By Thomas W. McCulloch

Many experienced estate planning attorneys have a list of the worst estate planning mistakes that Texans can make. For many attorneys, at the top of the list is inadvertently leaving money to the wrong person in their estate plan. Most people have strong preferences on who should inherit their money and property after they pass away—this is why they have an estate plan in place. However, even individuals with estate plans may make mistakes that lead the wrong person to benefit from the error. Below are some of the most common estate planning mistakes and how they can be avoided, according to Texas estate planning attorneys.

Ex-Spouses Inheriting Money

One estate planning mistake that many people fear is their ex-spouse inheriting their money or property after they pass away. Most formerly married couples do not want their ex-spouse to receive their assets if they die first. While most state laws ensure former spouses lose property rights after a couple is divorced, individuals must change their beneficiaries on estate planning documents as well.

Before getting divorced, most individuals will name their spouse as their beneficiary—for pensions, insurance policies, and bank account beneficiaries as well. If the beneficiary designation is not changed after the divorce and one of the former spouses passes away, then their ex may inherit the asset. Estate planning attorneys can help advise clients on changing these designations as soon as the divorce is finalized and provide recommendations on who should replace the ex-spouse as the beneficiary.

How to Incorporate Bypass Trusts in Texas Estate Plans

Published on: May 10, 2022 | By David W. Miller

Because estate planning laws are constantly changing, individuals often wonder if they should be changing their estate plans or utilizing other strategies. Some of these changes are known—such as the reduction of the federal estate tax exemption in 2026—whereas others are passed by Congress last minute and can be difficult to predict. In order to prepare for these changes, estate planning attorneys have recommended two strategies for some married couples hoping to limit their federal estate tax liability: the spousal portability election and bypass trusts. Below is information about both of these strategies, and how they can be helpful to Texas married couples going through the estate planning process.

What is a Bypass Trust?

A bypass trust allows married couples to not have to pay the estate tax on certain assets after one spouse passes away. When one spouse dies, the assets within the estate are split into two separate trusts: a marital trust, and a bypass trust. For those assets placed in the bypass trust, the surviving spouse does not own those assets but can access the trust and utilize some of the funds within it. Someone must act as the trustee of this trust, it can be the surviving spouse, and ensures the assets are divided appropriately into each trust and that the trust’s assets are being carefully managed. The assets not placed in the bypass are placed into the marital trust, which the surviving spouse can access at any time and use the funds as they see fit.

Bypass trusts are useful for individuals hoping to limit their federal estate tax liability because up to $24.12 million in the bypass trust are not subject to the estate tax. And assets in a bypass trust are not overseen by the probate court process. Similarly, assets in a marital trust are not subject to the estate tax at all.