Dictating how your assets should be distributed upon your passing is extremely important if you want a say in who gets your money and how much they will receive. Estate planning becomes even more important when you have children because it can indicate who will be the children’s guardians if they are minors. Estate plans can also ensure that someone trustworthy manages the children’s money while they are minors.
When creating an estate plan, you must consider your circumstances as they are today and not base the plan on the assumption that you will not pass for years. For example, if you have a minor child, you need to consider what you want to happen if you pass away while they are still a minor because, under Texas law, they cannot control assets until they are at least 18 years old.
There are a variety of ways that money can be left to your children, including wills, trusts, or by naming them beneficiaries of retirement plans, life insurance, and 529 plans. The best ways to leave your children money are through estate planning tools, such as wills and trusts.
Wills
A will is a legal document laying out how someone’s assets will be distributed upon death. If you have minor children, you can also name one or more people as the child’s guardian if you pass away while they are still minors. Generally, while the child is a minor, their guardian will control the child’s money unless another person is named to manage the minor’s money until they reach the age of majority or an agreement set out in the will, whichever is later.
For a will to be valid, you must sign it at the end of the document in the presence of two witnesses. They will also sign the document certifying that the testator voluntarily signed the document in their presence. A will has no legal effect until it is probated in the court of appropriate jurisdiction, which is usually the probate court in the county where you live at the time of your death.
Trusts
A trust takes assets out of your name and places them under a trust agreement. So, for example, if you own a house, instead of it being in your name, you will deed it to your trust. The party holding and managing the trust is known as a trustee and can be you until death. At that point, a successor trustee will become the primary trustee.
Trusts allow individuals to avoid probate because there is no property in the deceased’s name. As a result, children will have access to the money sooner than if it were left through a will. In addition, the trust can outline how the trustee should distribute the money, meaning you can direct trustees to pay your children’s expenses or cash distributions, regardless of age.
Estate planning tools like wills and trusts are the best options for leaving money to your children because you can outline how and when your children will receive the money. If the child is a minor, you can even dictate how they can spend the money. However, while wills and trust are the best options, there are other ways to leave your children money, including:
Retirement accounts: Generally, retirement accounts like 401k’s and IRAs allow for named beneficiaries. The money will go to the decedent’s estate if there is no designated beneficiary. Naming a beneficiary will enable funds to avoid probate, saving time when it is accessible to the beneficiaries. Like the original owners of the retirement account, heirs will owe taxes on the money when they take distributions unless they were Roth IRA contributions.
Life insurance: Life insurance is meant to make sure that people who rely on your financially will be okay upon your death. Purchasing life insurance and naming your children as beneficiaries can provide their children with financial protection upon their parent’s death. You can also name your trust as the beneficiary, allowing your trustee to have control of the life insurance money rather than giving your children direct control of the funds if they have reached the age of majority.
529 plans: A 529 plan is a tax-advantaged savings plan to help pay for your children’s education. 529 plans allow tax-free withdrawals for qualifying education expenses, which include expenses directly related to education expenses from kindergarten through postsecondary. Although, withdrawals for expenses for grades K-12 are limited.
Will My Children Receive My Money If I Don’t Create an Estate Plan?
In cases where an estate plan is not created before someone’s death, their assets will be distributed according to Texas’s intestate succession laws. As a result, if you have not made an estate plan, your assets that do not have named beneficiaries will be distributed depending on who survives the decedent by at least 120 hours:
If there is no surviving spouse, then the children will inherit everything.
Suppose there is a surviving spouse, and the children are biologically their child. In that case, the spouse will get all of the community property, one-third of your separate property, and a lifetime right to use your real estate. The children will receive the remaining assets.
Suppose there is a surviving spouse, but the children are not biologically related to the surviving spouse. In that case, the surviving spouse will receive one-half of the community property, one-third of your separate property, and a lifetime right to use your real estate. The children receive the remaining assets.
In Texas, community property generally means any property acquired by a couple during a marriage, with a few exceptions that an experienced attorney of Staubus and Randall can explain.
Contact An Experienced Estate Planning Attorney Today
If you have children, it is essential to make an estate plan because you never know what will happen. The experienced Dallas estate planning attorneys at Staubus and Randall will be able to review and evaluate your specific needs and help you create an estate plan that will help ensure your assets go to those you wish them to.
Whether you are creating a new estate plan or need your current estate plan revised, the skilled attorneys of Staubus and Randall are ready to help. Contact us online or call us at 214-691-3411 for a consultation.
When someone dies, their last will and testament must enter probate. A probate judge reviews the will to confirm its validity and authorizes the executor to administer the estate.
The thought of putting your family through probate can be upsetting and stressful. You want your loved ones to receive the assets they deserve without enduring a complicated legal process. However, probate isn’t as scary as it might seem.
Below are the most common misconceptions about probate in Texas.
1. The State Takes Every Possession if There Isn’t a Will
One of the most common misconceptions about probate is where a person’s belongings end up if they die without a valid will. Many think the state will assume ownership of everything, and surviving family will never receive any assets.
However, that’s not true. According to Chapter 201 Subchapter A of the Texas Estates Code, an estate passes to surviving heirs by intestate succession if there isn’t a will. That means your assets will be distributed to your spouse, children, parent, and other individuals in your line of succession.
Intestate succession isn’t a problem for some people. However, if you’re not close to your family or want specific assets to pass to one heir over another, creating a will and naming beneficiaries is crucial.
2. Probate Takes Years to Complete
The probate process can take some time. However, it doesn’t necessarily take years. It might take a while if someone contests the will or files a lawsuit against the executor for misconduct.
The length of probate also depends on the size of the estate. Typically, probate can take about six months or up to a year for the judge to approve the administration of the estate.
3. The Oldest Child Must Be the Executor
Choosing your oldest child as the executor of your estate might make sense. However, it isn’t a law. You can appoint anyone as the executor of your estate if they meet the requirements.
Your executor can be a sibling, parent, friend, or coworker. They must be at least 18 years old and of sound mind. They must also not have a conflict of interest or have been convicted of a state or federal felony.
4. Estate Taxes Will Drain the Estate
Estate taxes are a real thing. Administering an estate requires paying taxes, debts, and other obligations. However, Texas does not impose an estate tax.
The federal estate tax only applies to estates worth over $12,060,000 as of 2022. Starting in 2023, an estate is subject to federal estate taxes if the value is over $12,920,000. Unless your estate exceeds those tax exemptions, you don’t have to worry about your family using most or all of your assets to pay taxes.
5. Avoiding or Minimizing Probate Isn’t Possible
Your entire estate can’t avoid probate. Probate is necessary to validate your will. However, you can set up parts of your estate to avoid probate, so some of your assets transfer automatically upon your death.
How to Avoid Probate in Texas
Multiple options are available for minimizing probate assets so beneficiaries can receive property without waiting for the court to authorize the distribution. You should consider these options while creating your estate plan to prevent your family from encountering complications:
Revocable living trust – A revocable living trust is a type of trust you can control while you’re alive. You can transfer and remove assets, change beneficiaries, and revoke the trust at any point during your lifetime. When you die, the assets held in the trust will pass directly to your named beneficiaries according to the instructions in your trust agreement.
Joint ownership with a right of survivorship – Two or more people can own property and establish joint ownership with a right of survivorship. It gives the surviving owner control of the asset upon the other owner’s death.
Transfer-on-death (TOD) deed – You can use a TOD deed for real estate, brokerage accounts, motor vehicles, and qualified securities. Ownership transfers to your named beneficiary or beneficiaries when you die.
Beneficiary designations – You should complete a beneficiary designation form on your financial accounts. Your beneficiary can access the funds after you pass away without going through probate. You can include a beneficiary designation for savings bonds, life insurance policies, securities accounts, retirement plans, and bank accounts.
Get Help with Your Estate Plan
Estate planning is time-consuming. You must complete all necessary documents according to the requirements of state law. Errors can cause significant problems for your family, leading to will contests, creditor claims, and other legal disputes. You can make the process easier for your loved ones by establishing a well-prepared estate plan with an experienced lawyer.
The Dallas estate planning attorneys of Staubus and Randall have over 100 years of combined experience in estate planning. We can help protect your assets and your family’s future. Call us at 214-691-3411 to schedule a consultation today.
Your will contains your last instructions to family and friends about how you want your estate distributed. Although every will is different, there are essential items you should address and components you must include to ensure the document is legal.
Texas has requirements a will must meet to be considered valid. One of these is that there must be a physical document. In other words, it cannot only exist as a digital document. You must be at least 18 years old to create a valid will, and the will must be made voluntarily of your own free will by a person who is of sound mind.
Additionally, the document must include verbiage that makes it a will and be signed in the presence of two credible witnesses who must also sign it. Making the document legal is a vital part of creating a will, so you will likely want to work with a Dallas estate planning attorney who can ensure your document will be followed in the event of your death.
What Are the Most Important Things to Include?
When you create a will, certain factors should be present, including:
Identifying information: At the beginning of the document, your Dallas estate and trust attorney will include information such as your name, address, and a declaration that this document is your will. It must also include your marital status when the will is written and signed and your children’s names.
Debt payment: A section must tell the executor of the will how the remaining debts should be paid. This includes the assets that will be used to pay off the debt. This section can also include whether the home should be sold to pay the mortgage if there is one.
Assets: As you create your will, ensure you have listed all major assets and assets with personal value. Your will can work in combination with a trust to distribute your estate. You must list all assets that you want to give specifically to a particular beneficiary. These are individuals who receive your assets. You can leave everything to one person without putting in the specific details of your assets.
Beneficiaries: Your beneficiaries can be individuals, groups, or charities. It may be wise to name a contingent beneficiary in case the individual you choose to inherit your assets dies before you do.
Guardianship: If you have children younger than the age of majority in the state, your will should designate a guardian. In Texas, the age of majority is 18. If you do not designate a guardian for the younger children, the court will make that decision for you.
Trust: This is an optional component of a will. However, if you have minor children, you may want to include the creation of a testamentary trust for your minor children to help pay for the children’s support while they’re with the guardian. This trust is funded by your assets and can be distributed to the guardian throughout the time your children live with them.
Executor: Your will must identify a person or persons who will ensure your will is executed to your specifications. They will manage your assets, pay your debts, and distribute the estate based on the powers you give them in the will.
Does It Need to Be Notarized?
In Texas, a will does not need to be notarized. However, the statutes allow you the option of including a self-proving affidavit. In this case, you, the witnesses, and a notary sign the affidavit, which offers evidence that you signed the will following state laws.
The affidavit is attached to the will and is a substitute for the testimony of witnesses in court during probate. This can save your beneficiaries time and money as it demonstrates the will meets the legal requirement.
However, if your will does not meet the legal standard, the court can find it invalid, and the estate will then be distributed as if you died without a will.
Contact Staubus and Randall to Help Ensure Your Will Is Followed
If you need help with your estate planning or creating a trust, you’ll want to contact the experienced and compassionate attorneys from Staubus and Randall. Our legal team can advise you about the different elements that must be included in a legal will. Our team will help you plan your estate and asset management to help care for your loved ones after you’ve died.
Contact our office today at 214-691-3411 to speak with a Dallas estate planning attorney who can help you address all the necessary scenarios that may affect your family. Don’t leave your family’s future to chance.
