Houston Estate Planning and Elder Law Attorney Blog

Planning for Incapacity through Texas Estate Planning Law

Published on: May 21, 2020 | By McCulloch & Miller, PLLC

Estate planning is the process of preparing and managing a person’s assets and documenting final wishes. Houston estate planning attorneys frequently assist individuals in creating these essential documents. Estate plans typically include wills, financial power of attorney designations, medical directives to physicians and family, medical power of attorney designations, and final wishes. Although many of these documents relate to a person’s wishes after they pass, individuals should also have a plan in place in the event that they become incapacitated.

“Incapacity can happen to anyone, at anytime.”

A person may become incapacitated after they suffer an injury or illness that leaves them unable to make decisions or communicate their wishes. When individuals do not have a comprehensive, binding plan in place, a Houston probate judge may appoint someone to take control of the incapacitated person’s decisions. This person may make personal and medical decisions on behalf of the incapacitated individual. These wishes may be contrary to an individual’s actual desires. Many people may believe that they do not need a plan in place because they own property or assets jointly with a loved one, however, there are many limitations on what the co-owner can do. Further, the co-owner may be subject to many undesirable situations, such as default judgments and civil lawsuits.

The Importance of Creating Texas Advanced Planning Directives

Published on: May 18, 2020 | By McCulloch & Miller, PLLC

Estate planning and advanced directives are a critical step that Texans can take to ensure that their wishes are effectuated if they become incapacitated or pass away unexpectedly. Estate planning is essential for all individuals, despite their wealth or age. Although, in some cases, Texas law provides residents with tools to create these documents on their own, it is vital that individuals consult with a Houston estate planning attorney to make sure that their documents are valid.

In creating Houston advanced care documents, individuals should include both health-related and financial planning directives. The three most essential parts of a person’s health-related advance planning documents are a medical power of attorney designation, directive to physicians (living will), and out-of-hospital do-not-resuscitate (DNR) instructions. These documents will provide doctors, healthcare providers, and family members with guidance on how to proceed with a loved one’s care. They remain in effect unless an individual revokes or changes them.

Medical Power of Attorney (MPOA)

What Happens if Someone Dies Without a Will in Texas?

Published on: May 14, 2020 | By McCulloch & Miller, PLLC

A last will and testament, or more commonly referred to as a “will,” is a legal document that provides a person with the opportunity to decide how their property and other assets will be distributed after their death. Under Texas law, if a person does not have a will, their belongings will be subject to Texas intestacy laws, which may be contrary to the person’s actual wishes. A legally binding will is an effective way to ensure that a person’s last wishes are appropriately effectuated. Fortunately, Houston probate courts typically work efficiently to ensure that wills are quickly validated and accomplished.

In some cases, a simple will is enough to distribute assets and belongings, but Texas allows wills to include trust directives and tax-planning assistance. Wills can also include the appointment of guardians to children and pets, asset distribution, and help people avoid real-estate complications. In cases where a person does not create a legally binding will, Texas law dictates that their assets and possessions pass through intestate succession laws.

Under Texas’ intestacy law, intestate succession depends on the deceased’s surviving family members. These are the most common scenarios:

Issues Texans Face When Using Handwritten and DIY Wills

Published on: May 11, 2020 | By McCulloch & Miller, PLLC

Individuals who are considering drafting a will should consult with a Houston attorney to ensure that their document is legally binding and effectively communicates their wishes. Wills provide representatives and loved ones with crucial guidance on how to name executors, appoint guardians for children and pets, and distribute property after someone dies. Many people fail to create wills or attempt to draft these documents themselves; however, doing so can lead to many issues and conflicts. You should contact an experienced Houston area estate planning attorney to ensure that your final wishes are properly executed.

Each state has specific requirements that a will must comply with to be legally binding. In Texas, wills are valid if the testator is at least 18-years-old, of sound mind, and there were at least two credible witnesses present at the signing. In cases where the will is oral, there must be three credible witnesses. Many Texans believe that drafting a will is sufficient to make it legally binding; however, there are often additional documents and notary signatures that must be executed. Some documents include, but are not limited to, healthcare power of attorney designations, financial power of attorney designations, and disposition of remains and property directives.

Individuals who chose to write their own wills often fail to meet all of the requirements that make a will binding. Wills should include the appropriate language, correct signatures, and account for any property or possessions that people may fight over. Although, do-it-yourself and handwritten wills might be valid, they often create challenges for loved ones as the will passes through probate court.

