Houston Estate Planning and Elder Law Attorney Blog

When a Small Estate Affidavit Makes Sense for Texans

Published on: November 16, 2024 | By McCulloch & Miller, PLLC

Some individuals in Texas qualify for what is called a “small estate affidavit,” which simplifies the probate process and serves as an efficient way to pass assets to heirs. When does the small estate affidavit make sense for Texans? What are the requirements? Today’s blog summarizes some of the basics regarding the small estate affidavit, but as always, with specific questions and concerns, you should speak with a Houston estate planning attorney that can look at your circumstances and tailor your legal advice accordingly.

What is the Small Estate Affidavit?

The small estate affidavit is a sworn statement that settles a decedent’s estate. It must be signed by all of the decedent’s heirs (or otherwise signed by someone with legal authority to sign on the heirs’ behalf).

What are the Requirements for the Small Estate Affidavit?

Individuals in Texas are able to use a small estate affidavit only if the decedent died without a will and if that decedent left less than $75,000 in property behind. The $75,000 value does not include the decedent’s home and some other probate-exempt property. Additionally, the decedent must not have left behind more debts than assets, and he or she must not have owned real property in addition to his or her home.

How Long Does Probate Take? Factors That Affect Probate Timelines

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

When clients or potential clients ask us how long the probate process typically takes in Texas, we always say that “it depends.” This answer can be frustrating, but there is unfortunately no cookie cutter answer to this common question. As we have described in past blogs, probate is the process through which a court authenticates and approves a decedent’s will, which allows the decedent’s beneficiaries to then inherit from the will. Probate can take anywhere from three months to one year from the date of filing (sometimes longer, in rare cases). There are several key factors that affect probate timelines in Texas.

Estate Planning Documents

Does the decedent have a will, trust, or other estate planning document in place? Is it thorough, detail oriented, and valid? If the court can quickly 1) identify the decedent’s estate plan and 2) confirm that the plan is legally valid, the beginning of probate can go pretty quickly. Sometimes, though, decedents die without any estate plan at all. Other times, they die with estate plans that are not up to standard and are difficult for the court to authenticate. Incomplete estate planning documents can delay the probate process significantly.

Disputes from Third Parties

If a beneficiary or other third party decides to dispute the validity of the will, this elongates probate. Sometimes, individuals that were left out of the will tend to argue before the court that the decedent fraudulently or mistakenly left them out as a beneficiary. It takes time for the court to consider these arguments and determine if they have merit.

What You Need to Know About Muniment of Title in Texas

Published on: November 9, 2024 | By Thomas W. McCulloch

What You Need to Know About Muniment of Title in Texas

If one of your loved ones has recently passed, and that loved one died both with a will and without any debts, you might be able to probate your loved one’s estate through Muniment of Title. Muniment of Title is a tool that shortens the time that probate typically takes, and it allows for a more efficient and cost-effective solution for beneficiaries. There are, however, certain things to keep in mind if you are wondering whether Muniment of Title might be right for you.

Requirements for Muniment of Title

As mentioned, for a person’s estate to qualify for Muniment of Title, the person must have died both with a will and without any debts. Thirdly, the person must not have applied for Medicaid benefits at any point in his or her lifetime. The applicant (typically an heir) for Muniment of Title must be able to testify to these three facts, both in written and oral form.

The Process for Muniment of Title

Once an applicant determines that his or her loved one’s estate meets these requirements, the applicant submits the required documentation to the court. Although the process is relatively straightforward, we recommend having a Houston estate planning attorney look over the paperwork to make sure everything is procedurally correct before submitting. Once the court receives and approves the will, the court will post notice for ten days, advising the public that it will be holding a hearing on the decedent’s estate.

Top Mistakes to Avoid During Texas Probate Administration

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

Probate is a pain for most involved parties. It entails court filings, hearings, and fees, and it can take longer than many people want to wait. At the same time, probate is a necessary hurdle that allows beneficiaries to access the assets that their loved one left behind. Sometimes, though, estate executors can unintentionally prolong the probate process. On today’s blog, we cover a few basic mistakes that you should avoid in order to keep probate administration running as smoothly as possible.

