Houston Estate Planning and Elder Law Attorney Blog

Can You Limit the Power Granted by a Power of Attorney in Texas?

Published on: January 31, 2024 | By McCulloch & Miller, PLLC

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.

What is a Special Needs Trust?

Published on: January 31, 2024 | By McCulloch & Miller, PLLC

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.

Trust Terms Everyone Should Know

Published on: January 19, 2024 | By McCulloch & Miller, PLLC

woman retirement risks and estate planning

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.

What Happens if Someone Dies with Two (or More) Wills in Texas?

Published on: January 19, 2024 | By McCulloch & Miller, PLLC

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.

Which Assets Must Go Through the Probate Process in Texas?

Published on: January 19, 2024 | By Thomas W. McCulloch

It is safe to say that no one looks forward to navigating the probate process – it can be daunting for those that have lost loved ones and are just trying to get the decedent’s affairs in order. At McCulloch & Miller, part of our goal is to demystify the probate process for clients and potential clients, to help them feel like they have a better grip on what might happen through their interactions with the courts. Today, we cover which assets must go through the probate process, as well as which assets typically are exempt.

Probate Assets

Any real property typically goes through probate in Texas – this, notably, is a broad category of assets that includes real estate, money in non-exempt bank accounts, pieces of land, vehicles, and other important objects or possessions. The probate court’s job is to interpret the decedent’s estate planning documents and determine how these assets should be divided up. In the absence of a will, the court will divide the assets up according to intestate laws in Texas, which tell the court the specific family members that are entitled to receive the decedent’s property.

What if an Executor Does Not Start Probate?

Published on: January 19, 2024 | By David W. Miller

In an ideal world, probate would go smoothly in every case, and a decedent’s loved ones would always be confident that their inheritance is being handled professionally and well. In reality, however, there can be problems that come up during probate. One such problem, which is rare but severe when it does happen, is when an executor fails to initiate the probate process. On today’s blog, we cover some of the implications of this failure, as well as a few options available to those who have found themselves in this unfortunate situation.

One of the first (and perhaps most obvious) issues that arises from an executor failing to start probate is that the decedent’s assets do not transfer to his or her heirs. Through probate, a court decides that an individual’s will is valid, and the court authorizes the distribution of the decedent’s assets to his or her beneficiaries. Without this process, the assets get stuck, and the heirs are unable to receive their share of the estate.

Similarly, debts fail to get resolved if an executor does not start probate. This means that debtors can still pursue the decedent’s money and property, even going so far as to sue those with access to the decedent’s assets. A decedent’s estate will also continue to be responsible for recurring payments, such as property taxes, if probate has not begun. These costs can add up over time, taking away from the inheritance that beneficiaries will eventually receive once probate does get underway.

What Happens to Your Firearms in Texas After You Die?

Published on: January 12, 2024 | By Thomas W. McCulloch

If you or a loved one own a firearm, you have hopefully started to think through what would happen to that firearm in the event of your death. In Texas, there are several considerations to keep in mind when planning for your firearms long term, and today’s blog post is intended to serve as a first step in helping you figure out how to make your plans a reality.

Passing a Firearm Through a Will

The most logical way to pass a firearm to a loved one is to include a provision in your will or estate plan. There are several complications to keep in mind. First of all, your intended beneficiary must be legally able to own a gun. If that person is prohibited from being listed on a gun registry or has any other restriction in place regarding possible firearm ownership, your estate executor will run into significant problems trying to pass the gun to the beneficiary after your death.

The estate executor himself must also be legally able to own a gun. Sometimes, this involves having a federal firearms license. Check with your estate executor and see if there are any possible impediments to his gun ownership – if there are, you are better off addressing those now than down the road, when time is of the essence.

Can a Beneficiary Inherit a Gift if They Received it During the Testator’s Lifetime?

Published on: January 10, 2024 | By David W. Miller

Many of our clients are parents or grandparents hoping to set up their heirs for financial success in the long term. One strategy that these clients use is the lifetime gift, which allows individuals to give money while still alive instead of through their estate plans. What are the implications, though, of this lifetime gift for a person’s estate planning documents? In today’s blog, we cover the overlap between these two types of gifts.

What is the Lifetime Gift Limit?

The government permits individuals to give financial gifts of a certain amount to beneficiaries of their choosing without facing tax consequences – this means the individuals can give money away while they are still alive without having to pay the federal gift tax. In 2024, the annual federal gift tax exclusion amount is $18,000 per person and $36,000 for married couple. This kind of gift allows individuals to give money away in increments over the course of their lives, perhaps to their children or their grandchildren.

Does the Lifetime Gift Prohibit Beneficiaries from Inheriting in a Will?

If a son, daughter, or grandchild inherits over the course of the parent or grandparent’s lifetime, he or she can still inherit at the parent or grandparent’s death. Importantly, however, if the estate documents are clear that the lifetime gift was intended to replace the will, trust, or estate document’s provision for a gift, the probate court will likely rule that the beneficiary cannot receive both gifts.

Who Will Inherit Your Digital Footprint in Texas?

Published on: December 27, 2023 | By Thomas W. McCulloch

Who Will Inherit Your Digital Footprint in Texas?

In 2024, the question of a decedent’s digital footprint is more relevant than ever. A digital footprint includes (but is not limited to) a person’s emails, texts, social media accounts, credit card accounts, cell phone data, and photographs – essentially, a digital footprint includes a wide array of personal information. As more questions arise about what will happen to this footprint upon an individual’s death, we look to Texas legislation, which has provided promising signs of progress.

Revised Uniform Fiduciary Access to Digital Access Act

In 2017, Texas enacted an Act, the Revised Uniform Fiduciary Access to Digital Access Act (sometimes referred to as “RUFADAA”), that dictates how an estate’s executor is able to access a decedent’s digital assets. Essentially, as long as the executor has valid legal authority and complies with each account’s terms of service, that executor can access the digital assets in question. There are certain restrictions under the Act – for example, it generally keeps the executor from accessing the decedent’s emails, texts, and social media accounts.

Probate and Family Feuds: How to Avoid Conflict

Published on: December 27, 2023 | By David W. Miller

Estate planning in Texas can be a stressful process, no matter the circumstances surrounding it. When there is possible familial conflict, however, estate planning and probate can become even more tenuous for everyone involved. To avoid family feuds, we at McCulloch & Miller recommend a few strategies that can help steer your loved ones clear of frustrating fights and emotionally charged conversations.

Plan Ahead

The biggest piece of advice we can give you in order to keep everything (and everyone) at peace is to plan ahead. By drafting your estate plans early and by making sure everything is set in stone as soon as possible, your family can grow accustomed to the preferences you articulate in those documents. Unfortunately, the alternative is that loved ones will be caught by surprise, which rarely goes over well.

Set a Family Meeting

Once you have finalized your estate planning documents, set a meeting with your family so that everyone can understand how you have organized your assets. Make sure your loved ones feel included by asking them if they have questions or if they need any additional information. By communicating clearly throughout the process, you can make sure to do everything in your power to help your family avoid a high-stress situation down the road.