The process of estate planning rests on numerous assumptions. Key amongst these assumptions is the notion that the beneficiaries of your will are going to outlive you. While it is probable that your heirs will still be around when you pass, particularly if they are younger than you are, there is always a possibility that someone you have named in your will may not survive you.
Although this kind of event is unpleasant to consider, it is crucial to recognize how inheritance works under such conditions according to Texas law. Understanding the various potential outcomes of a situation like this can help you to ensure that your estate plan is as thorough and straightforward as possible.
Texas Survival Requirements
According to the Texas Estates Code, a beneficiary of a will must survive the person who made it (the testator) by five days to inherit property. The property will therefore pass in this fashion by default unless the testator’s will contains language that:
Addresses simultaneous deaths or deaths in a common disaster, or
Specifies that a beneficiary must survive the testator for a certain period to inherit the property in question.
Most estate planning attorneys recommend that their clients’ wills include survivorship language requiring a beneficiary to survive for a longer time, such as 30 or 60 days if they are to inherit under the will. The reason for this is that if a beneficiary dies soon after the testator, the testator’s estate may pass according to the wishes outlined in the beneficiary’s will rather than that of the original testator themselves.
For example, if your will stipulates that your home is to be passed to your nephew after your death, your nephew will inherit your home even if he survived you by just a few days. Upon his death, even though it is only days after yours, the house would pass to your nephew’s heirs according to his estate plan, even if you would have preferred to have it pass to a younger niece instead.
On the other hand, if you include language in your will that any beneficiary who dies within a short time of your own death will not be eligible to inherit, your own wishes for your property would determine how it would pass. In the absence of this language, according to Texas law, any beneficiary can inherit if they outlive you by five days.
Contingent Beneficiaries
A good estate planning attorney will advise you to name a contingent beneficiary to whom the property will pass in the event that the primary beneficiary does not survive your death or that they die before the stipulated survival period is complete. For example, you could name your niece as a contingent beneficiary of your home if your nephew does not survive you for the required number of days.
Lapsed Gifts
If a will does not name a contingent beneficiary, or if the contingent beneficiary is deemed to have predeceased the testator, the gift will have “lapsed” or failed. The distribution of lapsed gifts is determined by Texas state law.
A will may contain language stipulating that any lapsed gift will become part of the residuary estate. Even in the absence of this language, the Texas Estates Code instructs that lapsed gifts will pass to the parties the testator’s will named as the residuary benefits of the estate.
The law also states that if there are multiple residual beneficiaries named in the will and one of them predeceases the testator, the deceased beneficiary’s share shall pass to the surviving residuary beneficiaries in a manner proportionate to their interest in the residuary estate. If there are three residuary beneficiaries, and one dies, the deceased beneficiary’s share of the residuary estate will be split 50-50 between the surviving two.
The residuary estate will pass as though the testator died without the will in the event that all residuary beneficiaries:
Are dead when the will is executed,
Do not survive the testator, or
Do not survive the testator for the amount of time stipulated in the will.
Contact an Experienced Estate Planning Attorney
Planning how your estate will be distributed upon your passing can feel overwhelming, especially when considering the various eventualities, no matter how improbable. An experienced estate planning attorney can help you navigate all these complications so that you can have confidence in your plan. The Dallas estate planning attorneys of Staubus and Randall have the knowledge and skills necessary to guide you through the process so that you’ll know your wishes will be fulfilled.
Call us today at 214-691-3411 or contact us online to schedule a consultation.
If you have a loved one suffering from Alzheimer’s, you understandably have concerns with how the progression of the disease will affect them goring forward and what types of treatment and care they will need. Additionally, if they have not yet created an estate plan, they might not have the powers of attorney required to successfully manage their care in the way they would wish.
Luckily, you have many options available to help ensure your loved one with Alzheimer’s is protected and provided for during their battle with the disease.
Estate Planning Options for Those with Alzheimer’s
As a long-term and progressive disease, Alzheimer’s will require a lot of money and resources to treat and manage throughout the remainder of your loved one’s life. Many people are financially unprepared for the ordeal, and they also have no legal documents in place to specify wishes and instructions for health care, life-sustaining treatment, or what will happen to their assets upon their passing.
After being diagnosed with Alzheimer’s, your loved one should consult with legal and financial professionals as soon as possible. Although your loved one can make important decisions now, they will lose that ability as the disease progresses, and they will have to be of sound mind and deemed competent to make decisions in order create important documents to protect them in the future.
Therefore, your loved one needs to meet with an estate attorney to draft the following. You should also make sure they are filed with the court, or appropriate party, and that they are readily accessible to you and other pertinent parties when needed:
A will that details their wishes and instructions regarding their assets and beneficiaries as well as their end-of-life details
A living will to specify their wishes and instructions regarding lifesaving or life-sustaining treatment
A durable power of attorney for financial decisions
An advance health care directive, such as a do not resuscitate order
Even if your loved one already has a will or other estate documents, those documents may need updating after the Alzheimer’s diagnosis. Your loved one will need to have an attorney review them and make changes as needed.
Financial Documents and Protections
Treating and managing Alzheimer’s is expensive, and the costs will only increase as the disease progresses. You will need to sit with your loved one and carefully review their finances to determine their ability to cover the costs they may incur. Your estate planning attorney can help you with this, and they may partner with financial advisers who can help you and your loved one create a plan to provide funds for their care and treatment.
Along with ensuring your loved one will have funds available to pay for care and treatment, you will also need to protect those funds when your loved one has progressed to the point that they can no longer make financial decisions on their own.
For that reason, you need to ensure you have the following documents in place:
A durable power of attorney – This will grant an agent your loved one designates to make financial decisions on their behalf when they become incapacitated or incompetent.
A living trust – More versatile than a will, a living trust can be used while your loved one is still alive, and it does not have to go through probate. It can cover a wide range of assets, and the funds can be used to pay bills and other costs associated with your loved one’s treatment and care.
Special Needs Trusts
These trusts, also sometimes called “Supplemental Needs Trusts,” are allowed through a federal statute. People who are disabled can receive benefit from the trust assets and income. These trusts are only useful in particular circumstances. To determine whether your loved one is eligible for a trust of this type and whether they would benefit from one, they’ll require the advice of an experienced estate planning attorney.
Contact Us
There might be other options available, and the experienced Dallas estate planning attorneys of Staubus and Randall will explain all of the options and help your loved one create a solid estate plan that will provide for and protect your loved one and their family going forward.
However, your loved one needs to create their estate documents while they still can make important decisions, so you should contact us as soon as possible at 214-691-3411 to request a confidential consultation.
If you have considerable debt, you may have concerns about passing those debts on to your heirs and loved ones through your estate when you pass away. Likewise, if you are the beneficiary of someone’s estate, you may be concerned about incurring your loved one’s debt and having to pay it back. In limited circumstances, an heir might inherit a debt. Read on for additional information.
In some instances, a debt may be forgiven upon the death of the debtor, but most of the time, creditors will seek recompense for the money they are owed. Upon someone’s death, all debts become part of the estate, and the estate’s assets must be used to pay off any debts.
By law, the executor or representative of the estate must provide notices to creditors of the estate owner’s passing through the following methods:
Publishing a notice in a local newspaper
Mailing a notice to the Texas Comptroller of Public Accounts
Mailing notice to secured creditors
The notices should be published in the newspaper within 30 days of the executor’s appointment, and notices to secured creditors must be mailed as a certified or registered letter to secured creditors within 60 days of the executor’s appointment. Failing to do so can result in liability issues for the estate’s executor. Executors may also provide notice to unsecured creditors, but it is not required, and there is no established deadline for doing so.
Upon receiving notice of the decedent’s death, creditors will have a certain time to present a claim against the estate to recover their money. Any person or entity owed money by the decedent may present a claim against the estate. These people or entities fall into two categories:
Secured creditors – Loans secured by collateral, such as a mortgage or car
Unsecured creditors – Loans unsecured by collateral, like credit cards or personal loans
A creditor must present a claim against the estate accompanied by an affidavit to recover money, and the claim must show that it is just. It must account for the money owed. If the creditor is a corporation or other legal entity, then an authorized representative of the entity may present the affidavit.
Priority of Creditors
Just because a creditor presents a claim against the estate does not mean they will get the money they are owed. In fact, some creditors receive no money if the estate’s assets cannot cover all its debts.
However, certain entities take precedent over others, and the creditors are usually prioritized as follows:
The IRS
Funeral costs and final expenses up to $15,000
Family allowances
Administration costs
Secured loans
Owed child support
State taxes
Costs of incarceration
Medicaid and state medical assistance payments
Unsecured loans and other claims
An estate executor or representative has the option to accept or reject a claim, and they have 30 days to decide. If they have not decided after that time, the claim is considered rejected, and the creditor can file suit against the estate in probate court.
Will You Have to Pay Any Debts?
In general, heirs do not inherit debt after a loved one’s passing. In fact, federal student loans may be forgiven, depending on the situation, and credit card debt will not pass down to children. However, you may be responsible for your benefactor’s debts if any of the following applies:
You were a co-signer on a loan with the decedent
You are their adult child, and they passed off their mortgage to you as an inheritance
You were married to them at the time of their passing
Texas is a community property state, and the state considers all assets, property, and debt to be jointly owned by both spouses. You can be held responsible for any debt your partner acquired during your marriage, even if your name is not on the account. However, you are not automatically liable for your spouse’s separate debt, and you need to review your situation with an estate or probate attorney to understand your options.
Contact Us
The experienced Dallas estate litigation attorneys of Staubus and Randall will review your situation and advise you of your rights and options. We are here for you in this difficult time, and you can contact us at 214-691-3411 to request a confidential consultation.
If you are planning your estate, this can be an overwhelming time. There are many considerations, and it can be difficult to know how to best take care of your loved ones. You do not have to do this alone.
You are taking the right step by planning your estate, regardless of your age. Shockingly, nearly half of Americans over 55 have not made provisions for their estate.
An experienced and compassionate estate planning attorney can guide you through this process. One of the questions you’ll have is whether you should have a will or a trust. There are key differences to understand between the two instruments. While they are similar in some ways, they also differ in significant ways.
What Is a Will?
A will is a legal document that specifies how certain elements of your estate will be handled upon your death. It takes effect at the time of death and generally includes the beneficiaries who will receive your assets, how those assets will be distributed, as well as who will be the guardian of any young children.
When a will is created, it also specifies who the executor will be. This is the person who will execute the directives of the will. Typically, this may be a spouse, friend, adult child, or another close relative. It’s important to note that a will is a public document, so the details will not be kept private.
What Is a Trust?
A trust is a legal document. One type of trust is called a revocable living trust. A trust can be either individual or shared. When you create a trust, you then transfer your assets into the trust. This includes property, financial accounts, and real estate. You maintain control over these assets and the trust while you are still living.
To manage the trust, you will designate one or more trustees. A trustee will distribute the property after you pass away. A revocable living trust is named this way because it means that you have the right to revoke it. This is in contrast to an irrevocable trust, which cannot be changed after it is finalized. In addition to being able to revoke an irrevocable trust, you also have the right to appoint and remove trustees.
What Are Reasons That I Would Want to Choose a Will?