Mistake # Failure to Keep Up with Deadlines

The first and most important tip for probate that we offer for probate administration is to write down key deadlines and avoid missing them. In Texas, estate executors have four years from the testator’s death to file his or her will with the probate court. If you begin the process four years and one day after a loved one’s death, the court will be unlikely to accept the estate plan for filing. Even after probate begins, there are important filing deadlines that you must keep in mind in order to ensure you comply with the probate court’s orders.

Mistake #2: Failure to Secure the Decedent’s Assets

Once a testator dies, the estate executor’s job is to quickly and efficiently secure all of that person’s assets. These assets could include bank accounts, investment accounts, stocks, real property, or even sentimental items in the individual’s home. No matter the kind of property, the executor’s job is to make sure the assets are safe from third parties. Failing to property secure assets could lead to confusion down the road when money or property is not where the testator originally left it. This could, in turn, significantly delay or confuse the probate process.

Is Creating a DIY Will a Good Idea?

Published on: October 31, 2024 | By David W. Miller

In this day and age, it can be tempting to use technology to bypass legal advice. Many individuals, for example, tell us that they have considered creating a “DIY will” online instead of consulting a Houston estate planning attorney to undergo the process. Is this a good idea? At McCulloch & Miller, we always offer the following advice: a DIY will works…until it doesn’t work.

What is a DIY Will?

A DIY will is a “do it yourself” will or estate planning document that you can draw up online. Many online tools will have you input your basic information and then proceed to provide you with a will. DIY wills can also take the form of handwritten or typed estate planning documents that you write without consulting an attorney. Many people, for example, remember reading in the news about Aretha Franklin’s infamous handwritten will that her family members found in her couch after her passing.

What are the Possible Issues?

At our firm, we see three main issues that pop up with DIY wills. First: the will might not actually be valid. In order for a probate court to approve the will and allow beneficiaries to inherit a decedent’s assets, the will must be executed properly, self-proving, and written down. Many DIY wills do not meet these basic elements.

Leaving Money to a Child Who Isn’t Financially Savvy

Published on: October 28, 2024 | By David W. Miller

Leaving Money to a Child Who Isn’t Financially Savvy

Many of our clients are interested in leaving money to their children when they pass. For some clients, though, there is a question about what to do when their child is not financially savvy. Do they leave unrestricted assets for the child anyway? Are there tools they can use to restrict the funds? Today, we review the basics of what you can do to set your child up for financial success even if he or she is not financially savvy. As always, for specific advice tailored to your circumstances, contact a Houston estate planning attorney you can trust.

Establishing a Trust

For some children, it works well to give unrestricted access to assets in a will or estate plan. If you do not want to go that route, however, many clients choose to leave their assets in a trust. Establishing a trust offers a level of protection for the assets you are leaving behind.

You could, as part of this process, designate a trusted individual as the trustee, and you could establish protocols for how often (and for what purpose) your child could access money from the trust. The trust could be established for educational purposes, a wedding fund, yearly travel, or housing costs. You could also implement distribution triggers as part of the trust, which would allow your child to access funds once he or she reaches certain life stages (for example, celebrating a specific birthday or finishing school).

Who Inherits a Texas Estate if There is No Will, and Why Does It Matter?

Published on: October 25, 2024 | By Thomas W. McCulloch

As our clients know, we strongly recommend that every individual in Texas takes the time to draft, write, and execute a will. The benefits are too many to count: for example, wills and estate plans help you make decisions about your assets; they allow for easy transfer of assets to loved ones; they help your family avoid conflict down the road; and they ensure that you are thinking about your loved ones’ long term futures in a sensible and legally prudent way. For those without a will, though, the state of Texas decides who will inherit the decedent’s estate. Today’s blog post reviews who inherits a decedent’s estate in Texas when that decedent dies without putting his wishes in a will.

Key Terms: Intestacy and Laws of Intestate Succession

“Intestacy” by definition, is the state of dying without a will. In Texas, the “laws of intestate succession” dictate to inherits a person’s assets if that person dies without a will. Note that these laws do not apply to beneficiaries who know that a will exists but that disagree with the contents of the will. These laws are only for those who die without any kind of valid will.

