Houston Estate Planning and Elder Law Attorney Blog

Important Power of Attorney FAQs

Published on: September 15, 2024 | By McCulloch & Miller, PLLC

Power of attorney is an important part of any estate plan that individuals tend to overlook. To cover some of the power of attorney basics, today’s blog focuses on the most frequently asked questions on the topic. With specific questions about how power of attorney applies to you or to learn more, we recommend that you contact a Houston estate planning attorney today.

What is Power of Attorney?

Power of attorney is a legal document that allows another person to act on your behalf. The document creates a relationship between the person appointed (the agent) and the person signing over the right to act in certain situations (the principal).

What Makes a Power of Attorney Legally Valid in Texas?

To create a power of attorney, there are several legal requirements. These include: signing the document in front of a notary public, being at least 18 years old, and having decision-making capacity when you sign the document. Without these requirements, the power of attorney may not be legally valid and may not hold up in court.

What is a Revocable Living Trust? Should You Have One?

Published on: September 7, 2024 | By Thomas W. McCulloch

The estate planning process in Texas offers a variety of tools for those looking to avoid probate. One such tool that we encounter often in our practice is the revocable living trust. On today’s blog, we cover the basics of the revocable living trust as well as a couple of signs that might indicate a revocable living trust might be right for you.

The Revocable Living Trust

A revocable living trust is a trust that you make 1) during your lifetime and is 2) revocable (meaning you can revoke, amend, or change it at any point during your lifetime). This trust is a vehicle you use to hold title to other assets. For example, your house or your brokerage account might be contained in a revocable living trust. This trust helps you control what happens to your assets when you pass, and it helps your loved ones avoid probate when administering your estate plan down the line.

How to Know if Your Estate Plan is Up to Date

Published on: September 7, 2024 | By David W. Miller

Drafting an estate plan is an important first step in every person’s estate planning journey, but the work does not end there. Importantly, your estate plan should be up to date as you navigate life’s twists and turns. Today, we answer a common question we receive from our client community: how do you know if your estate plan is up to date?

Updating Your Plan Every Three to Five Years

As a general rule of thumb, you should update your estate plan approximately every three to five years. If five years have passed since you last looked at your estate plan, this is a sign that your plan may not be current. At McCulloch & Miller, we recommend having an estate planning attorney review the plan during this timeframe to ensure the plan is up to date with any changes in the legal landscape. As laws around probate and estate planning change, so should the will or trust associated with your estate plan.

Updating Your Plan Along With Life Changes

Your plan might not be up to date if you have undergone a change in life circumstances. For example, have you gotten married, separated, or divorced? Have you had children, or have your children moved out of the house? Have you acquired new property or debts? Are you subject to a new court order, such as a child support or alimony order? If any of these apply to you, your estate plan should reflect your change in circumstances.

A Will or a Trust: Which is Right for You?

Published on: August 29, 2024 | By McCulloch & Miller, PLLC

There is no “one size fits all” approach to estate planning. Each person brings his or her own set of circumstances, goals, and opportunities to the table. One of the first questions we discuss with our potential clients during a first meeting is whether they would like to move forward with a will or a trust. There are basic differences between the two tools, and these differences can help clients decide which tool (if either) is right for them and their families.

How Much Do You Value Privacy?

If it is important to you for your assets, debts, and estate plan to be kept private, a trust might be better for you. A will passes through probate court, meaning a judge will have to validate the will before approving the distribution of the assets. These proceedings become part of the public record. A trust, on the other hand, allows you to forego probate altogether, which shields your estate plan from public view.

How Complex is Your Estate?

In general, a more complex estate lends itself better to a trust than to a will. While there are certainly exceptions to this rule, if you have assets such as an interest in a business, multiple real estate properties, or significant investments, you may want to consider a trust over a will. It is sometimes easier to tailor a trust to a client’s specific estate, and if you have a complex estate, the trust might allow you to more easily meet your personalized goals.

Estate Planning Mistakes in Texas and How to Avoid Them

Published on: August 22, 2024 | By David W. Miller

If you are starting to think through your estate planning process, it can be difficult to know where to start. In our decades of practicing as Houston estate planning attorneys, we have noticed several mistakes that are common for people to make as they start their estate plans, and we have developed helpful tools for how to avoid them. On today’s blog, we will review these estate planning mistakes in hopes of helping you get a strong start in your estate planning journey.

Mistake #1: Not Starting Early

It is tempting to wait until you are “later in life” to begin your estate plan. Unfortunately, the reality is that we never know what life has in store for us. No matter your age, it is prudent to speak with an estate planning attorney that can help you figure out how to draft a plan that works for you. If something unexpected were to happen and you did not have a plan in place, your loved ones would be left in disarray trying to make arrangements for your assets.

Mistake #2: Using a “One Size Fits All” Approach

We understand the allure of using a DIY will that you can find online. In reality, though, every person has a different set of needs and circumstances. In fact, a will might not be right for you at all: a trust might be a better tool for your estate plan, in that it could help you avoid probate and get money to your beneficiaries more efficiently. Without taking the time to explore different options, you could miss out on important tools to shape your estate plan. Exploring these options also reinforces the importance of including provisions that many people forget to include in their plans, such as power of attorney, end of life care instructions, funeral arrangements, and instructions for your digital footprint.

Three Signs It’s Time to Review Your Estate Plan in Texas

Published on: August 22, 2024 | By Thomas W. McCulloch

Maintaining your estate plan is a bit like maintaining a car: it occasionally requires effort, but if you remain diligent, you should be well taken care of. The good news is that if you already have an estate plan, you have put in a significant amount of time and work, and this will help you down the road. However, we always recommend keeping an eye out for indications that it might be time to review your estate plan. Today’s blog reviews three signs that you might need to update your plan.