A will is comparatively less complex to create than a trust. In addition, a will has a lower upfront cost than a trust. This means that you will pay less to create a will. However, there will likely be future costs associated with the will going to probate court. These include probate court fees and probate attorney fees that will need to be paid by your beneficiaries.
A will allows you to name future guardians for your young children, while a trust does not. In a will, you can also name property managers for your children’s property. A will also allows you to include instructions for how taxes and debts associated with your account will be paid. For example, you can specify that certain debts owed to you will be forgiven.
Why Would I Want to Choose a Living Trust?
There are multiple reasons why you may want to create a trust instead of a will. A trust is more difficult to contest than a will. A trust is not a public document, so the details of your assets and their distribution will be kept confidential. In addition, while a will must go through the probate process, a trust does not. This means there are no associated probate court fees or probate attorney fees. It also means that the process of administering the trust after you pass away can take less time than the execution of a will.
A trust does carry a higher upfront cost than a will. This means that you will pay more at the time of creation. However, your beneficiaries will not have to bear these costs in the future. With a trust, you also have more control over how your assets are transferred to your beneficiaries.
How Staubus and Randall Can Help
If you are considering creating a will or trust, you should speak with an estate planning attorney today. In some situations, it may be that a combination of a will and trust is the most appropriate. You owe it to yourself and your family to understand how the differences between these legal documents may affect you.
Call us today at 214-691-3411 to speak with a Dallas estate planning attorney of Staubus and Randall. You can also send us your information using our online contact form. Each case is unique, and our team can help you make the best choice for your situation.
Planning what will happen to your estate when you are no longer around can feel overwhelming. Among the many challenges you may face is the question of what the tax implications of the transfer of assets might be for you or your heirs. Fortunately, an irrevocable trust is a useful tool that has significant tax benefits for both the creator and the beneficiaries of the trust.
As with most financial tools, irrevocable trusts have their drawbacks as well. Having a full understanding of the advantages and disadvantages of irrevocable trusts can help you make an informed decision as to whether they might be a useful part of your estate plan.
An irrevocable trust removes taxable assets from the grantor’s estate and transfers them into a trust under the control of a trustee. When the trust is created, the grantor sets up specific conditions under which the assets should be distributed to the beneficiaries.
The key provision that gives an irrevocable trust its name is that once the grantor places an asset into an irrevocable trust, they are then unable to revoke the trust, remove the asset from the trust, or change the list of beneficiaries. In other words, except for in certain rare circumstances that generally require the approval of both the court and the beneficiaries, the grantor permanently loses any legal ownership claims to those assets as soon as the trust is created.
The inability to change an irrevocable trust is one of its main downsides. However, some people will find that the benefits greatly outweigh the drawbacks.
What Are the Benefits of an Irrevocable Trust?
An irrevocable trust offers many advantages when it comes to planning and distributing an estate. These include:
Taking advantage of the estate tax exemption – Once a property has been transferred to an irrevocable living trust, it is no longer included in the gross value of an estate. This can be particularly helpful for minimizing the tax liability of estates that are very large.
Spendthrift protections – The grantor of the trust can stipulate specific conditions for when and how the assets should be distributed. For example, a parent may decide that a child who is a beneficiary should not receive the assets until they have reached a certain age, so that the child does not misuse the money they inherit.
Protection against creditors – Courts generally rule that since beneficiaries are not capable of voluntarily transferring the future rights of the trust to another person, creditors should not be able to confiscate these assets.
Preserving income – An irrevocable trust allows the grantor to put assets into their trust while simultaneously retaining the income from those assets.
Protecting asset value – Appreciable assets that are placed into an irrevocable trust are removed from the estate while also giving beneficiaries a step-up basis for purposes of appraising the assets for tax purposes.
Transferring a home – An irrevocable trust allows you to gift a principal residence to your children under tax rules that are far more favorable to them.
Protecting life insurance proceeds – You can house a life insurance policy in an irrevocable trust as a way of removing the death proceeds from the estate.
Qualifying for government benefits – Placing a large proportion of your assets into an irrevocable trust can ensure that you are eligible for Social Security income and Medicaid for nursing home care. You can also set up an irrevocable trust for a special needs child in order to keep any assets they inherit from disqualifying them from government benefits.
While these benefits may make an irrevocable trust a great solution for your estate plan, it is important to recognize that setting up this type of trust is a complex process. For this reason, it is important to work with an estate planning attorney who has experience creating irrevocable trusts. You can have the peace of mind that your assets are being managed in a careful manner that is tailored to your family’s specific needs. Contact us today.
Contact an Experienced Dallas Estate Planning Attorney
If you feel that an irrevocable trust is a good option for your estate planning needs, or if you have more questions about how they work, the seasoned Dallas estate planning attorneys of Staubus and Randall are here to help. Our skilled and knowledgeable lawyers have helped many clients create irrevocable trusts to ensure that their families can receive their assets without unreasonable tax burdens. Contact us today for a consultation, and we will let you know what all your estate planning options are. Call us now at 214-691-3411.
Imagining what life will be like for your family after you die is difficult. It is one of the main reasons people put off making an estate plan in the first place. However, the idea that your death may lead to arguments among your heirs over your estate can be a particularly painful thing to think about. It is not uncommon for siblings to argue about who should get what, and due to the emotional memories attached to many possessions, these confrontations can become serious very quickly.
One of the chief purposes of a well-considered will is to prevent the drama that can come about when there are unclear intentions about how assets should be distributed. By communicating with your family and anticipating the kinds of problems that may arise when you are gone, you stand a much better chance of ensuring that your passing does not have any unnecessarily adverse effects on your heirs or their relationships with one another.
When drafting your will, avoid making it overly long by attempting to list every item in your possession that you want to keep in the family. Instead, create a list of the most valuable and important items, and attach that list to your will.
It might be helpful to have a conversation with the members of your family about the items that each person holds most dear. This can help you to make these decisions and broker compromises if more than one individual wants to inherit the same thing.
You can create this list informally before you collaborate with an attorney to execute your formal will. Alternatively, you can write the attachment afterward. In either instance, while this document does not need a witness, it may be a good idea to have the statement witnessed and dated if you think there is a chance that it might be challenged. Either way, be sure to keep the statement with your will so that it is readily accessible to your executor.
Other Options
If there are valuable items that nobody expresses a particular wish to own, you can direct that these items be sold. For example, if you have a highly valuable piece of art, you can choose to have it auctioned off after your death. The proceeds can then be distributed equally among your heirs.
You can also get appraisals for your items ahead of time so that you can understand their monetary value. This can allow you to stipulate how to distribute the proceeds when high-value items are sold. Alternatively, if one of your heirs expresses a particular desire to have one of these items, you can stipulate that they can buy out those who would be otherwise entitled to a share of it.
One further option would be to employ a lottery system to distribute physical items. The executor of your will can preside over the process, and each heir can draw a number to determine the order in which they will select the items that are available. Contact us today.
Lifetime Gifts
You may also wish to consider giving some of your assets away while you are still alive. Doing so will reduce the amount of work that needs to be done when you are gone. There are a few things to keep in mind when you make gifts to your family:
Ensure that everyone is aware that you are giving something away and to whom. Otherwise, there may be accusations of theft after your death.
You have the option of making a “deed of gift” for physical items, which will allow you to maintain possession of them while you are alive.
Be aware that there may be considerable tax consequences for your heirs if you give away items that appreciate greatly in value.
Have a conversation with your estate planning attorney so that you can understand all the implications of making gifts during your lifetime.
Speak to a Dallas Estate Planning Attorney Today
Even if you think you are dividing things in a perfectly fair way, there may be unconsidered circumstances that can lead to disagreements. For example, if one of your children has spent a lot of time and resources caring for you later in life, they may feel that they deserve a greater share of the estate than their siblings do.
Speaking with the Dallas estate planning attorneys of Staubus and Randall can help you understand how your individual situation should determine how you divide your assets. We will do everything we can to ensure you have all your bases covered so that your family has clarity about your estate after you have passed. Call us today at 214-691-3411, or reach out online for a consultation about how we can best help you.
An estate plan is more than an outline of how you want your assets divided after death. A complete estate plan should include provisions specific to your wishes after death, what medical treatments you want if you fall permanently ill, and who you want to be in charge of making critical medical decisions for you if you are unable to decide for yourself.
One piece of an estate plan that may individuals overlook is a do-not-resuscitate order or DNR. Should you consider adding a DNR to your estate plan or advance directive? At Staubus and Randall, we want you to be well informed about all your options. Here’s what you should know about a DNR. If you have pressing questions about your case, don’t hesitate to contact our legal team today.
What Is a DNR?
A do-not-resuscitate order is a legally binding document signed by a physician that alerts other health care providers they are not to perform resuscitative measures. An active DNR will generally prevent lifesaving measures when a person stops breathing, their heart stops beating, or they suffer a medical emergency.
In Texas, a DNR order prohibits medical personnel from performing CPR, advanced airway management, and artificial ventilation. For a DNR order to be valid, the form must be written and dated by a patient declared competent. Contact us today.
Should You Consider a DNR?
Everyone has the right to make their own decisions related to medical care. In that sense, anyone can decide to obtain a DNR, even healthy individuals. Most healthy individuals don’t contemplate their own mortality often. Therefore, most healthy individuals do not take the time to consider what lifesaving measures they are comfortable with medical professionals taking. However, accidents can happen. If you are in the process of creating an estate plan, you should also consider whether a DNR order may be appropriate for you.
Often, those living with a terminal condition, health care concerns, and those who are elderly are the people who will generally pursue obtaining a DNR. These individuals may have faced challenging medical decisions in the past and want to be fully in control of the outcome of their situation. Additionally, they may not wish to prolong or extend their life through CPR or resuscitative measures when they are already in such fragile conditions.
While CPR can be a lifesaving technique, there are misconceptions about its effectiveness in the elderly and those who are medically vulnerable. One study indicates that among the elderly, only three to five percent of patients survive CPR and are discharged from the hospital. CPR can cause broken bones and other medical complications and may not even be appropriate for some patients, meaning there is no medical benefit for certain people. When a person has gone too long without oxygenated blood, CPR may be effective in resuscitating them. However, the person could be left with brain damage and damage to vital organs, negatively impacting their quality of life.
Obtaining a DNR
If you are interested in obtaining a DNR, schedule a time to talk to your physician. You will want to bring up your concerns and discuss the potential benefits and risks involved in resuscitative efforts. Once you have more information and feel comfortable with your decision, ask your doctor to fill out a DNR form. Your doctor can fill out the DNR order, but standard DNR forms are also available through the Texas Department of Health and Human Services website. Once the forms are completed, your physician will place the DNR in your medical record.
It is also crucial to talk to your family about your wishes. Let them know you have filed a DNR and do not want resuscitative measures taken. Contact us today.
Keep These DNR Facts in Mind
If you have a DNR on file or are thinking about filing one in the future, keep these things in mind:
If you have a DNR on file, family members cannot override the document
If you are incapacitated, a health care agent or legal guardian can agree to file a DNR order on your behalf
If you change your mind, talk to your physician immediately. Your physician must be involved in rescinding a standing DNR order
A DNR does not change other aspects of medical care
Losing a loved one is one of the hardest experiences for a family. In addition to grieving their loss, family members and heirs often find that dealing with the business affairs of the deceased person is more complicated than they expected. One concern that comes up frequently is the length of time it will take to go through the process of probating the will. An effective probate process requires a specific series of events to take place. The timeframe also depends on how efficiently each of these steps happens.
