Houston Estate Planning and Elder Law Attorney Blog

What Should You Bring When You Meet with Your Estate Planning Attorney?

Published on: December 2, 2023 | By Thomas W. McCulloch

If you are preparing for an initial meeting with an estate planning attorney, you are taking a great first step that will help protect your loved ones down the road. If it is your first meeting, though, you might have questions about what the meeting will entail or what you should do to prepare. On today’s blog, we walk you through what you should bring when you meet with an estate planning attorney, so that you can be as prepared as possible and get the most out of your time together.

Financial Documents

The first and most important set of documents to bring is your set of financial documents. These include mortgage documents, car titles, tax returns, and rental agreements. While you don’t have to necessarily bring bank account statements, you should have a good idea of where those accounts stand so that you can provide that information to the attorney. Many firms, including McCulloch & Miller, will send you a family document checklist that you can use to begin organizing these financial documents before you come in for your meeting.

Non-Financial Documents

This second category of documents is also important. If you have papers relating to a divorce, a marriage, an adoption, or a custody case, these can be critical for the estate planning attorney to keep in mind. Additionally, if you have done any type of estate planning in the past, bringing those documents will be helpful for your estate planning attorney to see.

Are Stepchildren Entitled to Inherit Under a Texas Will?

Published on: November 30, 2023 | By Thomas W. McCulloch

When parents begin their estate planning processes, they have many variables to consider, and it is always difficult to make decisions about which assets should go where. One variable that many of our clients want to think through is the possible addition of stepchildren to a will or estate plan. On today’s blog, we cover whether or not stepchildren are entitled to inherit the money and property that their stepparents leave behind.

In short, stepchildren only inherit a stepparent’s assets when those stepchildren are explicitly included in the stepparent’s will. Even if the stepparent lived with and cared for the stepchildren just as they would their own children, under the law, these stepchildren do not have automatic access to their stepparents’ assets. The decedent’s estate documents must lay out exactly which stepchildren inherit, as well as how much they are to inherit.

Similarly, if you have biological children that live elsewhere, those children might have automatic rights when you die, whether or not they are actively and currently involved in your life. For example, if you die without a will, the probate court could easily decide to distribute your assets to sons and daughters from which you are estranged. In the legal world of estate planning, it does not matter how close or distant you are from your biological children; they might have rights to your assets unless you stipulate otherwise in your will.

What is an Application to Determine Heirship in Texas?

Published on: November 30, 2023 | By David W. Miller

At times, navigating probate is a relatively straightforward process. Other times, though, the process can be messy – especially when it is unclear who an individual’s heirs are and who should receive the individual’s property. In today’s blog post, we discuss one way to navigate this issue – namely, by filing an application to determine heirship.

Importantly, an application to determine heirship always involves the probate court, and it always involves a hearing before the court. The purpose of the hearing is to determine who, exactly, should receive a decedent’s property. The hearing can take place either when a decedent’s estate has not been administered (as long as there is some property in Texas) or when property in Texas was left out of a decedent’s will.

What Happens During the Hearing?

When this kind of hearing takes place, the court begins by figuring out if the property at issue is separate property, meaning the decedent was the sole owner, or community property, meaning there were others involved. Once it has made this determination, the court looks at the Texas Estates Code to determine who should inherit the property.

Are Adopted Children Entitled to Inherit Under a Texas Will?

Published on: November 22, 2023 | By Thomas W. McCulloch

For parents that have adopted children, it is important to understand how the law understands adopted children to be part of their families. In the estate planning process, our clients that have adopted children often want to make sure that their kids are well taken care of after their passing. Today, we cover whether adopted children are able to inherit once their parents die.

Under the law in Texas (specifically, Texas Estates Code Section 201.054), adopted children are considered the children of their adopted parents. Therefore, even if a child is adopted, that child inherits as if he or she were the biological child of his or her parents. This comports with adoption laws nationwide, which generally consider an adoptive child to have the exact same rights and privileges as a biological child.

Importantly, this section applies to children adopted through formal procedures; thus, if you have “informally” adopted a child, or if you consider a child to be like your adopted child, this section will not apply to you. The State of Texas must recognize the familial relationship in order for this provision to treat you and your adopted children as though you are biologically related. Understanding this is crucial to avoid one of the more common estate planning mistake among adoptive families.

How to Demand an Accounting from an Executor in Texas

Published on: November 22, 2023 | By David W. Miller

If you are either a beneficiary or a possible beneficiary of a decedent’s estate, and if you have questions about that estate, it is only right that you are provided the answers you need. Sometimes, estate executors can be hesitant to provide information, and if you suspect negligence or wrongdoing, time is of the essence. Fortunately, in Texas, there is a way to demand an accounting (or a summary) of the estate happenings from the executor that is in charge of the estate.

Section 404.001 of the Texas Estates Code

In the Texas Estates Code, legislators provided a clear solution to the problem of not having enough information from an estate’s executor. According to this section of the Code, any interested parties in an estate have the right to demand an accounting from the executor. These interested parties could be beneficiaries, possible beneficiaries, debtors, or creditors.

This provision of the Code can be used as long as 15 months have passed since the estate executor was appointed. Once an individual asks for the accounting under this section of the Code, the executor has 60 days to comply and provide the individual with the relevant documentation.

