Do I Need a Trust?
Frequently, my clients ask me if they need a trust. Clients frequently ask about probate and ask “How can probate be avoided?” My answer is that it depends but there is a good chance that a trust is not what you need. There are times that a revocable living trust is an effective estate planning tool but for many clients, it is a waste of money. Trusts are promoted by many websites and literature that the public receives. Trusts are not a solution for all. To determine if a trust is a good idea for you, it should be discussed with an estate planning attorney. Please call our office to set up a free consultation. Reasons A Living Trust Might Not Be Necessary 1. Probate is not complicated. Probate is not expensive if you have a good will and competent counsel. The price for creating a revocable living trust, funding it, making transfers into the trust, and related documents will far exceed the cost of probate for a will that was properly drawn up to provide for independent administration. 2. Probating an estate of a properly drafted will is not timely or a lengthy process. Texas law streamlines the probate process and rarely are there long delays when there is a properly drafted will. An independent administration under a well-drawn will requires only one hearing and minimal court involvement in the process thereafter. A competent, conscientious executor will move the process along quickly unless there are unusual complications. 3. You can avoid probate of many assets by placing them in joint tenancy with the right of survivorship, beneficiary designation, or payable on death designations. This is a better and simpler way of passing on many assets upon death rather than spending the money to place assets in a living trust. If beneficiaries are minors or have special needs, you may require a trust but this can also often be accomplished in a good will. 4. Living trusts are currently not needed by most individuals for estate tax planning. Under current estate tax regulations, unless you have an estate worth more than $12 million per person, you have no need for a living trust to avoid estate taxes. This could change in the future if Congress changes the estate tax laws. 5. If assets are not added to the trust, the purpose of having a living trust can be defeated and probate is still required. When a person has a revocable living trust, all assets must be properly titled. If this is not done, there may still be a probate required to transfer the title, and the expense is multiplied. Reasons You Might Need A Trust 1. Ownership of property in different states or many counties in Texas may require a living trust. 2. A person needs special assistance in managing assets or special needs children. 3. A person wants to provide special conditions to receive assets. If you have questions about whether a trust would be a good fit for you and your family, please contact the office at 713-467-1760 to schedule a consultation.
Read moreWhat is a Texas Medical Power of Attorney?
A Texas medical power of attorney is a document that allows a person to select someone else to make health decisions on their behalf. The principal can limit or give unrestricted powers to the agent to make any type of responsibility, including ending the principal’s life. Alternate agents may also be selected in the event the primary agent cannot perform. The person you designate to make medical decisions for you is called an agent. The medical power of attorney gives your agent broad power to make any health care decisions you could have made if you were not incapacitated, unless you specifically restrict his or her authority. Medical powers of attorney are not just for the elderly. Unexpected injuries or illness can occur at any age, so all adults should have one in place. What Are the Requirements of a Medical Power of Attorney in Texas? To be valid in Texas, a medical power of attorney must either be: signed by you in the presence of a notary public OR signed by you in the presence of two witnesses, who also sign the document. Witnesses cannot be any of the following: The person you have designated as your agent; A person related to you by blood or marriage; A person entitled to any part of your estate after your death under a will or codicil executed by you or by operation of law; Your attending physician; An employee of your attending physician; An employee of a health care facility in which you are a patient if the employee is providing direct patient care to you or is an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility; or A person who, at the time this medical power of attorney is executed, has a claim against any part of your estate after your death. When Does a Medical Power of Attorney Become Effective? The medical power of attorney becomes effective immediately after you execute it and is effective indefinitely unless it contains a specific termination date or you revoke it. If the medical power of attorney has a specific termination date but you are incompetent on that date the medical power of attorney continues to be effective until you become competent. If you are able to make medical decisions for yourself, you have the control and right to make those decisions. In the event that you cannot make these decisions, your “agent” can legally make medical decisions for you. A medical power of attorney authorizes your agent to act on your behalf only when and if your attending physician certifies in writing and files the certification in your medical records that based on his reasonable medical judgment, you are incompetent. Regardless of the existence of a medical power of attorney or the declaration of incompetence, the statutes specify no medical provider can give or withhold treatment from you if you object. Can I Revoke a Medical Power of Attorney? You can revoke a medical power of attorney by notifying either your agent or your health care provider, orally […]
Read moreElder Law: Documents Every Adult Needs, Probate and More
The following transcript was excerpted from a June 22, 2020 virtual presentation on elder law, wills and probate in Texas by attorney Cynthia Fronterhouse. The event was organized and sponsored by CarePartners, whose vision is to be the leader in caregiving resources in Texas. You can click the image above or watch the recorded presentation on YouTube. My name is Cynthia Fronterhouse and I am an attorney in Houston. I actually practice law with my father. He is semi-retired, but he has over 50 years of experience. He has always focused his practice on construction litigation, representing small companies, so when I joined him, so he could go enjoy his life, I really enjoyed meeting with the clients and their families, preparing for the inevitable as well as when they lost a loved one. I grew up in the Spring Branch/Memorial area. I did go away to college to Smith College in Massachusetts and then I came back to Texas and went to the University of Texas Law School. I am married, and I have one daughter, age nine years old. Really helping families before they lose someone and then when they lose a loved one is really my passion and walking them through that process. It’s so difficult when you’re trying to process and grieve, and then having to deal with a lot of the probate aspects is tough. So that’s really what I’m going to focus on. Most people know what a will is and why it’s important, but then what happens when you do lose a loved one? A will is a document that determines where your assets are going to go when you die. It doesn’t take effect until you’ve passed away, so once you pass away is when your will goes into effect. And one of the big cases that we had when I first started with my dad was one where one of his clients lost a brother, who didn’t have a will. When he died, he had two minor children. Watching the family go through that grieving process, and then having to see how difficult it was because the man didn’t have a will was what really inspired me to help people and educate people. That’s so important. You can use a will to determine where your assets are going to go and to whom you want them to go. Also in your will, you can appoint a guardian to your children. Also in your will you can appoint an executor. The executor is only responsible for determining and following your wishes that are outlined in your will. So what happens when you lose someone if they have what’s called probate? Probate is the process of authenticating the will. You file an application to probate a will with the court. You file the original will with the court and normally do it in the county where the person resided. You have to do that within four years. Then you file with the County Clerk. You have to wait 10 days because the will is posted at the County Courthouse and then, after 10 […]
Read moreWhat is Probate?