The probate process for wills is handled in a court of law. In Dallas County, the Dallas County Probate Court has the jurisdiction to probate the wills of those who have passed away. This court also has the power to declare the heirs if the deceased did not have a will.
The probate process officially begins when someone files an Application for Probate of Will and for Issuance of Letters Testamentary with the probate court clerk. The person who files these papers is often the person who is named as Executor or Executrix of the will. An attorney can also file on their behalf. The application should include the original will.
After the application has been filed, the court clerk will then notify the relevant parties of the probate of the will’s estate. There is a requisite time of 10 days so that the court has enough time to notify the public that the will was filed to probate. After, the court will schedule a hearing to admit the will to probate and to issue Letters Testamentary. Once the hearing has occurred, the judge signs an order, and the Executrix or Executor swears an oath that they will lawfully administer their duties. Following the oath, the Executor or Executrix will then receive the Letters Testamentary, which will give them the authority to administer the estate.
With the assistance of a probate attorney, the Executor or Executrix must notify creditors in the newspaper within a month of receiving the Letters Testamentary. They also need to notify known creditors of the issuance of the Letters Testamentary.
Within 60 days of the court order, the Executor or Executrix is also required to send letters to each of the beneficiaries along with a copy of the will.
Within 90 days of the order, the Executor or Executrix must also file a sworn affidavit notifying the court that they have completed the notice to the beneficiaries. Also, within 90 days of the court order, the Executor or Executrix must file an Inventory, Appraisement, and List of Claims with the court.
If an independent administrator is appointed as Executor or Executrix of the will, they will be able to complete all the other associated duties without the supervision of the court. They must pay due claims and taxes and disburse the deceased assets to beneficiaries according to the terms outlined in the will.
Probate Process Timeframe
If the probate is an independent administration and the estate is simple, the whole probate process can potentially reach completion in six months or less. However, several complicating factors can lengthen the timeframe considerably. If the probate is a dependent administration, the increased supervision and involvement of the court can mean that the process may take up to a year or even longer.
Other situations can also lengthen the timeframe, such as if the original will cannot be located or if beneficiaries or creditors file claims against the estate. Such circumstances will require additional time to resolve.
How a Dallas Probate Attorney Can Help
Hiring an experienced probate attorney can help you ensure that the probate process goes as smoothly as possible if you are the Executor or Executrix of a will. They can assist and advise you in properly discharging your fiduciary duties and drafting the necessary legal filings and pleadings quickly.
The Dallas probate lawyers at Staubus and Randall have the knowledge and experience to help you with the various procedures of the Dallas County Probate Court. Our seasoned probate legal team will be there with you at every step to streamline the process and help you see to it that your loved one’s estate is distributed efficiently and correctly.
Contact us online, or call us for a consultation today at 214-691-3411.
There are many practical, financial, or sentimental reasons people want to leave their homes to their children. No matter your motive for wanting to do so, it is important to have an estate plan that is clear regarding property distribution. A clear estate plan help protect the best interests of both you and your family.
There are different ways of passing your home on to your children, including:
Selling or gifting it to them while you are still living
Bequeathing it to them when you die
Signing a “Transfer-on-Death” deed
There are legal and tax implications for all these options. It’s important to carefully consider the various pros and cons to make sure that your property does not end up becoming a burden for your children.
Below is a breakdown of each of the various options. Feel free to contact us if you have further questions.
Selling Your Home to Your Children
As a parent, you have the right to sell your home to your children. However, it is important that you sell at a fair market value. This means that you should sell the house at a comparable value to what similar properties are selling for in the current market. Selling the home below market value will make the exchange partially a gift, which will have its own tax implications.
You have the option to loan money to your children so that they can purchase the home, but the law will require you to charge your kids interest. Furthermore, you’ll have to declare the interest you earn as income. However, one benefit of doing this is that you can structure the loan to provide a minimum interest rate. This is calculated by the IRS, which publishes its rates for loans between relatives on a monthly basis. These rates tend to be considerably lower than commercial mortgage rates, so their monthly payments will be significantly lower as well. If you have pressing questions about your case, reach out to the estate planning professionals at Staubus and Randall.
Gifting the Property to Your Children
If you would like to give the property to your children while you are still living, one option is to use an irrevocable trust. This can help in protecting against your kids’ potential creditors. Gifting a property outright can be problematic if the recipient gets into financial trouble at some point down the line. For example, if the child has to file for bankruptcy, the property could be foreclosed and removed from the family’s ownership.
For this reason, many people consider it a better option to transfer the home after they pass away.
Bequeathing Your Property When You Pass Away
An effective means of passing your property to your children at the time of your death is to do so through a revocable living trust. This will permit you to name your kids as successor trustees, which allows for a continuity of property management. You can change revocable living trusts during your lifetime, which gives you the option of changing your mind. It also allows you to be specific about how the property should be handled after you pass.
In the event that your children do not want to live in and manage the home, the trust can sell it after you pass. If one of your children wants to keep the house, but the others don’t, you can make a compensatory equitable financial arrangement, such as leaving extra money to the child who won’t inherit the property.
Deed Transfer
The state of Texas allows homeowners to sign a Transfer-on-Death deed. This works similarly to “payable-on-death” designations for transferring assets from your bank accounts to your heirs. Transfer-on-Death deeds can be helpful in that they can avoid probate on the home. You can change the designation at any point before you pass away.
You are permitted to sign a Transfer-on-Death deed for any property you own in Texas, even if it is not your permanent residence.
Call an Experienced Dallas Estate Planning Attorney Today
Whichever option you choose for passing on your home, the process can be very complicated. The Dallas estate planning lawyers at Staubus and Randall have the knowledge and experience necessary to help guide you through these complexities. Whether you are having trouble deciding which path is best for you and your family, or if you are feeling confused about the required paperwork, we are here to help you at every step of the way in this important decision. Contact a member of our legal team today at 214-691-3411, and we will discuss all of your options. Let us put our experience to work for you.
One of the most common myths about estate planning is it’s only for the terminally ill or wealthy. However, anyone of any age could benefit from creating an estate plan. Even if you don’t have high-value assets or children, executing a will, trust, and other legal documents can protect your interests and your family’s future.
There isn’t a magic age when making an estate plan is necessary. You can begin right now. Execute your estate plan to protect your loved ones and take care of them even when you’re gone. To discuss your estate planning options, contact us today.
Documents Included in an Estate Plan
Many people picture millionaires with sprawling property, expensive jewelry, and fancy cars when they think of estate planning. However, an estate plan isn’t as extravagant as it sounds. It can provide security during a person’s life and after their death.
You can execute various documents while planning your estate. If you have questions regarding your estate planning, don’t hesitate to contact us.
It’s critical to designate your beneficiaries and update the beneficiary designations in your will regularly. If there’s a death or birth in the family, you might want to change who you leave your assets to upon your death.
Your dependents should be named beneficiaries on bank accounts, so the funds transfer automatically when you die. You can also choose who you want to receive your retirement plan, real estate, personal belongings, and other property.
A living will might also be a good option if you want to instruct your loved ones on medical care should you become incapacitated. For example, if you suffer a coma from a car accident, your living will can outline your decisions regarding extraordinary life-saving measures and medical care. If you have a living will, your family can direct your medical team on what you want and don’t want when you can’t speak for yourself.
Power of Attorney
A power of attorney (POA) can serve multiple functions, including:
Making medical decisions upon your incapacitation
Handling your legal matters
Managing your finances
When you create a POA, it’s vital to grant someone the authority to handle your affairs. You can execute a general power of attorney, allowing the chosen agent to manage various matters or create separate POAs to protect your medical, financial, and legal interests.
The three main types of POAs include:
Medical POA – A medical POA gives the agent authority over crucial medical decisions if you’re unconscious, incompetent, or otherwise unable to speak for yourself. They can talk to your doctors about medications you avoid, surgical procedures you want, and have input on other medical services.
Financial POA – With a financial POA, your agent can make decisions regarding your finances if the circumstances prevent you from doing it yourself. For example, if you’re in a different country for a significant period, you can give your agent authority over necessary decisions in your absence.
General POA – A general POA is a broad document allowing the agent to manage a range of decisions, including those involving business operations, financial transactions, life insurance purchases, and gift contributions.
Trust
A grantor can set up a trust and transfer assets to be held in the trust until their death. Upon their death, the assets can be distributed to the named beneficiary without probate. Trusts are beneficial in estate planning because beneficiaries can receive the assets left to them without going through a time-consuming court process.
The appointed trustee is responsible for managing the account and transferring property when the grantor dies. If you set up a trust, you should choose a trustee you know will follow your instructions. It should be someone who will ensure that your beneficiaries receive your assets instead of transferring them to themselves for personal gain.
Common Life Events for Estate Planning
Significant events in life often spark a person’s interest in creating an estate plan. The most common include:
Marriage or divorce
Buying a home
Birth of a baby
Acquiring new or high-value assets
Starting a new career
Opening a business
Death of a family member
Receiving an inheritance
Maybe something in your life happened to make you think about estate planning. If you already have a plan in place, you might have to make changes depending on the new circumstances. For example, if your named beneficiary dies, you need to amend the document and pick a new beneficiary.
Contact Us
Staubus and Randall believes in helping our clients secure their futures and protect their interests. When you’re creating an estate plan, you want to ensure that your loved ones receive specific assets and won’t face the burden of making important decisions on your behalf when you die.
Estate planning is necessary for anyone regardless of age, health status, and economic standing. It’s especially crucial to create a valid estate plan if any of your beneficiaries have special needs. Without a carefully drafted will, trust, or other legal documents, your dependent family member’s future isn’t secure.
If you die without a valid estate plan, you leave your dependent special needs adults without the financial means to afford their care. They might not be able to pay for medical treatment, household assistance, and other necessary expenses. If they depended on someone their whole life and that person dies, they’re left alone to fend for themselves.
You should create an estate plan specifically for the dependent adults in your life. If you’re their primary caretaker or pay for their nursing home bills, you should set aside funds and execute a will, so they continue receiving the care they need when you’re gone.
Below are tips you should follow for creating an estate plan for special needs adults. Contact us immediately if you have pressing questions. We have the experience you need.
Write a Letter of Intent
A letter of intent notifies your guardians, trustees, and other people involved in the estate about the care of your disabled or incompetent family member. You can outline this person’s routine, physical or mental impairments, interests, hobbies, medical needs, and other crucial details in this letter.
This isn’t a legal document. However, it’s valuable to any estate plan involving a special needs adult beneficiary. You should draft the letter immediately and regularly update it as your loved one’s needs change. It’s also important to have a conversation with anyone you address in the letter to discuss how they should handle these circumstances when you die.
Create a Trust
Dependent adults typically don’t have the ability to maintain employment. They need someone else to pay for their household assistance, prescriptions, medical treatment, and other costs. You could set up a Supplemental Needs Trust (SNT) for the special needs adult in your life.
An SNT is a special trust you can use to transfer and hold assets for the benefit of your loved one and to cover their needs. Like a trust for a minor child, funds can go toward the adult’s care. Additionally, an SNT doesn’t prevent a special needs adult from qualifying for government assistance programs, such as Medicaid. If you have particular questions regarding your situation, don’t hesitate to contact us today.