In Texas, laws of intestate succession say that if a married person dies without a will, one-third of his assets go to his spouse and two-thirds of the assets go to his children. If an unmarried person dies without a will, the assets go first to the decedent’s children, then to his parents. Next in line are the decedent’s siblings, then his grandparents.

Are Beneficiary Designations Enough in a Texas Estate Plan?

Published on: October 21, 2024 | By Thomas W. McCulloch

Several weeks ago on our blog, we discussed the importance of beneficiary designations and how they relate to estate planning. Is it true, though, that beneficiary designations alone can create a comprehensive estate plan? The answer, unsurprisingly, is no. But what else does an estate plan require? And how can you tell what should be listed under a beneficiary designation vs. what should be included in other provisions of the estate plan?

What is a Beneficiary Designation?

By way of review, a beneficiary designation is the act of naming an individual who will inherit a part of the designator’s estate. Beneficiary designations apply to several kinds of financial projects, including life insurance policies, retirement accounts, and financial accounts. Importantly, beneficiary designations do not apply to many other kinds of assets.

What Else is Needed in an Estate Plan Besides Beneficiary Designations?

Because the beneficiary designation applies only to a subset of assets, it is important to utilize another tool. such as a will or trust, when drafting your estate plan. Wills, for example, cover all of your assets, and trusts can help you avoid probate while still passing money and property onto your loved ones. In combination with at least one of these tools, the beneficiary designation helps your heirs understand how you intend to distribute the assets available to you. It is wise to always keep an eye on your beneficiary designations, in case your plans or priorities change down the line.

Three Scenarios When You May Need a Power of Attorney

Published on: October 14, 2024 | By David W. Miller

woman retirement risks and estate planning

By definition, power of attorney is a legal document that gives one individual authorization to work on another individual’s behalf. This authorization can extend to financial decisions, medical decisions, or (if the document provides for it) all decisions pertaining to a person’s wellbeing. On today’s blog, we review three situations in which you may need a power of attorney, as well as why it is important to include in any basic will or estate plan.

Scenario #1: You Become Incapacitated and Need to Make Medical Decisions

If you become physically incapacitated and you are unable to make decisions on your own behalf, someone else will have to step in for you. Without a power of attorney, any person (including a spouse) would have to go through a court to gain explicit permission to make decisions for you. By executing a power of attorney, though, you can name who you would like to decide things about your health such as whether doctors should resuscitate you, what kind of medicine you want to receive, and how long you would want to exist in a vegetative state. While these situations are often unpleasant to think about, it is important to plan ahead of time for their possible occurrence.

Importantly, this kind of power of attorney only kicks in when you are truly incapacitated, i.e. you are unable to make any decisions at all. It does not apply when all that is happening is that the people in your life disagree with the decisions you are making.

A Primer on Long-Term Care for 2024/2025

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

As time goes on, long-term care gets more and more costly for Americans. Unfortunately, it is all too common that we have clients come to us, worried about how they will pay for the long-term care facility they might eventually need. Today, we review the basics of what you need to know in this day and age about planning for long term care. As always, with more specific questions, speak with a Houston estate planning attorney that can help you figure out the best path forward for you.

Start Your Planning Early!

We cannot emphasize this point enough: plan early and often for your long-term care needs. If you are wondering: is now too early to start saving for my old age? The answer is, definitely not! With rising prices and an uncertain economy, it is more important than ever to begin thinking now (no matter how old you are) about how you might pay for your long-term care.

Think Through Ways to Fund Your Long-Term Care

The basic options are as follows for funding your long-term care: you can pay privately, electing to pay a nursing facility out of pocket. This is, of course, the most expensive option, but it also provides for maximum flexibility. Secondly, you can pay with some kind of long-term care insurance. This means that you need to get a policy in place early, which can be expensive and requires planning far in advance. Thirdly, can access Medicaid or other public benefits to pay for your long-term care. To access Medicaid, you need to position your assets in a way that allows you to qualify for this government funding – again, this can require careful planning and expert advice.