Houston Estate Planning and Elder Law Attorney Blog

What Is a Texas Spendthrift Trust?

Published on: April 5, 2021 | By McCulloch & Miller, PLLC

When a person has property or assets they would like to pass onto loved ones, their best option is to open a trust to manage their assets. However, there are many types of trusts, so it may be difficult to determine which type of trust is the correct one for an individual and their beneficiaries. One type of trust Texans should consider is a spendthrift trust. A spendthrift trust manages a person’s money and property, so the beneficiary of the trust is unable to sell or misuse the funds by receiving them all at once. By creating a spendthrift trust, the creator of the trust can limit a beneficiary’s access to the entirety of the assets at once—which is especially helpful if they are afraid they may spend the money unwisely.

What Is a Spendthrift Trust and Who Should Use One?

A spendthrift trust limits the ability of the beneficiary—the person who will inherit the property—to access the property or assets that are placed in their name. Instead of directly providing the beneficiary with the assets from the trust, the beneficiary receives the assets through the trustee, a third party who manages the trust. While the way the beneficiary receives the assets depends specifically on the trust, some options include regular payments from the trust, as well as the trustee purchasing goods on behalf of the beneficiary with the assets from the spendthrift trust.

What Is a Texas Transfer on Death Deed?

Published on: March 30, 2021 | By McCulloch & Miller, PLLC

Texans who own their home often have thoughts about what they would like to happen to the property after their passing. While there are multiple ways to transfer property after a person has died, one of the easiest is called a Transfer on Death Deed (TODD). A Transfer on Death Deed names the individual—or individuals—who will receive the house after the owner’s death. Although Houston Transfer on Death Deeds are not exceedingly complicated, below are common questions and answers about this particular deed process.

What Is a Transfer on Death Deed?

A Transfer on Death Deed allows an individual to create a document that leaves real estate property to a loved one after they have passed away. The property will automatically go to the heir named in the document without the need for probate court proceedings. The TODD process is extremely simple: the owner must sign the deed, get the signature notarized, and file the deed with the county clerk’s office before their death. Within the deed, the following information should be included: the name of the owner of the property, the person, or people, receiving the property, and a statement that the property will be transferred upon the owner’s death. As many people can be named as heirs as the owner wishes.

What Is a Texas Physician Order for Life-Sustaining Treatment?

Published on: March 29, 2021 | By McCulloch & Miller, PLLC

Thinking about end-of-life treatment is often stressful and overwhelming. However, planning ahead can often be the difference between having a medical professional follow your wishes and risking the alternative. A way to keep control over medical care is by filling out a Physician Order for Life-Sustaining Treatment (POLST) form. A POLST form provides important medical decisions for emergency medical personnel to follow. The order can be applied at any place of treatment and includes decisions like whether or not to administer cardiopulmonary resuscitation (CPR). Below are common explanations about POLST forms and their necessity for those engaging in the Houston estate planning process.

What is a POLST Form?

A POLST form is a physician order set that travels with a patient from one place of treatment to another. The form discusses the patient’s preferred method of treatment, specifically regarding CPR status, intensity, and use of additional methods like antibiotics. The individual fills out the form and it is signed by a physician. When the patient is transferred to another location—or is discharged—the form literally goes with them.

What to Do When a Loved One Has More Than One Will in Texas

Published on: March 24, 2021 | By McCulloch & Miller, PLLC

While Houston estate planning may seem complicated, completing this process pays off in the long run. For individuals who start multiple wills throughout their lifetime—or have started a few drafts of wills but never completed one—a probate court battle will likely ensue after their passing. Family members may argue over which will is valid, especially if the details of the will benefit them more than another version of the will. This, unfortunately, can lead to bitterness and feuding family dynamics that are hard to overcome. Because of this, individuals should draft a comprehensive estate plan—and contact a Houston experienced estate planning attorney if they wish to make changes at a later time.

In the estate battle of legendary singer Aretha Franklin, her sons are disputing how her estate should be run—and which handwritten document is actually her will. According to a recent report, at the time of the singer’s death, her family assumed that she did not have a will. However, over the past two years, a few handwritten documents have emerged—which may represent two or three different wills—along with a few documents entitled “The Will of Aretha Franklin” that are stamped “draft” and do not include the singer’s signature. While a court has not yet decided which of these documents—if any—constitutes Franklin’s will, this will likely be a lengthy and expensive court battle.

Validity of Multiple or Holographic Wills

The Dangers of Handwritten Wills and the Importance of Diligent Preparation in Texas Estate Plan

Published on: March 22, 2021 | By McCulloch & Miller, PLLC

Because people craft Houston estate plans during different parts of their life, their situation may change, prompting them to change a portion of the will. Whether this is due to a divorce or the birth of a child, Texans often make changes to their estate plan. However, when this is done in hasty or improper ways, like writing a new will on a napkin, courts will often not recognize these improper revisions. Because of this—and to reduce expensive court battles—individuals need to diligently prepare and take the proper steps to change their estate plan.

After the passing of renowned journalist Larry King, the battle over his estate shows the necessity of modifying an estate plan correctly and not creating a handwritten will to replace it last-minute. According to a recent news report, because King and his wife were living apart—and a divorce pending—one of his children sought to become a special administrator of his father’s estate, although King’s will named his wife as the executor. Additionally, the son points to a handwritten will dated two months after King filed for divorce in 2019, which states he wanted all of his assets to be divided equally amongst his five children, and this should replace all previous writings. However, this will be a lengthy legal battle, as California, where King resided, has very specific requirements for a handwritten will to be deemed valid.