Appoint an Executor of the Estate
If you don’t choose someone to manage your estate when you pass away, the court could appoint an executor for you. That means someone in your family you wouldn’t want to have control of your assets could become your executor. It’s vital to choose an executor while creating your estate plan and mention them by name in the legal document. Specifically indicate that they should be in charge of administering your estate upon your death.
Your family member in need of care should receive the assets, assistance, funds, and anything else you leave for them. Discuss your decision with the executor ahead of time, so they understand the situation. You should pick someone you trust to carry out your wishes and keep the dependent adult’s interests in mind.
Choose a Power of Attorney
You might not realize the benefits of choosing a power of attorney (POA) during estate planning. An estate plan isn’t only necessary while planning for death. It should also include instructions on how to handle your incapacitation.
Let’s say you sustain a traumatic brain injury in a car accident and can’t speak for yourself. Your POA can step in and direct your healthcare team. Depending on your estate plan, they might also have access to certain assets while you’re incapacitated.
Your special needs adult child, parent, or family member won’t have someone to take care of them while you’re lying in a hospital bed. Your POA could take over temporarily by directing funds from your bank account to your loved one’s assisted living facility, medical providers, and other parties. They can become the caretaker while you recover.
Schedule a Family Meeting
Although you can leave instructions or letters in your estate plan for your surviving family, it’s best to also have open and honest communication in advance. Inform your family of your decisions regarding the dependent adult’s future.
You should discuss your plans for future care, financial support, and other important matters. If you choose an executor, talk to them about how you want them to manage your estate when you die and if you should become incapacitated. Proper planning ensures that everyone is on the same page and might prevent disputes down the road.
Contact Us
The Dallas estate planning attorneys of Staubus and Randall have over 100 years of combined legal experience. We bring extensive knowledge and skill to every case we take. When we represent you during your legal matter, you can rest assured that you’re in qualified and capable hands.
If you want to draft an estate plan to make provisions for the special needs adult you care for, do not hesitate to contact us at 214-691-3411. We have the experience you need and will be happy to meet with you for a consultation to discuss your needs.
You may not have thought about placing your assets in a trust. It might seem too complicated, or you may think it’s just not necessary at this time. And thinking about a trust also means thinking about not being around anymore, and that’s never pleasant. But there are some good reasons to consider seeing an estate planner and discussing the pros and cons of putting your assets in a trust.
Very simply, a trust is a big box where you can store your assets until you’re ready to give them to someone else. Unlike a will, which is a list of directions for giving away your things, a trust is more like a gift you give to others when you’re gone.
Once you place items in the trust, your assets will stay there until you take them back out again. In an irrevocable or unbreakable trust, nobody can take them out. They are there until you die, and they are given to the beneficiary. In a revocable trust, you can take things out, but the beneficiary cannot. In some cases, you or the beneficiary may receive payments from the trust, like stock dividend payments.
A trust lets you control who has access to your property, and when. Trusts also allow you to disburse some of your assets before you die and to provide for minor children or for disabled or special needs family members who may not be able to manage their own funds. Your estate planner will discuss the benefits of a trust with you. Contact us today.
Four Reasons To Establish Your Trust
You may think you don’t need a trust, but consider these benefits:
Control of your assets. The trust does not exist until it is made, but after that, the trustee has total control over the trust. You will be able to manage where your assets go, who has control of them, and when they are dispersed. For instance, if you want a trustee to handle your children’s finances until they are out of college, the trust structure provides the way for them to do that. Your children remain the beneficiaries and can receive payments from the trust.
Avoids probate. A trust goes into effect immediately upon the death of the grantor (you). At this point, the trust becomes irrevocable, and nothing can be changed, so there is no need for a judge to make any decisions about interpretation. The trustee can make any distributions needed and manage the other trust property as before.
Provide for minor, disabled, or spendthrift beneficiaries. By designating certain assets ahead of time for beneficiaries who will need a designated trustee, you can ensure these individuals are properly cared for. If you have beneficiaries whose access you want to restrict, there are ways to prevent them from receiving too much money at once.
Protection in case of disability. Living to extreme old age in good condition is no longer an impossibility, but assisted living facilities are not cheap. Placing your assets in a trust today can be a way to ensure you have the funds you need to live your twilight years in comfort rather than squalor.
Special Considerations
In some situations, you should always have trust arrangements in place. If you have a special needs child who is unable to live outside the home, long-term financial planning is a must. Someday you will not be there for your child, and you do not want to leave them to the kindness of strangers.
This is also true if you have a family history of any mental or physical degenerative diseases, such as Alzheimer’s or Parkinson’s disease. The worst that could happen is that you reach healthy old age with extra money in your trust.
How We Can Help
There is no wrong time to make your estate plan. If you have concerns about your future, you should start thinking about how you want to have your property managed when you are not here to do it. Financial planning is the best way to be sure your loved ones are cared for if you are not here to look after them.
Anyone can establish a trust, provided they have something to put into it. You don’t need to be wealthy or have lots of property to have a trust. If you want to discuss your estate plan, contact the Dallas estate planning lawyers of Staubus and Randall at 214-691-3411 to schedule a consultation to talk about your assets and the right kind of trust for you and your family. We have the experience you need.
Common misconceptions regarding estate plans might prevent someone from planning for the unexpected. Drafting a will is vital to protect your assets and loved ones, even if you’re young and in good health. You might not think estate planning is necessary. However, it could give you peace of mind if a significant event disrupts your life or cuts it short.
Most people believe they don’t have to create an estate plan until they’re old or develop a terminal disease. Some people don’t realize the benefits until an accident or near-death experience happens in their lives. Others never create a will and pass away unexpectedly, leaving their family struggling to recover their assets.
If you don’t have an estate plan or haven’t updated yours in a while, you should consider contacting Staubus and Randall to take immediate action. Planning for death may seem like a morbid experience but it can help you secure your family’s future. Creating a valid estate plan is particularly crucial if you have kids and want them cared for when you’re gone.
Additionally, estate planning isn’t only about what should happen when you die. You can also outline instructions regarding your healthcare if you become incapacitated and can’t make decisions. With the proper legal documents in place, a trusted family member could step in and speak on your behalf.
Below are some common myths about estate planning you should ignore.
MYTH: An Estate Plan Is Only Necessary for Sick and Old People
A common misconception about estate planning is it doesn’t need to happen unless you’re elderly or have received the diagnosis of a life-threatening illness.
However, anyone could lose their life or suffer a debilitating condition, leaving them without the ability to communicate. If you don’t have legal documents in place to instruct others about your wishes, the people you love could face financial hardships and struggle to make the decisions you want.
The truth is that you’re never too young to create an estate plan. Even if you don’t have assets, you might have a pet or kids. It is essential to leave instructions about who should take care of them if you can’t. Otherwise, your children could end up in foster care, and your pets could get dropped off at a shelter.
Whether you have many or only a few assets, your estate plan can direct how they should be distributed. You can include beneficiaries in your will, so they receive things like your bank account, house, or car when you pass away.
If you have pressing questions, don’t hesitate to reach out to us today.
MYTH: Wealthy Individuals Benefit More from Estate Planning
While wealthy people require estate plans to ensure that their high-value assets stay protected, others need one too. It doesn’t matter if you’re not rich or only have one or two assets in your name. You can’t control who receives the funds in your savings account or personal property if you don’t include it in a will or a trust.
Estate plans can involve more than just money and significant assets. You might have family heirlooms you want to pass down when you’re gone. Creating documentation that specifies who should receive certain items could prevent family disputes. If you don’t inform others of what you want, property can go missing, and family members can take each other to court for possession of what they believe they deserve.
MYTH: Estate Planning Is for Death
An estate plan doesn’t only address matters involving a person’s death. It can also be helpful in situations that occur while someone is still alive. Although you might not worry about the possibility of a traumatic life event, anything can happen.
When you create a will, you can designate an executor or administrator to manage your estate and distribute property according to your wishes upon your death. However, a range of other legal documents can protect your interests if you’re no longer competent.
For example, a medical power of attorney gives someone you appoint the authority to make your healthcare decisions when you’re incapacitated. If you create a financial power of attorney, your designated agent can handle your finances if you’re forced to leave the country for an extended period or end up in the hospital.
You can take additional measures to ensure someone is responsible for managing your children’s needs while you’re incapacitated. You can choose a guardian to assume the role of caregiver and set aside funds they can use for your child’s medical care, education, and basic needs.
Contact Staubus and Randall
Since 1992, the Dallas estate planning lawyers of Staubus and Randall have provided clients with dependable legal services. We know how to create comprehensive estate plans to protect your rights and your family’s future. You can count on our legal team to dedicate the necessary time and resources to plan and execute a valid will and other valuable documents for you.
If you’re considering creating an estate plan, call Staubus and Randall right now at 214-691-3411. You can discuss your needs with us during a consultation and learn about the available options.
A medical power of attorney (POA) is a legal document you create while you’re making your estate plan. This document gives someone the authority to make decisions regarding your healthcare when you can no longer make those decisions for yourself. The person you appoint as your medical POA could instruct your medical team about treatment you don’t want, medications you prefer, and end-of-life care.
A medical POA should be someone you trust completely and who you know will fulfill their obligations and carry out your wishes. Even if they disagree with your decisions, they should be willing to carry out the plans you choose if you become incapacitated and can no longer speak for yourself. When you can’t discuss your medical needs and wants, they are your voice.
Many people choose to create a durable medical power of attorney. A durable POA allows your agent to act on your behalf if something happens to you, preventing you from making your own decisions. Some courts assume a medical POA is durable, but you should explicitly state that in the legal document.
Elements of a Medical Power of Attorney
Medical POAs can also be referred to as:
Advance directive
Medical power of attorney directive
Advance healthcare directive
Power of attorney for healthcare
A medical POA focuses on medical decisions. You should write one according to state law. If you make an error or don’t include the necessary signatures, someone could challenge its validity in court.
Most people think they don’t need a medical POA unless they develop a terminal illness or physically disabling condition. However, this directive can be useful in many situations. For example, if you’re in a car accident and end up in a coma, you can’t communicate your wishes to your doctors. Your medical POA can step in and direct your healthcare team.
A person who’s been given your medical power of attorney can make decisions regarding:
Your medical POA can also access your medical records if necessary. Sometimes, reviewing this information can help make informed decisions about your care.
When Your Medical Power of Attorney Takes Effect
A medical POA becomes effective when you become incapacitated. You can also include instructions in your estate plan regarding specific events that authorize your POA to take over your healthcare needs. Examples include:
An accident puts you in a coma or unconscious state
You are under general anesthesia
A doctor diagnoses you with dementia or another disease that interferes with your ability to make good decisions
A medical condition, such as a stroke, causes communication issues
You have a lapse in mental health, resulting in incompetence
Your medical power of attorney can take effect whenever you choose. However, it typically becomes effective upon incapacitation. A doctor must confirm your condition in a written letter or in your medical records.
Choosing Your Medical POA
When creating an estate plan, you should carefully choose a medical power of attorney. The person you appoint must be a competent adult at least 18 years old. Minors can’t act as anyone’s POA.