Three to Five Years Have Gone By

The first, and easiest, indicator that you might need to update your estate plan is that the last time you changed your plan was between three and five years ago. As the legal landscape changes and your circumstances change, it is smart to call up your estate planning attorney and think about updating the plan. This should happen at least twice every decade.

You’ve Experienced a Change in Family Circumstances

The following changes could warrant an update to your estate plan: marriage, separation, divorce, a child support order, the birth or adoption of children, the death of a close family member, or the aging of your children. With any of these circumstances, you should update your estate plan to make sure it aligns with what your life looks like in its current state.

Efficiently Transferring Ownership of a Family Business in Texas

Published on: August 15, 2024 | By Thomas W. McCulloch

If you are a business owner and want to transfer your ownership to a family member or external party, there are several options available to you. The best option, as always, will depend on your own circumstances and goals. On today’s blog, however, we review the basics of the most common options that business owners use when transferring ownership of their business. The most fundamental tip we offer to those considering transferring ownership of a business is to start looking into options early. Because the process requires so much care and attention, it’s never too soon to start thinking through the various possibilities.

Option 1: Gift the Business to a Family Member

If you have a daughter, son, or grandchild that you want to take over your family business, the first option is to transfer the business as a gift. In the United States, the gift tax exemption gives business owners the opportunity to transfer their company, in part or in whole, without charging any money. This federal exemption changes every year, so be sure to ask a wealth planning professional or estate planning attorney about this year’s annual limit.

Option 2: Sell the Business

You can, of course, sell your business in part or in full. By selling only part of the business, you can retain some ownership (and therefore some control) over the business while you take the time to pass down your institutional knowledge to the next generation. You could choose to do an internal sale, selling to a family member, or an external sale. Either way, it is important to think through your options early and do your due diligence so your business can carry on successfully.

Guardianship Issues Under Texas Law

Published on: August 15, 2024 | By David W. Miller

At McCulloch & Miller, we handle everything from estate planning to trust administration, from special needs planning to elder law. One area we are proud to specialize in is guardianship, which is the legal process that takes place when an individual can no longer make competent decisions independently. When a court decides that an individual needs a legal guardian, that guardian takes over the individual’s personal finances and affairs, serving in a comprehensive and holistic role. Guardianship is a complicated process, and today we review some basics to help you understand a few of the most common guardianship issues under Texas law.

Issue 1: Knowing When to Appoint a Guardian

It can be very murky for a court to decide when a person needs a guardian. In general, the court will require a thorough exam that draws a conclusion as to whether the individual has a medical condition prohibiting him or her from functioning at high mental capacity. The standard for guardianship appointment is generally high; courts do not want to appoint a guardian for someone that might not need one. For example, if a person makes decisions that are unsound or that his relatives disagree with, that does not necessarily mean the person needs a guardian. Instead, courts often appoint guardians when a person suffers from dementia or has fallen into a coma. It can sometimes be difficult to decipher when a guardian might be needed, especially because the process inherently means the person’s freedom will be extremely limited as a result.

Issue 2: Choosing a Guardian

Choosing a guardian can be tough. In many circumstances, courts prefer a family member; however, professional guardians can also be appointed. At McCulloch & Miller, we help draft what is called a “Declaration of Guardian,” which is a legal document that clients can put into their estate planning documents in preparation for the possibility of guardianship.

Why It’s Important to Learn About Probate Before Filing

Published on: August 8, 2024 | By Thomas W. McCulloch

The reality is that no one wants to find themselves in probate court. Probate courts evaluate a decedent’s will and decides whether the will is valid before approving the distribution of the decedent’s assets. If you are planning on filing in probate court, it is wise to take some time to first understand how the court works and what you need to do. By learning about probate court before filing, you can save yourself a major headache down the road.

Reason 1: There Are Several Texas Probate Courts

The first reason to learn about probate before filing is that there is more than one probate court. If you file in the incorrect court, the court could determine it does not have authority to hear your claim. You will then have to re-file in another court. To save time and money, figure out ahead of time which of the four Texas probate courts you should use. In general, if the decedent was a Texas resident, the county where he or she died will be the county where you should file for probate.

Reason 2: Probate Costs Money and Time

It can be costly to go through probate. Filing fees and attorney’s fees can take a toll on a family, and it is important to look into these fees ahead of time so that you can plan accordingly. Probate attorneys are required in most probate cases in Texas, and finding the right attorney can be a process. You should always make sure your chosen attorney is upfront about their fees before you decide to retain them.
The time that probate takes can also be frustrating for beneficiaries that are anxious to receive the assets a decedent left behind. Probate can take anywhere from a few months to over a year. By going into probate equipped with this knowledge, you can plan your finances accordingly.

Understanding Medicare v. Medicaid in Texas

Published on: August 8, 2024 | By David W. Miller

Medicare and Medicaid are two government benefits with very different purposes and very similar names. Because clients often come to us feeling understandably confused between the two, today’s blog post will cover the fundamental differences. This blog can serve as a touchpoint for the future when you want to apply for either benefit.

What is Medicare?

Medicare is health insurance from the federal government. The government provides Medicare for anyone 65 or older, as well as some people under the age of 65 who have certain qualifying disabilities. When you reach the age of 65, though, regardless of your health, you automatically qualify for Medicare.

To receive Medicare under the “qualifying disabilities” standard, individuals must have received Social Security Disability benefits for 24 months. As an alternative, individuals could have one of two conditions: (1) End Stage Renal Disease (ESRD) or (2) Amyotropic Lateral Sclerosis (ALS). Frustratingly, individuals with one of these diseases can only receive Medicare five months after their diagnosis. In general, it can take a long time for the government to process Medicare paperwork, so we recommend applying as soon as you know that you might qualify under one of these conditions.