Transferring Real Estate in Texas Outside of Probate

Published on: November 15, 2023 | By McCulloch & Miller, PLLC

Passing real estate to beneficiaries can be more complicated than you might think. If you own property, there are several steps you must take in order to ensure your property passes down to your chosen beneficiaries. In general, real estate will go through the probate process, but there are a couple of ways to avoid probate if you are looking into transferring real estate as a part of your personal estate plan.

Option One: Transfer on Death Deeds

The first option for those who wish to avoid probate when transferring real estate is called the transfer on death deed. This deed allows a property owner to transfer his or her interest immediately upon death to whoever he or she names in the deed. The deed has to meet certain procedural requirements, like being in writing and being signed in the presence of a notary. Without these requirements met, the court might end up having the property pass through probate despite the property owner’s earnest attempt at avoiding it.

Option Two: Life Estate Deed

A life estate deed looks slightly different than a transfer on death deed. It gives legal title to the chosen beneficiary during the property owner’s lifetime. While the legal title no longer belongs to the original owner under this kind of deed, the owner does maintain the right to live on the property during his or her lifetime. This option can be a nice middle ground for estate planners, in that it makes the inheriting process easier for beneficiaries while still allowing them the benefit of residing on the land during their lifetime.

Can a Small Estate Affidavit Eliminate the Need for Probate?

Published on: November 15, 2023 | By David W. Miller

woman retirement risks and estate planning

In Texas, it is a general requirement that a decedent’s estate plan must go through probate before beneficiaries inherit the property, assets, or debts that their loved one left behind. There are ways to avoid probate, however – some of which we have focused on in this blog. Avoiding probate is an important goal for many families, because probate can be both costly and time-consuming. For those Texans whose estates qualify as a “small estate”, the probate process can be greatly simplified, saving everyone time, money, and resources during a difficult time.

What is a Small Estate Affidavit?

In Texas, there are several requirements that an individual must meet before filing a small estate affidavit. The person’s assets, first and foremost, must add up to $75,000 or less (not including certain exempt property). The person must have died without a will, and the person’s assets must be greater than his or her debts. A court must approve a person’s small estate affidavit after he or she files it, allowing the court to review the forms and make sure everything is above board.

What Are the Benefits of Filing a Small Estate Affidavit?

If you file a small estate affidavit, you essentially communicate to the probate court that the estate in question does not need to go through all of the steps that other, perhaps more complex, estates must go through. Once you file, you may or may not have to appear in probate court for a hearing. Some counties will approve the affidavit without a hearing, and others will require the filer to come in and speak with the judge.

Estate Planning for Young Professionals: What You Need to Know

Published on: October 30, 2023 | By McCulloch & Miller, PLLC

Estate planning is an essential part of any adult’s financial future. A common misconception, however, is that estate planning is only for older individuals. In reality, it is a process that all adults, no matter their age, should consider. At McCulloch & Miller, we speak to many young professionals that want to develop a plan for their assets and their debts; our biggest piece of advice for these clients is that they get started on their own estate planning journeys as soon as they possibly can.

Reasons to Begin Estate Planning

Young professionals might think that since they have not yet built up the assets they hope to acquire as older adults, they do not have any reason to develop an estate plan. However, generating an income, starting a family, purchasing a home, and acquiring debt are all reasons to speak with an attorney to start putting together an estate plan.

What You Need to Know About Probating a Will in Texas

Published on: October 30, 2023 | By David W. Miller

There is so much about probating a will that can be difficult to figure out, and without the right information at your fingertips, it can be easy to let parts of the process fall through the cracks. If you have a loved one that has recently passed and you need to make sure his or her will goes through probate, you want to make sure you leave no stone uncovered. By working diligently, you can finish up probate as efficiently and thoroughly as possible, enabling yourself to move forward with your life after the process is complete.

How Do I Begin Probating a Will?

If your loved one has passed, and that person did leave a will, the first thing you will have to do is file an application for probate with the court. Importantly, there are different probate courts in Texas, and you will want to make sure you file the application with the court in your area (i.e., your jurisdiction). As a general rule, loved ones have four years from a decedent’s death to file an application for probate.

What Will the Probate Court Require Before Approving a Will?

The probate court will first require you to wait for a period of time so that it can provide notice to anyone who might think he or she has a right to the decedent’s assets. After this period of time (typically two weeks), the court will hold a hearing. At this hearing, the judge will decide whether the decedent’s will is valid.

Texas Probate FAQs

Published on: October 23, 2023 | By Thomas W. McCulloch

In Texas, going through probate can either be relatively simple or incredibly complex, depending on the decedent’s assets, the potential beneficiaries involved, and the estate documents that the decedent left behind. On today’s blog, we cover several frequently asked questions that our clients bring to the table, in the hopes that we can make the process a bit more straightforward for you.

What is Probate?

Probate is the administration of a decedent’s will or estate documents. In general, when a person dies, that person’s will must be approved by a probate court before the beneficiaries can have access to his or her assets. In Texas, the probate process can take anywhere from a few months to a couple of years.

Is Probate Mandatory?

In Texas, every individual’s estate must pass through probate, although there are some ways to avoid probate altogether. For example, by creating a trust or by acquiring assets jointly with another person, you may be able to avoid having your assets go through the probate court. Every person’s estate is unique, and the possibilities for avoiding probate depend heavily on the nature and complexity of the assets involved.