You should also consider these characteristics when deciding whom you want to designate:
Remains calm in a tense situation
Communicates with family members regularly
Makes quick decisions regarding treatment and other necessary choices
Asks questions if confused about treatment options
Feels comfortable making vital decisions on the spot
Knows how to take control and instruct healthcare professionals confidently
Follows through with your directives regardless of personal opinions
Whoever you choose, it should be someone you know will keep your best interests in mind and follow all instructions you provide. If you can’t trust the person you pick, they shouldn’t be your medical POA.
How to Create a Medical Power of Attorney
Creating a valid and enforceable medical POA requires following these steps:
Determine whether you need a medical POA – If you want control over your healthcare decisions, you should designate a medical power of attorney. Without one, your doctors can make the decisions they believe are best while caring for you. That could result in extraordinary measures to keep you alive when that’s something you don’t want.
Pick a dependable agent – You should only choose a medical POA you know you can rely on to make the decisions you want to be made. An emotional or irrational family member might choose medical options that aren’t in line with your wishes.
Complete the paperwork – You have to fill out several different forms to establish a medical power of attorney. It’s only valid if you sign it in front of a notary public or two witnesses.
If you want to create a medical power of attorney for your estate plan, do not hesitate to contact Staubus and Randall. One of our Dallas estate planning lawyers can meet you for a consultation to discuss what we can do for you. Call now at 214-691-3411.
If you are in the process of writing your will or trying to determine how the property of a family member will be handled after their death, you may have encountered the term probate. Probate is the legal process by which a person’s estate, their property and possessions, are handled after they pass on.
In the probate process, a court officially recognizes a person’s death and determines how their assets are distributed among family members and other beneficiaries. If the deceased left a will to direct where their property should go, the procedure may be simpler. Some items do not have to go through probate, but others, especially those lacking titles or not named in the will, may have to go through this process.
How Does the Probate Process Work?
The probate process can be daunting to those without experience, but the good news is that compared to other states, probate in the State of Texas is relatively simple. The Texas probate process can be broken down into several steps:
Filing with the probate court – An application for probate is filed with the proper probate court for the county where the deceased was a resident.
Posting notice – Before a hearing is held regarding a probate application, there is a ten-day waiting period to allow for anyone to contest the will or the administration of the estate.
Hearing and validation – After the waiting period, there will be a hearing and the probate judge will ensure that the will is valid or verify that the deceased did not leave a will. The judge will then appoint an administrator for the estate or will verify that the executor is valid.
Inventory of assets – Within 90 days of the appointment of an administrator or executor, that person must compile a list of all the assets held by the estate and file it with the county clerk, in the form of a report known as an Inventory, Appraisement, and List of Claims. This report lists the estate’s assets as well as a reasonably accurate estimation of their value as of the deceased’s passing.
Notify beneficiaries – If the deceased left a will, the executor must notify the beneficiaries of the estate. If there was no will, the probate court must determine heirship. In the case of unknown potential heirs, it may be necessary to post notices in newspapers and at the courthouse.
Notice to creditors – The deceased may have unresolved debts, also known as liabilities—hospital bills, house or car payments, or other major expenses. The executor must notify creditors of the person’s death and allow them the opportunity to make a claim against the estate.
Dispute resolution – If family members or potential beneficiaries wish to contest the will, the probate court must hold a hearing before finalizing the estate.
Distribution of Assets – Once any disputes are resolved and the estate has been finalized, the assets are distributed to the beneficiaries.
The probate process contains specialized legal vocabulary and concepts that you may find confusing if you’ve never experienced them. Here are a few commonly used terms.
Administrator – When a person dies without a will and an executor hasn’t been named, Texas law requires that an administrator be appointed to manage the estate.
Assets – Property with a monetary value held by an estate. Real estate, vehicles, clothing, jewelry, bank accounts, cash, and furnishings would all be considered assets.
Beneficiaries – These are the recipients of the property distributed from an estate, whether family members, friends, or organizations.
Decedent/Deceased – These terms refer to the person who has died.
Estate – The assets that belonged to the deceased person are collectively known as the estate.
Intestate – This term refers to an estate whose owner died without a will. A probate court must determine how to distribute the assets of such an estate.
An estate litigation lawyer from Staubus and Randall can explain any confusing terminology and answer any questions relating to your own probate case.
Speak with a Texas Probate Attorney Today
Managing your family’s affairs after the death of someone close is hard enough without all the extra strain of sorting out their estate. The probate process can be complicated, and mistakes could potentially be costly. You need a knowledgeable estate lawyer who can guide you through this process efficiently and with a minimum of stress.
Most people want to take care of their family even after they’re gone. Creating a last will and testament can make sure that your assets pass to your chosen beneficiaries upon your death. That way, there won’t be any confusion about what assets you intended to go to which person.
Drafting a last and will and testament isn’t as complicated as you might think. If you want peace of mind knowing there won’t be any confusion about what happens to your property after you pass away, you should hire an estate planning lawyer and begin the process of creating a will today.
Every part of an estate plan has its advantages and disadvantages. A will is no different. There are pros and cons you should consider if you’re thinking about setting up a will.
Pros of Having a Will
The advantages of creating a last will and testament include the ability to:
Distribute assets how you want – Any property you leave behind will transfer to your named beneficiaries. If you don’t create a will or choose beneficiaries for your estate, the assets will likely be distributed by intestate succession. That means specific heirs will receive your assets according to state law. Creating a will allows you to control who gets what, so you can avoid family disputes.
Choose a guardian – If you have minor children, you can choose a guardian to assume their care after you pass away. When you draft a will, you can name a guardian and set aside money for them to use to provide for your children. A guardian prevents the child from ending up in foster care or with a family member you don’t want to entrust your children to.
Appoint an executor – You can choose an executor to manage your assets according to your will when you’re gone. The executor is an individual who handles all aspects of the will by paying debts, distributing assets according to the deceased’s wishes, and closing the estate properly. You don’t have to worry whether your surviving family will honor your wishes when you have a trusted executor to manage your estate on your behalf.
Create a plan for your pets – Pets are like family to most people. Whether you have a dog, cat, hamster, or lizard, you probably want to know they’ll end up in a loving home when you die. You can use your will to indicate who you want to assume care of your pet upon your death. You can also set money aside so the guardian you choose can pay for food, toys, vet appointments, and other necessities.
Cons of Having a Will
Although a will is beneficial for most people during estate planning, it can also create some challenges. The most common disadvantages of having a last will and testament include:
It’s public – Once a will enters probate, it becomes a public record. That means anyone can search online for the legal documents and find out the assets you owned when you died. If an estranged relative isn’t included in your will, they could pursue legal action, delaying the process of distributing your assets to your chosen beneficiaries.
Time-consuming probate – Your estate will likely have to go through probate after you die. That means your loved ones can face a lengthy process to get the court to validate the will so they can receive the assets you left them.
Incapacitation doesn’t apply – You can’t use a will to appoint someone to take care of your medical, legal, and financial matters if you become incapacitated and can’t make your own decisions. A will only becomes effective upon your death.
Court procedures in multiple states – Unfortunately, your beneficiaries can’t go through the probate process just one time if you have property in other states. They must submit your will for probate in each state where you own assets.
Contact an Estate Planning Lawyer from Staubus and Randall
At Staubus and Randall, we have over 100 years of combined experience helping our clients with their estate planning. We will use our resources and personalize our services to meet your specific needs. When you hire us, we can review the circumstances of your estate and draft a will that can protect your assets and family.
You should not attempt to create an estate plan on your own. The option might seem appealing because it saves you money, but you could open yourself up to serious problems down the road. If you don’t draft the documents correctly, your will could be invalid, allowing relatives to sue your heirs for the assets you left behind. Additionally, a poorly drafted estate plan can cause confusion about your final wishes.
If you want to create a last will and testament, do not hesitate to contact Staubus and Randall at 214-691-3411 to schedule a consultation with one of our Texas estate planning lawyers.
A power of attorney (POA) is a legal document granting someone the authority to manage your affairs if you’re unable to yourself. A POA can become effective once you sign the document or if a specific event occurs, such as incapacitation.
When you create a power of attorney, you can appoint an attorney-in-fact, also called an agent, to make decisions on your behalf. There are multiple types of POAs you can draft depending on the kind of affairs you want your agent to manage.
The agent you choose does not have to have a legal background. However, they must be at least 18 years old and of sound mind. You should pick someone you trust to make the decisions you would make regarding your assets, finances, medical care, and any circumstances that arise. Your agent should be a person you know will act in your best interest and who will be willing to carry out the wishes you outlined in the POA.
Types of Power of Attorney
There are different types of POAs. Each one has a unique purpose and offers distinct benefits. You can designate a different agent for each or one person to handle all of your affairs. The different types of power of attorney include:
Durable and non-durable POA
Limited POA
Springing POA
Medical, financial, or military POA
General POA
Durable and Non-Durable Power of Attorney
A durable POA goes into effect if you become incapacitated due to an accident or illness. The signed document allows the agent you choose to make specific decisions on your behalf.
You can decide whether you want your agent to have authority over your decisions upon signing the POA or when a medical provider deems you to be incompetent. You can also appoint a specific doctor you trust to determine whether you’re incompetent.
A non-durable POA is effective until you become incapacitated. If you don’t create another legal document to determine what should happen if you’re deemed incompetent, no one will have the authority to speak on your behalf if you can’t speak for yourself.
Limited Power of Attorney
A limited POA grants your designated agent authority over minimal matters. You can set the conditions for the affairs your agent can handle if a specific event occurs, such as when you experience a medical problem or take a business trip to another country. Instead of making all of your decisions, they can only make decisions based on predetermined circumstances.
The most common affairs listed in a limited POA include:
Collecting debts
Facilitating business transactions
Selling real and personal property
Managing real estate
Springing Power of Attorney
A springing POA becomes effective when a healthcare professional deems you to be physically incapacitated or mentally incompetent. A qualified doctor must declare you mentally incompetent or physically incapacitated before your attorney-in-fact can make decisions on your behalf.
Medical, Financial, or Military Power of Attorney
A medical POA grants your agent the responsibility and authority over medical decisions. If you’re incompetent, unconscious, or unable to speak for yourself for any other reason, your appointed agent can communicate your wishes regarding healthcare to your doctors.
For example, if you have a strong opinion about life support, you can include that in your medical power of attorney. You might not want doctors to use extraordinary measures to keep you alive.
A financial POA allows your agent to make financial decisions on your behalf when specific situations prevent you from being present. For example, if you’re traveling abroad for an extended period, you can give your agent the authority to make important decisions about your finances in your absence.
You can even create a financial POA to kick in if you’re mentally incompetent or incapacitated and unable to make sound financial decisions.
A military POA allows someone you choose to manage your finances while you’re performing your military duties. That person can access your accounts, file taxes, and complete additional financial tasks if you cannot do those things yourself.
General Power of Attorney
A general POA is a broad power of attorney granting your attorney-in-fact authority over a range of decisions, such as:
Providing gift contributions
Purchasing life insurance
Managing business and financial transactions
Operating a business
Settling claims
Your designated agent can protect your interests and handle matters outlined in the document while you’re traveling, if you become incapacitated, and in various other situations.
Speak to an Experienced Estate Planning Lawyer Today
Contact an estate planning lawyer from Staubus and Randall immediately if you want to create a power of attorney and don’t know which one would be most beneficial for you. You need guidance to choose the right POA to cover your specific circumstances and to help you draft an enforceable legal document so no one can argue its validity. Call 214-691-3411 now for an appointment.
A living trust is a legal document you can establish to protect your assets during your lifetime. Your appointed trustee has the authority to manage any property and assets you move into the trust and eventually transfer them to your named beneficiaries as outlined in the document upon your death or incapacitation.
Everyone knows they should create a last will and testament. Unfortunately, many people don’t understand how beneficial a living trust can be.
If you’re considering your options during estate planning, you should review the main reasons below for why you should create a living trust.
You’re Unable to Make Decisions for Yourself
Creating a living trust protects any assets you transfer into the trust during your lifetime so your loved ones can have access to them if you become incapacitated. It’s a good idea to set up a living trust if you have a terminal illness, cognitive disease, or are older.
If something happens to you and you can’t speak for yourself, the trustee you choose can manage your trust on your behalf.
Even if you’re young and healthy, creating a living trust is an excellent idea in case you’re involved in a traumatic accident, such as a car crash, and end up in a coma. You won’t be able to inform your family of your wishes or how to pay for your medical bills and other expenses. However, granting your trustee access to the trust allows them to manage your funds without the need to go to court.
You’re Responsible for the Care of Minor Children
If you want to ensure your child’s future, you can hold specific property in your living trust to have transferred to them when they reach the age you designate.
Some people decide 18 years old is the right age to give their kids access to their assets. However, others might think that’s too young for someone to be responsible for managing their own finances and choose to transfer assets out of the living trust and to the children once they reach 25 or even 30 years old.
When you establish a living trust, you can be the trustee yourself and appoint a successor trustee in case something happens to you, or you can decide who you want to be the trustee. The trustee manages the assets held in trust until they can transfer them to your children based on the directions you left behind.
You can also include specific terms regarding which assets your children can access and at what ages. For example, you can create a payment plan for your kids to receive a predetermined amount of money every month starting at the age you decide. That way, they can’t spend the funds frivolously all at once.
Your Beneficiaries Won’t Have to Go Through Probate
Probate can be a complicated and time-consuming process. It involves a probate judge validating a deceased’s person’s estate and allowing the beneficiaries to receive the assets outlined in the legal document. Unfortunately, that means it could take weeks or even months before your heirs can use the funds and additional property left to them in your estate plan.
With a living trust, your beneficiaries can avoid probate and gain immediate access to your assets upon your death, incapacitation, or another specified event without going to court for authorization first.
Keep Your Private Matters Private
If your surviving relatives have to go through probate to receive your assets, your estate becomes a matter of public record. Anyone can look up the information online, preventing your estate from remaining private.
If you set up a living trust, your family avoids the probate process and can manage your assets privately. That means no one will have the ability to search for the assets you owned when you died and your named beneficiaries that took ownership of them after completing probate.
Contact an Experienced Estate Planning Attorney
You don’t want your loved ones to struggle if something happens to you. You want to ensure they’re taken care of if you’re no longer able to care for them whether you pass away or become incapacitated. Creating a solid estate plan can protect your property and family and give you peace of mind knowing your heirs will receive the assets you left for them without any obstacles getting in their way.
If you’re thinking about creating a living trust, you should speak with an experienced and knowledgeable estate planning attorney from Staubus and Randall. We can review your assets to determine whether a living trust could be beneficial for you. Call us today at 214-691-3411.
You should create a living will if you want your family and medical providers to know how to handle your medical care if you can’t speak for yourself.
A living will is a legal document that outlines your preferences regarding the type of medical treatment you want if you can’t make your own decisions. The instructions you provide should direct your family members and doctors when specific circumstances arise, such as:
Coma
Terminal illness
Traumatic injury
Cognitive disease
With a living will, you can indicate your wishes for end-of-life care and whether you want your physicians to use extraordinary measures to keep you alive. You can also outline your decisions regarding medication, pain management, and additional medical preferences.
The Importance of a Living Will
A living will gives you peace of mind knowing you will receive the medical treatment you choose if something happens and you can’t inform anyone of your wishes. It can also relieve any burden your family would have had if they were forced to make challenging decisions on your behalf. If you clearly state what you want in your living will, it could prevent your family members from arguing over how to handle your medical care.
Who Can Create a Living Will?
Anyone at least 18 years old and of sound mind can set up a living will. Sound mind means you understand your decisions regarding the terms of the living will you’re creating.
Most people think older adults and individuals with a terminal illness are the only ones who can benefit from a living will. However, a valid living will can also help when unexpected scenarios arise, such as a fatal disease or car crash resulting in a coma.
When a Living Will Becomes Effective
A living will is only effective while you’re alive and unable to make sound decisions. Once a doctor deems you incompetent, incapacitated, or otherwise unable to communicate how you want your medical treatment to be handled, your living will can go into effect.
Typically, your medical provider will evaluate your condition to determine whether you no longer have the ability to understand your available treatment options and communicate your wishes.
If you pass away, your living will isn’t effective or enforceable anymore.
Difference Between a Living Will and Last Will and Testament
A last will and testament is much different than a living will. The main difference is that a last will and testament outlines how you want your estate handled when you die. A living will directs people to make health care decisions under specific circumstances when you can’t speak for yourself.
Decisions You Should Include in Your Living Will
If you decide you want to create a living will, you should hire an estate planning attorney and consider your options regarding end-of-life care. The most common scenarios people include in their living wills are:
Feeding Tube
If you’re no longer able to eat on your own, you could receive the fluids and nutrients you need intravenously or through a tube in your stomach. Specific points you should address include:
Whether you want a feeding tube
When you want to be connected to a feeding tube
The length of time you should be fed through a feeding tube
Mechanical Ventilation
Mechanical ventilation occurs when a person can’t breathe on their own. If you want to include these instructions in your living will, you should specify certain information, such as:
Whether you want mechanical ventilation
The circumstances that should arise to be placed on a ventilator
How long you want to be on a ventilator
Medications
You can choose whether you want your doctors to use specific medications in different situations. For example, if you develop a serious infection, you can decide whether you want antibiotics administered.
You might have a strong opinion regarding controlled substances and would rather avoid strong painkillers and similar drugs.
Organ Donation
A living will can include a section on donations. If you want to donate your organs to someone in need, you should specify that in the document. You could also donate your body to science.
Dialysis
If your kidneys don’t function properly anymore, you can indicate whether you want to go on dialysis in your living will. Dialysis performs multiple functions, such as:
Assisting in controlling blood pressure
Removing waste, extra water, and salt from the body to prevent them from building up
Maintaining safe levels of certain chemicals in the blood, such as sodium and potassium
Contact an Estate Planning Attorney Today
If you want to create a living will, you should contact an estate planning attorney from Staubus and Randall today. We can advise you about the various elements of a living will to ensure you address all the necessary scenarios, so your family knows what to do if you can’t make your own decisions anymore. Don’t leave anything to chance. Call 214-691-3411 today.
There is currently more wealth being transferred between generations than at any time in our nation’s history. According to the Center for Retirement Research at Boston College, it is estimated that the baby boom generation will inherit $8.4 trillion over their lifetimes. It is also clear that the number of wills being contested is on the rise. Factors including the blended family, and parents living longer and being cared for either by one of their children or by a private caregiver, can result in late-in-life changes to Last Will and Testaments, which reduce or cut out the shares of family members. This is one of the classic recipes for a will contest. Here is what you need to know if you find yourself in that situation.
When Can a Will be Contested?
A will cannot be contested prior to the testator’s death. After death, it is most advantageous to contest a will prior to the hearing to admit it to probate, which is normally within approximately two weeks after it is filed with the Court. By contesting the will prior to it being admitted to probate by the Court, the burden of proof as to the testator’s mental capacity is placed on the person offering the will for probate, rather than on the contestant, which can be a significant advantage for the contestant.
Once a will has been admitted to probate, a will contestant has up to two years from the date of the contested will’s admission to file a will contest, or it is forever barred. If contested after the will has been admitted to probate, the burden of proof as to the testator’s mental capacity is on the contestant.
What are the Grounds for a Will Contest?
The primary grounds for contesting a will are lack of testamentary capacity and undue influence. In order to prove that a testator had the necessary testamentary capacity at the time the will in question was executed, the person offering the will, assuming the will is contested prior to it being admitted to probate, has the burden of proof to show:
The testator understood the business in which he or she was engaged, the effect of his or her act in making the will, and the general nature and extent of his or her property;
The testator knew his or her next of kin (the “natural objects of his bounty”); and
The testator had sufficient memory to collect in his or her mind the elements of the business to be transacted and to hold them long enough to at least perceive their obvious relation to each other and to form reasonable judgment about them.
In order to prove that a will is not valid because it was executed as the result of the exertion of undue influence on the testator, the contestant has the burden of proof to show:
The existence and exertion of an influence;
The effective operation of such influence subverted or overpowered the mind of the testator at the time of execution of the will; and
The will executed would not have been executed but for such undue influence.
Other potential grounds for a will contest are forgery, insane delusion, improper execution of the will, and fraud.
Important Evidence
Obtaining the testator’s medical records is critical to any will contest to evaluate and to establish the testator’s mental capacity and susceptibility to undue influence at the time of execution of the will. A forensic psychiatrist can also be important in interpreting these medical records. The testator’s financial records are often critical in assessing the testator’s ability to handle his financial affairs, his knowledge as to the nature and extent of his property, and any evidence that the testator was being financially exploited. Depositions of the attorney (if any) who drafted the will, the witnesses and notary to the Will, and any caregivers of the testator are essential.
Whether you are contesting a will or are defending a contested will, it is important to have a full legal team experienced in the unique evidentiary issues, rules, strategies, and necessary expert witnesses to effectively assess and litigate a will contest.
For more information on will contests, or on other estate litigation, trust and fiduciary litigation, guardianships, or closely-held business litigation handled by the firm, visit the firm website, www.srllp.com, where you may download two available white papers on will contests:
On January 1, 2013, Congress passed the American Taxpayer Relief Act (ATRA), and shortly thereafter, President Obama signed the bill into law on January 2, 2013, ending what many had worried would lead to falling off of the “fiscal cliff,” being the scheduled radical reduction in estate tax and gift tax exemptions, and significantly higher estate tax and gift tax rates. With the passing of this important legislation, it is prudent to understand how these new laws may impact your personal estate planning.
Highlights of the American Taxpayer Relief Act (ATRA)
The following is a summary of the significant provisions of ATRA:
Sets a permanent 40% top tax rate for estate, gift and generation-skipping transfer (GST) taxes in excess of the exemption amount
Unifies estate and gift tax exemptions and currently sets these exemptions, as well as the generation-skipping transfer (GST) tax exemption, at $5.25 million per individual
Makes permanent “portability” possible by allowing the surviving spouse to elect to add the unused exclusion of the decedent to the surviving spouse’s exclusion, meaning that married couples currently can pass $10.5 million of assets without the worry of gift or estate taxes
Increase in the Annual Gift Tax Exclusion
In addition to the changes brought about by the American Taxpayer Relief Act (ATRA), the annual gift tax exclusion amount was increased to $14,000.00 per designee beginning January 1, 2013. This is an inflation-adjusted increase from $13,000.00 in 2012. Married couples may combine their annual gift tax exclusion amounts, which allows them to make tax-exempt gifts totaling $28,000.00 per designee.