When there is a will… probate is the legal process whereby a will is authenticated in a court of law and arranges for the distribution of a person’s estate. Texas offers some of the simplest probate options, allowing families to quickly conclude personal and financial family matters with dignity. If the will is uncontested and the estate is not large or complex, probate can be a routine procedure, where a judge verifies the documents and releases the estate to be transferred. However, if there are disputes, questions about the validity of the will, no beneficiaries are named or the appointed executor does not want the job, probate can become a lengthy, complex and expensive process. After the executor is appointed in the hearing before the judge, below are a few steps that must be completed. The assets will need to be tracked down and inventoried. Non-cash property must be appraised and sold, if necessary, to settle debts and pay taxes. Once the financial obligations are fulfilled, the remaining property is divided according to the will’s instructions or the court’s order. When there is not a will… probate is whereby the estate is settled according to the laws of intestacy in the state of residence of the deceased at the time of death in the absence of a legal will. When a person dies without a will in Texas, their property will be distributed under Texas intestate law. This typically means that heirs will have to go through the Texas Probate Courts to determine who the proper heirs are and to settle the decedent’s estate. This is called a Suit to Determine Heirship. What is a Suit to Determine Heirship? If there is not a will and the estate is worth more than $50,000 (not including the homestead and certain non-probate assets), it may be necessary for a court to determine who the heirs are according to Texas law. The judge will appoint an attorney ad litem to represent the interests of potential or unknown heirs. A hearing will then be held and two disinterested witnesses and the attorney ad litem will give testimony. The Heirship Proceeding is generally more expensive than probating a will and can become expensive, if there are many heirs, minor children or complicated business or real estate assets in the estate. For more information on wills, probate, handling a suit to determine heirship or another estate matter, contact Cynthia Fronterhouse .
Read moreWhat You Need to Know about Wills and Probate in Texas
Attorney Cynthia Fronterhouse shares the key things you need to know about wills and probate in Texas. There are four estate planning documents that every adult in Texas needs to know. Those include: A last will and testament appoints a guardian and establishes a trust. A durable power of attorney appoints an agent to manage your finances. A medical power of attorney appoints an agent to make healthcare decisions on your behalf, if you become unable to do so on your own. A directive to physicians instructs physicians not to use artificial methods to prolong your life. If you have a will and die in Texas, probate is a simple process to distribute your assets. Most Texas wills direct the named executor to pursue independent administration. Independent administration in Texas allows executors and administrators to serve largely independent of court supervision. This means that the executor does not have to post a bond and does not have to ask court permission before taking many steps to settle the estate. Is your will valid? To make a valid will in Texas, you must have a legal capacity testamentary capacity, testamentary intent and certain formalities must be followed. If a will does not meet all the requirements set forth by the statutes, your will unfortunately will be declared invalid, meaning that your estate could be distributed according to statutory formula, rather than the way you would have preferred. What should you do if you are the surviving spouse? In order to ensure that all estate property is fully and efficiently distributed, it is recommended that the surviving spouse probate the will when first spouse dies. Community property residences are generally owned as tenants-in-common. Thus, if the surviving spouse later attempts to sell the home, some form of probate or estate administration must be initiated to transfer the full title on the house to the surviving spouse’s name. If you die without a will, Texas law lays out how the state will be distributed. The disadvantages of dying without a will are many. You don’t determine how your property is distributed. The court will decide who will be the guardian of your children. Your pets may not get the care that they deserve or that you wish for them. It’s a more expensive proceeding if there is no will. You may not get the funeral that you wanted. Remember: The law provides four years to probate a will. After four years, it is costly and timely to do so. Handling of Your Executed Estate Documents Copies: Except for your will, it is always a good idea to have several copies of these documents and keep them at various locations. This ensures that those persons who are helping you will have easy access to the documents they will need, if your health deteriorates. Please note: If you are making additional copies of these documents, please do not unstable the original. Instead, use a copy to make additional copies. Medical power of attorney: Please give a copy of this document to your physician to be included in your medical records. If you are an outpatient at […]
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