Texas Ladybird Deeds and Medicaid Planning

Published on: May 7, 2020 | By McCulloch & Miller, PLLC

Claudia “Lady Bird” Johnson is a well-known Texan and regarded by many as one of the first First Ladies of the United States to take an active political role alongside that of the President. However, for Texans, the term Lady Bird can refer to more than the former First Lady, as a “lady bird” deed is a type of Houston estate planning instrument that can be used to avoid probate in certain circumstances.

Probate is the process by which a court formally acknowledges the death of an individual, verifies a decedent’s will, and effectuates the decedent’s wishes as noted in their will. However, the probate process can be both lengthy and costly, and many families take affirmative steps to avoid probate.

A lady bird deed is also called an enhanced life estate deed. To better understand what a lady bird deed is, and whether it will be beneficial in a particular situation, it helps to be familiar with a life estate. A life estate is an arrangement by which the owner of a piece of property (the grantor) reserves the right to use the property during their lifetime. However, upon the grantor’s death, the property will pass to the named beneficiary, or grantee. One of the primary concerns about using life estates is that the grantor cannot sell or mortgage the property once the life estate is in effect.

The Texas Probate Process and How to Avoid It

Published on: May 4, 2020 | By McCulloch & Miller, PLLC

When discussing Houston estate planning, there are likely to be many unfamiliar terms. Among these terms is the concept of “probate.” Probate is the part of the process by which assets are transferred after death, and specifically refers to the validation of a person’s will. However, the probate process is often lengthy and costly, and is also public.

To better conceptualize what probate is, it helps to have an understanding of the basics of Houston estate planning, starting with wills. Quite simply, a will is a document in which someone outlines how they want their property distributed upon their death. Those who pass away without a will are said to have died “intestate.” In such cases, state law will dictate how their property is passed on to their successors. Of course, the Texas intestate laws are generic and not customized to anyone’s individual needs. Thus, those who wish to maintain control over their assets typically create a will.

When someone with a will dies, that person’s will must be presented to the probate court within four years. If a will is not filed within that time, then the state’s intestacy laws will likely be used to distribute the decedent’s assets. However, if a will is timely presented, the probate court will officially acknowledge the person’s death, oversee payment of their remaining debts, and distribute their assets according to the terms of the will.

What are Some Good Estate Planning Ideas in the Pandemic?

Published on: May 1, 2020 | By McCulloch & Miller, PLLC

“The reality of COVID-19 has forced many individuals to address the ‘what if’ scenarios that were previously unthinkable, or at least the situations that no one ever wants to talk about or deal with.”

With the COVID-19 pandemic, many people are looking to execute estate plans they’ve delayed in finalizing and signing. Others are ready to get going on their estate plans that they should’ve started years ago.

Forbes’ recent article entitled “Eight Estate Planning Strategies In A COVID-19 World” lists some things you should know.

What Should I Know about Guardianship?

Published on: April 18, 2020 | By McCulloch & Miller, PLLC

In a perfect world, a child would be raised by its parents. However, this isn’t always possible, and legally enforceable decisions must sometimes be made to name the person who is best positioned to look after a child.

Guardianship is generally only needed when a person is incapable—whether legally or practically—of looking after their own affairs, says VENTS Magazine in the article “Legal Guardianship 101: What You Need to Know.”

Courts have the power to appoint guardians for adults and children. This is usually a person who is unable to make decisions for themselves.

Am I Making One of the Five Common Estate Planning Mistakes?

Published on: April 15, 2020 | By McCulloch & Miller, PLLC

“When is the last time you updated your will? Could your beneficiaries have changed? If you have a trust, did you actually fund it? Is your plan ready for the new SECURE Act? Here are five mistakes you don’t want to make.”

You don’t have to be super-wealthy to see the benefits from a well-prepared estate plan. However, you must make sure the plan is updated regularly, so these kinds of mistakes don’t occur and hurt the people you love most, reports Kiplinger in its article entitled “Is Anything Wrong with Your Estate Plan? Here are 5 Common Mistakes.”

An estate plan contains legal documents that will provide clarity about how you’d like your wishes executed, both during your life and after you die. There are three key documents:

What are the Main Estate Planning Blunders to Avoid?

Published on: April 9, 2020 | By McCulloch & Miller, PLLC

Man thinking on computer
“Maintaining a valid and current estate plan is vitally necessary in order to ensure the efficient and orderly dispersion of assets after a person dies. However, even a small mistake can create huge problems during the settlement process, and in many cases, these errors are impossible for anyone to correct.”

There are a few important mistakes that can make an estate plan defective—most of these can be easily avoided by reviewing your estate plan periodically and keeping it up to date.

Investopedia’s article from a few years ago entitled “5 Ways to Mess Up Estate Planning” lists these common blunders: