Wills & Estate Planning: Wills, Trusts, & Guardianships
Estate Planning and Probate Attorneys in Texas
WHAT WE DO.
We would like to welcome you to our Estate Planning and Litigation Practice area!
This is one of our most personalized areas in the Firm as we focus entirely on the important issues to be addressed in protecting your loved ones after your death. Many of our clients put this off until it is too late leaving critical property issues to be decided by the State of Texas and not their family. Here are the key areas we focus on:
1. ESTATE PLANNING AND PROBATE.
We will discuss your specific plans as to the distribution of your assets and the best way to achieve these critical goals including the drafting of Last Wills & Testament, irrevocable trusts, revocable living trusts, spendthrift trusts, and special needs trusts, among other legal documents. We will make it straight-forward and simple with the eye on implementing the most effective and economical solution for our clients whether they are considering the drafting of a will or trust including service as a Personal Representative, Dependent Administration, Independent Administration, Letters of Testamentary, Muniments of Title, Estate Inventories, Tax Forms, Distribution of Assets, Gun Trusts, Miller Trusts, Power of Attorney, Medical Powers of Attorney, and Asset Protection, among other items.
2. PROBATE PROCEEDINGS.
This includes the array of legal proceedings that our clients face after the death of a loved one. The probate process can be complex and daunting and our job is to navigate the family through the legal maze. There are various options available under Texas Law including swift and streamlined procedures for small estates.
3. PROBATE LITIGATION.
Contested Probate Proceedings cases are unfortunate, but our clients require aggressive and experienced representation. Typically, there is a conflict between the family as to the enforceability of will provisions or attempt to cut someone out. In some instances, clients are faced with a situation where a third party has acted illegally or with undue influence to change the prior terms of a will. All of these situations must be actively confronted to protect our clients’ rights and preserve the original intent of the loved one who passed on. We stand ready to assist during a difficult time with answers to our client’s questions.
4. GUARDIANSHIP PROCEEDINGS.
Guardianship Proceedings are cases where an administrator is appointed by the court to assist a minor or incapacitated person. Guardianship cases can be very complex and emotional for all parties concerned. The key is to acquire the most experienced and caring legal team available to provide immediate and ongoing representation.
5. ELDER LAW.
This is a growing area of the law that protects our clients’ assets in the event they require extended or long-term care. All of us will face these issues at some point in the future whether it is around the corner or decades away. The critical issue is to safeguard your hard-earned assets from being depleted as a pre-condition to receiving Medicare or other payment sources. All of this can be heart-breaking in the absence of planning. A few simple steps put in place can make all the financial difference in the world.
6. ASSET PROTECTION.
Asset Protection is an area of great interest to our clients and includes the preparation of documents and planning to protect your assets from creditor claims. Of course, our advice is always confidential and subject to Attorney-Client protection.
ESTATE PLANNING & PROBATE ROUNDTABLE!
QUESTIONS AND ANSWERS FOR ESTATE PLANNING & PROBATE.
What is a will?
The Last Will & Testament or Will is a legal document that determines how your assets are to be distributed when you die. It is essential that estate clients follow the requirements under Texas Law to assure that their Will is valid and enforceable. An error in the preparation of a Will could lead to the instrument being invalidated or challenged in court. The job of your estate attorney is to identify all of the assets to be covered by the Will and to draft the proper and enforceable clauses to make sure that the property is distributed as intended by the client. The language must be clear and unambiguous and compliant with Texas Law.
Am I required to appoint an executor of my will?
Yes. An executor must be designated and appointed to carry out the duties under the will and provision made for the appointment of a successor executor in the event such individual predeceases the client or decides not to carry out responsibilities.
What happens if I die without a will?
If you fail to draft a will, Texas Law will decide who receives a distribution of your assets, not you. This is known as intestate law and can be highly problematic as your intended beneficiaries may not receive any distribution under Texas Law or a substantial reduction. Critically, the legal costs of dealing with distribution intestate can be substantial causing unnecessary expense, delay, and frustration. It is not uncommon for family members or third parties to fight over their entitlement to assets as nothing is spelled out in a prior document. Invariably, these cases are difficult and could have been easily avoided in the first instance by having a law firm draft a Will. It is that simple.
Are my Assets Subject to Taxation?
This is an issue that is often overlooked by Estate attorneys who do not practice in the area of Estate Tax Law. Our job is to provide concrete and common sense advice in the tax area so that clients can make informed decisions and minimize tax exposure. Our clients are advised of tax implications from the very beginning of our relationship so there are no surprises. We hate legal surprises! Don’t you?
How Long Will a Will Be Valid?
That’s an easy one. Indefinitely – so long as you don’t revoke or amend it.
Can I change my Will?
Absolutely – and clients do this quite often. However, it must be done correctly so that the changes are enforceable and you avoid the problematic situation where multiple wills have been executed. The key is to revise seamlessly so that there are no legal questions as to which provisions will be enforceable.
How does the Probate Process Work?
The presentation of the Will to the court in Dallas, Austin, Houston, Lubbock, Amarillo, Midland, Odessa, Abilene, and Wichita Falls starts the probate process which must be followed under Texas Law. The Moster Law Firm probates Wills in courts throughout Texas with an emphasis in Lubbock, Plainview, Midland, Odessa, Amarillo, Abilene, Austin, Dallas, Wichita Falls, and Houston. The requirements for probating a will are strict and must be followed without exception including proper notice to parties, pleadings filed with the Probate Court, inventory list, the appointment of a trustee, and other items. Keep in mind that the property of the decedent cannot be accessed until the probate process is completed as all assets are subject to the jurisdiction of the probate court. The only exception are assets that are not included in the Will, for example, insurance policies, bank accounts, etc. The Firm will provide advice to clients on this issue which can seem confusing to non-lawyers.
In situations where the estate is small with minimal assets, Texas Law allows for an expedited process known as a muniment of title. To qualify, the party must show that there are no outstanding debts and that the total assets are not substantial.
What Claims are raised in Probate Litigation?
Unfortunately, conflicts between family members and beneficiaries occur frequently during the probate process which can cause complications, costs, and heartburn – to say the least. Typically, a family member challenges the distribution bequest in the Will and hires an attorney to champion his or her cause. Lawyers for the disgruntled beneficiary can raise a battery of claims which could reduce or eliminate a client’s right to distribution unless defended in Court.
What Claims can be raised to challenge a Will?
The challenging party can argue that the Will is not enforceable because an error was made in the preparation of the document. If so, Texas Law, not the Will itself, would determine who gets what. Other arguments include undue influence, incapacity, or the presence of other documents which purport to be valid modifications of the Will itself.
What is an undue influence when raised as a claim?
This relates to pressure or control exerted by a beneficiary to force distribution of assets under the Will. Typically, the testator is impaired or aged and relies on a third party such as a caregiver for daily support and services. The third party then exploits this relationship for personal gain. This abuse of power is known as undue influence.
Can the court set aside a bequest that resulted from undue influence?
Yes. All of that is part of the litigation process and will require counsel to file the appropriate papers, obtain a hearing date, and put on evidence.
What is incapacity when raised as a claim?
A testator must have the mental capacity to write a Will. The legal standard, however, is exceedingly easy to meet and simply requires that the testator have a basic understanding of the scope of her assets and how the property is to be distributed. Incapacity becomes a major issue when the testator was laboring under a severe mental illness or impairment when the Will was prepared, i.e., Alzheimer, Dementia, etc.
Can the court determine that incapacity is not an issue?
Absolutely. The process is the same as would apply to undue influence above described.
How do Trusts operate?
A trust is a legal relationship where the property is held for the benefit of another. The creator of the Trust (settlor) appoints a Trustee who holds the property for the benefit of a third party (beneficiary). Many of our clients retain the Firm to advise them on the type of trust to be formed and the drafting of the trust instrument. The trust document provides for the distribution of assets while the owner of the trust (settlor) is alive or after she passes. Although a trust is legally distinct from a will, it can be created by the will itself, or constitute a separate document that stand apart from the will.
How is a Trust Different than a Will?
The Trust can be implemented while the settlor is alive and also provide for the specialized need to beneficiaries such as minor children or individuals with disabilities.
Can I Revoke a Trust?
That depends on the type of trust which is formed. Irrevocable trusts are set up for the benefit of a third party and cannot be revoked or terminated once formed by the settlor. The benefit of irrevocable trusts is to prevent creditors from attaching the assets with respect to a debt that might be owed by the settlor. These are known as spendthrift trusts.
Can a Trust be Revised?
Yes – unless it is set up as a spendthrift trust. The settlor always has the right to revoke, terminate, or add new terms to the trust instrument.
Do I need a Trustee?
Yes. The Trustee is a critical component of the trust as he is responsible for managing the trust and implementing its provisions.
Can a bank serve as a Trustee?
Yes. It is not required that a trustee be a living person.
What is the advantage of using a bank as a trustee Will?
This is important when the Trust is intended to operate over a long period of time which can exceed the lifespan of an individual. The bank serves as an institutional trustee which can perform estate functions over extended periods and lifetimes of the beneficiaries.
Does a Trustee get paid?
Yes. Most trusts have provisions that allow the Trustee to be paid reasonable compensation for services.
Can a beneficiary attempt to get more than her share?
That depends on how the trust was drafted. The typical answer is “No” unless the language of the Trust gives additional rights to the beneficiary.
Does a Trust Terminate?
Yes. Trusts include terms that govern when they end – typically upon the beneficiaries obtaining majority age or some other defined event.
Is a Trust Probated when the Settlor Dies?
No – and that’s a huge advantage. The Trust stands legally apart from the will and the courts have no legal jurisdiction over the enforcement of the provisions. The avoidance of probate means that the beneficiaries have immediate access to the Trust assets and avoid the substantial costs of probating an estate.
How do Medical Powers of Attorney, Directives, and Powers of Attorney operate?
Clients typically consider the drafting of medical powers of attorney and Directives in anticipation of surgery or as a result of an illness. This document delegates legal responsibility to a third party, typically a family member, to make medical decisions upon the incapacitation of the party. The medical powers of attorney and directives empower the third party to make medical decisions that can have a direct bearing on the life or death of a patient.
What happens if I don’t have a medical power of attorney?
This has been tragically exemplified in the media and courts. In the typical situation, the affected party is on life support and is unable to make medical decisions. Unfortunately, family members are not authorized to make decisions and conflicts can arise between family members and even the government as to whether the patient should be kept alive. Never leave your medical life and death decisions to institutions or the courts.
Can I revoke a medical power of attorney?
Yes. Whenever you want. However, if you are already medically incapacitated, there may be a legal objection to any termination or modification of the prior medical power of attorney.
What Kind of Questions do Clients typically have in the area of Estate Planning?
Questions and issues presented to the Moster Law Firm are as varied as our clients. Here is a brief sampling of client questions that are frequently encountered (Hint: We have the answers!!)
Can I disinherit a family member?
Can I provide for unequal distribution to family members?
Can I designate a family member or friend to distribute personal property?
What is the best way to distribute my gun collection?
Can I prevent my children from contesting the will after I pass and avoid a family feud?
Can I create trust within the body of the Will?
How do I lower the costs of administration of my Will after I die?
Are Wills necessary for small estates?
What should I do about insurance policies and retirement benefits?
Should I add beneficiary names to personal bank accounts?
Can I keep my executed Will sealed by the Court so it cannot be viewed?
What tax considerations should I be aware of in preparing a Will or trust?
What is the difference between a Will and a living trust?
What is a testamentary trust?
What is the best way to provide for the education of minor children or grandchildren?
Can I require my grandkids to attend a particular college (hint – “Guns Up”)?
Is there a way to reduce tax liability with regard to the distribution of my assets?
Can I revoke a Will once it is set up?
How easily can I revise my Will?
Is my Will enforceable in other states?
How does my Will affect my ownership in a Limited Liability Company or Corporation?
Are all Wills probated?
Is there a process to expedite probate at a lower cost?
Can I require that particular property be sold after I die?
What happens if I die without a will?
DEATH DOESN’T TAKE A HOLIDAY*
*EVERYTHING YOU WANTED TO KNOW ABOUT ESTATE PLANNING AND PROBATE BUT WERE AFRAID TO ASK
One of my favorite movies, “Death Takes a Holiday” is a fantasy about the angel of death actually taking an extended vacation from his timeless and deadly vocation. Unfortunately, “death day off” is followed by a backlog of people who need to die for various reasons and can no longer make the journey to heaven. Not a good result.
We all get that death is a certainty but don’t want to deal with the consequences. I certainly understand that it is not a favorite topic of conversation and a bad way to start off any Monday. All of us, even those with considerable gray hair, invariably put off the big reckoning to some distant time – at least not this week – hopefully.
Unfortunately, ignoring the legal consequences of your death can be devasting to your loved ones. Here’s why.
1. Bad Idea to Die Without a Will or Intestate.
You would be surprised by the number of people who never get around to drafting a will in Texas. Surprisingly, many of these people have substantial assets but put off this task for someday in the future which never comes. If you die without a will the legal consequences can be devastating as Texas State Law, not your specific wishes, will determine where your assets go. For example, if you told a specific person that they were to receive assets on your death but did not put it in an enforceable will, that person would not inherit your assets. It gets worse as loved ones may not be taken care of or to the contrary, the beneficiary is someone you despise or wrote off as a family member or friend years ago.
On the legal front, dying without a will is called dying intestate. If this happens in your situation, your family will have to hire an attorney to handle the legal matters because a will was never drafted. This process involves the filing of heirship court papers and can be complicated and expensive.
Recommendation: Have an experienced attorney draft a will for you or a family member and the sooner the better. Don’t put it off. If you need a will drafted in Lubbock, Midland, Odessa, Amarillo, Abilene, Wichita Falls, Austin, Dallas, and Houston give us a call. We look forward to guiding you through the estate planning process.
2. To Probate or Not Probate.
Probate refers to the legal process of enforcing the provisions of a will after you die. There is a step-by-step process in Texas that is confusing to non-lawyers and made even worse because of the emotional circumstances dealing with the passing of a loved one. Legal forms need to be prepared, assets inventoried, and papers filed with your local court. Typically, this is not a complicated or expensive process but can turn into a major problem if not addressed immediately by experienced attorneys.
Recommendation: Hire experienced legal counsel to navigate through the probate process.
3. To Fight or Not to Fight – Probate Litigation.
It’s typically not good news. You have been cut out of a will improperly or a family member is fighting your right to inherit assets. Usually, someone has been cut out and the trouble starts with the listing of the obituary and the conclusion of the funeral. In these situations, you need experienced counsel to advise you ASAP as to your legal rights and whether it makes sense to fight.
4. Recommendation: Get excellent legal counsel and a recommendation you can count on for probate litigation.
5. Avoiding Probate.
We advise clients on how to pass their assets on to their beneficiaries without going through probate at all or even a court process. This can be accomplished with sufficient advance planning through the drafting of a trust or other documents.
Recommendation: Whenever possible, avoid the courthouse.
6. Should I have a Trust Drafted?
This is a very important question that is overlooked by most people. A trust is a legal document that will provide for the transfer of your assets upon death without the necessity of a will and, therefore, avoid probate. It can thus save you significant legal expenses down the line, protect your assets from attack by creditors, and simplify the transfer of your assets to your loved ones.
Trusts can also be set up for specialized needs, for example, a child with special needs so that he or she is financially protected if you should pass.
7. I hit 65 and am still working. Do I need any special estate planning?
Welcome to the world of Elder Law. This refers to legal planning to protect your assets in the event you become incapacitated or need long-term care. Without proper planning, you cannot claim Medicare to cover the huge financial cost of extended care unless your personal assets are used up first. This is a horrible situation as is often not anticipated. The practical effect is that with the huge cost of nursing care and medical expenses, you can go through tens of thousands of dollars in a very short time and deplete all of your assets before any Medicare Benefits can be claimed. All of this can be anticipated and planned for by having an experienced law firm draft a specialized trust which will protect your assets while allowing you to draw on Medicare Benefits. Deadlines apply so it is important to get legal advice rapidly and not wait for life’s inevitable problems to occur.