Planning Beyond 2013
For many individuals who may have delayed estate planning due to the uncertainty that existed in 2012, now is the time to implement new estate plans, given the apparent stability in rates and exemptions for the foreseeable future. Even if estate taxes are not a primary focus or an issue for individuals, proper estate planning can be essential in offering protection from creditors and divorcing spouses, as well as offering protection to children and beneficiaries. Additionally, a well-developed estate plan can provide benefits in income tax planning, which is now particularly important for individuals who find themselves in higher tax brackets. Finally, proper planning is essential to small business owners who wish to do business succession planning to determine how their business will be controlled after their death, as well as which family members or business associates will benefit from and carry on the business.
Reviewing Existing Plans
Equally important to the planning process is the necessity of evaluating current family dynamics and changes in relationships which might affect the choices which individuals have made in existing documents, including whom they wish to appoint to make decisions for them under their health care power of attorney or general durable power of attorney, to act as guardians of their minor children or as trustees of their trusts, or to act as executors of their estate.
Another important issue in evaluating existing estate plans is the need to adequately review the often overlooked status of beneficiary designations on joint accounts with right of survivorship, insurance policies, and retirement accounts. The failure to properly coordinate these designations with the estate plan can cause assets to be distributed to persons which the individual did not intend, in a manner inconsistent with the overall estate plan, due to an incorrect or out-of-date beneficiary designation or account styling. This can also lead to estate tax and income tax implications that were unintended.
The American Taxpayer Relief Act (ATRA) has significantly impacted tax planning for individuals in the estate planning process. There are a number of important issues beyond estate and gift tax planning which all individuals should address and periodically review in order to secure their future and the future of their family and loved ones.
Ryan A. Randall, ranked as a Five Star Professional by Texas Monthly Magazine, concentrates his practice in Estate and Tax Planning, Asset Protection Planning, and Business Succession Planning.
Over the years, having litigated a number of catastrophic tort claims, I have frequently been asked by clients, as well as by students in my tort class at Collin College, to explain the difference between a Wrongful Death Claim and a Survival Claim. I explain the difference between these two claims as follows:
A Survival cause of action is something that belongs to the deceased for damages that he or she suffered before they passed away.
A Wrongful Death cause of action does not belong to the deceased but instead belongs to the surviving spouse of the deceased, a child of the deceased, or a parent of the deceased.
The deceased person’s heir or the personal representative of their estate may bring a Survival claim. The claims that may be asserted are claims that the deceased person could have asserted had he or she survived. For instance, if a person was injured in a car accident due to the negligence of someone else and died a few hours later from those injuries, then their heir or their personal representative could assert a claim for the medical bills incurred and the pain and suffering that the person endured from the time of injury to the time of death. This is just an example of a portion of the damages that the personal representative of the estate or the heir of the deceased could assert. Any damages recovered pursuant to a survival claim are subject to the debts of the estate.
The damages recovered under a Wrongful Death claim are to compensate the surviving spouse, child or parent of the deceased for their loss. These damages typically include loss of financial support, loss of inheritance, mental anguish, and the loss of the relationship. Any damages recovered under a Wrongful Death claim are personal to the Plaintiff, and are not subject to the debts of the deceased.
Both the Wrongful Death claim and the Survival claim typically have a two-year statute of limitations. There are a few exceptions to this limitation, which can best be addressed with an attorney on a case-by-case basis.
In some instances, it is preferable to assert only a Wrongful Death claim as opposed to a Survival claim, assuming you are a surviving spouse, child or parent of the deceased and are also an heir of the deceased’s estate. Whether you have an individual claim and/or are an executor or administrator of an estate which holds a potential claim relating to the Decedent’s death, it is important to consult with an attorney regarding the decision as to whether to assert a Wrongful Death Claim, a Survival Claim, or both claims, as well as to the viability and value of these claims.
Joseph E. Legere’s practice is concentrated in Will Contests, Trust Litigation, Guardianship Litigation, Fiduciary Litigation, and Catastrophic Tort Claims. For more information regarding Mr. Legere’s litigation practice, please visit his Attorney’s profile page.
The Firm
The attorneys at Staubus and Randall have over 100 years of combined experience in estate planning, probate, and litigation. We have the knowledge and skills to tackle complex legal issues, such as guardianships, will contests, fiduciary litigation, and trust litigation. We can also handle routine matters, such as estate administration, probating wills, heirship determinations, and other probate court matters.
Staubus and Randall received a preeminent AV rating from Martindale-Hubbell, which is the highest rating possible from a peer-rated legal service. This rating recognizes our hard work, dedication, and the case results we’re able to achieve.
What Our Clients Say
"I recently had the occasion to hire Mr. Staubus for a hotly contested Guardianship matter. Mr. Staubus brought a rare combination of effectiveness, reasonableness and understanding of the human element involved. Mr. Staubus handled all things in a calm, highly competent, effective and reasonable way. It could not have been as easy as he made it seem. He's a credit to the Bar."
Jody
"Before retaining the guidance of the Staubus & Randall firm, I was at my wit's end trying to close an uncle's estate as a co-executor. In addition to dealing with difficult heirs, I had other pressing business issues coming up immediately on estate land in the middle of the Eagleford Shale including dealings with pipeline, seismic, oil & gas, and construction companies. The local bank also refused to give me access to information relating to the estate. This quickly became the most stressful and desperate time in my life...and then I found Joseph Legere who truly became my guardian angel. He was able to get all issues resolved efficiently and the estate fully closed. His professionalism, immense legal knowledge on a wide variety of topics, and amazing communication skills took the burdens off of me and quickly got closure. I am forever indebted to this firm for giving me my life back."
Martha
"Without exception, the legal service, professional attitude, prompt communication of your firm and your legal knowledge is second to none. I only wish I had an attorney here in Boston that could hold a candle to your experience and expertise. Working with you has been a pleasure, but even more, has made me believe that there are knowledgeable attorneys that do care about doing a good job. Thank you Keith! You may not truly understand how much of an impact you are having on peoples lives, but for me, you have helped change my life. As I begin making my dreams come true I can't help but remember none of this would be possible without you."
Joann
"Keith Staubus and Julie Blankenship and their team represented me in a jury trial in the probate court where the ownership of the business which I had worked hard to build was at stake. They successfully fought to preserve my business and my professional reputation, working masterfully to gain the support of the jury. I would not hesitate to hire them again in any bet-the-company litigation.”
Karen
"I have required legal representation twice in my life in two separate will contests. Both times I sought assistance from Keith Staubus and Staubus/Randall. Their service, approach, and determination to obtain results exceeded the other attorneys in each case. Mr. Staubus has always come across as genuine while being direct. He gets the process done in a timely manner with results. I will certainly use him again when and if any new challenges arise.”
David
"After my husband's death, I was devastated by having to defend against a vicious dispute over my husband's estate. Julie Blankenship and Keith Staubus made me feel very comfortable in this distressing situation. They were very tough and did an excellent job for me in obtaining a summary judgment in my favor without a full jury trial. I was glad to have them and Diane Walker in my corner to help me achieve an excellent result - I won! If I ever had to go back to probate court, I would hire them again.” - (will and trust construction case)
Flo
"If you need intervention for someone you love but don't know where to turn or who to turn to, Julie Blankenship and Keith Staubus helped me through the most difficult and stressful time in my life with a much loved family member. I now believe that good will triumph over evil. They fought for what was right, and good prevailed."
(contested guardianship and will contest)
Janet
"As a professional money manager, I have used Ryan Randall's estate planning services both personally and for my clients. Ryan has exhibited three critical attributes in his work with me: (1) high intellectual capacity, (2) exceptional thoroughness, and (3) a total commitment to integrity. In today's litigious world, it can be quite costly not to "get things done right.” An added bonus to us was that we found one of the nicest people we could imagine.”
John
"I was represented by Keith Staubus as an income beneficiary in a lawsuit with the trustee of a family trust. Utilizing the expertise of a forensic accountant and his own trust expertise, Keith was able to negotiate a judicial modification of the trust providing for the buyout of my income interest for a substantial lump sum payment out of the trust, resulting in a win-win situation for all of the parties. I highly recommend Staubus/Randall for any trust disputes and trust modification actions."
Kathy
"I have been a wealth management specialist and retirement plan consultant with the Dallas/Fort Worth financial community for over 20 years. I have engaged Ryan Randall to work with a number of my best clients over the years, including business owners, professionals and families. My clients always appreciate Ryan’s straightforward approach to estate planning, asset protection planning and business succession planning. He makes even the most sophisticated estate planning strategies understandable."
If you have a loved one suffering from Alzheimer’s, you understandably have concerns with how the progression of the disease will affect them goring forward and what types of treatment and care they will need. Additionally, if they have not yet 
Treating and managing Alzheimer’s is expensive, and the costs will only increase as the disease progresses. You will need to sit with your loved one and carefully review their finances to determine their ability to cover the costs they may incur. Your 
If you have considerable debt, you may have concerns about passing those debts on to your 
Just because a creditor presents a claim against the estate does not mean they will get the money they are owed. In fact, some creditors receive no money if the estate’s assets cannot cover all its debts.
If you are planning your estate, this can be an overwhelming time. There are many considerations, and it can be difficult to know how to best take care of your loved ones. You do not have to do this alone.
There are multiple reasons why you may want to create a 
In some situations, you should always have trust arrangements in place. If you have a special needs child who is unable to live outside the home, long-term financial planning is a must. Someday you will not be there for your child, and you do not want to leave them to the kindness of strangers.
A person who’s been given your medical power of attorney can make decisions regarding:
The probate process can be daunting to those without experience, but the good news is that compared to other states, probate in the State of Texas is relatively simple. The Texas probate process can be broken down into several steps:
The probate process contains specialized legal vocabulary and concepts that you may find confusing if you’ve never experienced them. Here are a few commonly used terms.
Appoint an executor – You can choose an executor to manage your assets according to your will when you’re gone. The executor is an individual who handles all aspects of the will by paying debts, distributing assets according to the deceased’s wishes, and closing the estate properly. You don’t have to worry whether your surviving family will honor your wishes when you have a trusted executor to manage your estate on your behalf.
When you create a power of attorney, you can appoint an attorney-in-fact, also called an agent, to make decisions on your behalf. There are multiple types of POAs you can draft depending on the kind of affairs you want your agent to manage.
For example, if you have a strong opinion about life support, you can include that in your medical power of attorney. You might not want doctors to use extraordinary measures to keep you alive.
A living trust is a legal document you can establish to protect your assets during your lifetime. Your appointed trustee has the authority to manage any property and assets you move into the trust and eventually transfer them to your named beneficiaries as outlined in the document upon your death or incapacitation.
Some people decide 18 years old is the right age to give their kids access to their assets. However, others might think that’s too young for someone to be responsible for managing their own finances and choose to transfer assets out of the living trust and to the children once they reach 25 or even 30 years old.
A living will is a legal document that outlines your preferences regarding the type of medical treatment you want if you can’t make your own decisions. The instructions you provide should direct your family members and doctors when specific circumstances arise, such as:
If you decide you want to create a living will, you should hire an estate planning attorney and consider your options regarding end-of-life care. The most common scenarios people include in their living wills are:
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