What Makes a Handwritten Will Valid?

How to Prevent Financial Exploitation Through a Houston Estate Plan

Published on: March 16, 2021 | By McCulloch & Miller, PLLC

With the technology available in the 21st century—along with the COVID-19 pandemic—financial exploitation and fraud are at an all-time high. In fact, the FBI has determined that elder fraud has generally increased over the past year and that elder fraud is an FBI priority. Especially for the elderly, their diminished interaction with others during the pandemic makes it less likely to notice behavior that puts them at higher risk for exploitation. Despite this alarming news, the creation of a Texas estate plan can help reduce elder fraud and financial exploitation.

How to Prevent Financial Exploitation

Financial exploitation is fraudulent action committed by a caregiver, fiduciary, or other individuals where they use the resources of an older person for their own personal gain. This often includes depriving the elder of their money, assets, and other belongings. Common examples of elder exploitation include theft of money by a caregiver or family member, a power of attorney improperly acting on behalf of the elder, and investment scams selling unnecessary financial services and products.

What is Undue Influence and How Can You Prevent It?

Published on: March 12, 2021 | By McCulloch & Miller, PLLC

As loved ones get older, their family often worries about them—both mentally and physically. One particular fear is their loved one being unduly influenced to do something they may not want to do. Seniors tend to be more susceptible to this undue influence because they are more likely to depend on others for daily activities like help with transportation and paying bills. While undue influence may be easy to name, individuals often have difficulty spotting it. Below are common questions and solutions to identifying undue influence and assisting Houston seniors who are in such a situation.

What Situations Increase Vulnerability and Who Can Exert Undue Influence?

While any adult can be a victim of undue influence, there are certain situations that increase a person’s vulnerability—and thus, their likelihood to be exploited. These situations include, but are not limited to, cognitive impairments, illness, isolation, and physical ailments. Because these circumstances increase a person’s dependency—as they need others to help them—it is more likely that an individual will exert undue influence on them.

The Benefits of Having a Professional Trustee for a Texas Estate Plan

Published on: March 9, 2021 | By McCulloch & Miller, PLLC

One major component of the Houston estate planning process is picking a trustee to manage the estate after they have passed away. While it may seem like a simple solution to name a family member, it is not always in the best interest of the person—or their loved ones—to do so. Professional trustees have inherent benefits because their experience ensures the estate plan is properly handled. However, because people do not know what a professional trustee is—and what they actually do—below are answers to common questions about professional trustees and if they are right for a person’s specific estate plan.

What Tasks Must a Trustee Perform?

While it is easy to say that trustees are responsible for managing an estate plan after a person passes away, this does not actually explain a trustee’s responsibilities. A trustee’s responsibilities include safeguarding and distributing assets, filing and paying taxes, resolving beneficiary disputes, and paying any estate expenses. These tasks can often be extremely overwhelming and complicated, especially if a person has never served as a trustee before. Instead, a professional trustee can take care of all of the administrative and technical work, allowing the family members to grieve and not add additional stress to their plate.

Why Joint Tenancy Is Not a Substitution for Creating a Houston Estate Plan

Published on: March 8, 2021 | By McCulloch & Miller, PLLC

Because estate planning is often perceived as a complicated process, Texans assume there are other options that are an acceptable substitute for an estate plan. One such example of this is joint tenancy. Joint tenancy is a legal arrangement in which two or more people own a property together with equal rights. However, joint tenancy on its own has major drawbacks that are often unexpected. Below are answers to common questions about the necessity of a Houston estate plan, and why a joint tenancy is not sufficient.

How Does Joint Tenancy Work?

Joint tenancy is property ownership between two or more parties. The parties come together to make a legally binding agreement through a deed, and the deed then will name the two owners as the joint tenants. While joint tenancy is most often utilized by couples—both married and unmarried—it can also be used by relatives, friends, or even just business associates. Because both parties have a claim to the property, they also share the benefits and downsides—be it mortgage payments, property taxes, or profits after sale. Besides a deed, joint tenancy can also apply to personal and business banking accounts, business assets like real estate, investment properties, and vehicles.

Leaving Stock Through a Texas Estate Plan

Published on: March 1, 2021 | By McCulloch & Miller, PLLC

When people are listing the property and items they will give to loved ones during the Houston estate planning process, stocks and other securities often do not come to mind. A stock is a fractional share representing ownership of a small portion of a corporation. Stocks can be gifted as part of an estate plan and benefit the inheritor if they appreciate in value. Although stocks may seem complicated overall—and the process of gifting them even more so—estate planning attorneys can help to simplify the process. Below are common questions that individuals have about gifting stock and its inherent benefits.

How Do I Leave Someone Shares of Stock After My Death?

For individuals who want to leave loved ones their stock after their passing, they will incorporate this gift into their estate plan. Beyond including this as a part of a person’s will, there is another document that Texans should include in their estate plan. It is called a Transfer on Death Document. This document allows assets—like stocks—to be given to beneficiaries after the person’s death without having to go to court. A person creating a Transfer on Death designation names the beneficiary—the person receiving the stock—as well as which stock the beneficiary will receive and how many shares they will get, if the person is bequeathing the stock to more than one person.