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Houston Texas Estate Planning Blog

What is a living trust?

There are many different options you can take in Texas to plan what will happen with your assets when you die. Your estate planning efforts may include something called a living trust, which Forbes explains is just any trust you create when you are alive. This is the opposite of the type of trust created when you have a will. Upon your death, a will sends your assets into a trust that your executor then handles.

If you create a living trust, you have a little more control. You can use the trust to avoid probate issues after our death. It also enables you to ensure that the right beneficiaries get the right assets. Furthermore, it allows you to say how to distribute the assets held in the trust. This is helpful if you have minor children or you want to disburse the funds from a trust over time to a beneficiary. The bottom line is you maintain control even if you are dead.

Why you should try to avoid probate

A will is often the cornerstone of any comprehensive estate plan, but does that necessarily mean it is the best estate planning tool? Our Texas estate planning attorneys appreciate wills for what they can do, but we also recognize the many things they cannot do. One such thing is avoid probate. At Doehring and Doehring, we help clients craft estate plans that reflect their overall estate planning goals, as well as how they hope to help their loved ones.

Part three of a seven-part series shared by Forbes titled details why you should avoid probate if at all possible. One reason is the cost and delay of probate. Though some states have incorporated less costly and more efficient probate procedures, in most, the costly and time-consuming process of yore remain.

What if your die without having prepared a will?

The need to prepare a will is one that is stressed time and time again by estate planning experts in Houston. Yet despite this advice, some estimates put the percentage of American adults without a will as high as 60 percent. You might think that if do not specify how you want your assets distributed, your heirs can make that decision once you are gone (allowing you to avoid hurting anyone's feelings with your decisions). The truth is, however, that if you die intestate (without a will), it is the state that decides who benefits from your estate. 

The topic of intestacy has been introduced on this blog before; this post will delve further into the details of who gets what if you do not specify it in a will. According to Section 201.002 of Texas' Estates Code, your surviving spouse inherits your entire personal estate. If, however, you also leave behind children or grandchildren, then your spouse will receive one-third of your personal estate while the remaining two-thirds is divided equally amongst your surviving issue. As for whatever land you may own, your surviving spouse retains a life estate of one-third its value, with the remaining going to your children or grandchildren (your spouse would receive a life estate of half the land's value if you have no other heirs, and would inherit the other half due to the state's rules of descent and distribution). 

Defining undue influence in Texas probate law

In the most basic sense of the law, and according to Cornell Law School's Legal Information Institute, "undue influence" occurs when one party of a contract puts the free will of another party into question and therefore, leads to the courts declaring the contract unenforceable and voidable by the victim. To prove undue influence, the victim party has the burden of proof to show that he or she has a weakness which makes him or her more likely to be affected by persuasion. Moreover, the victim party must also prove that the influencer has a special relationship with the victim that makes the victim more susceptible to persuasion.

According to the Dallas Bar's "Basics of a Will Contest and How To Avoid One," undue influence in regards to the creation of a will is one that undermines or overpowers the mind of the decedent at the time he or she signed the probate documents. Without this influence, the decedent would not have signed the document in question. 

How to retain homestead protection

In Texas, all homeowners receive homestead protection, a policy that marks your home as an exempt asset to prevent creditors from using it for the repayment of debts.

Because your home is a very important asset to protect, it's important to understand the in's and out's of what homestead protection covers. From there, it'll be easier to set up an estate plan that protects other important assets.

Understanding the different parties in your estate plan

Planning your estate in Texas may appear incredibly confusing when you hear the words "trustee," "executor," and "heir," flying at you. In reality, each of these parties will play an important role in seeing that your assets and possessions end up exactly as you desire. At Doehring & Doehring, Attorneys at Law, we have helped many families to decide how to proceed with estate planning, as well as help them put together a customized plan that meets their needs. 

While you are the main visionary in terms of designating where you want to see all of your assets end up, there will be a lot of other people who help you execute your will the way that you have envisioned. According to Fidelity, one of the designations you will need to make is to name a guardian who will be responsible for assuming the care of your children and any other dependents who are underage in the event that you pass away. 

Examining no-contest clauses

People in Houston are encouraged to thoroughly plan out the administration of their estates in order to avoid contention and discord from arising amongst their beneficiaries once they are gone. No one wants their passing to push their family members and friends apart; rather, they want to such parties to come closer together following their departure. Yet no amount of planning is guaranteed to satisfy all those who might be party to one's estate. One might think, then, that the only way to avoid contention over their estate is to eliminate the potential for it altogether. 

Per data shared by the Texas Judicial Branch, the state's probate courts heard over 15,100 cases unrelated to standard administrations in the 2014 fiscal year alone. That accounted for over one-third of their entire volume of cases. Among those had to include a good number of disputes and contests. One who does not want to see their estate case end up in such a situation may consider including a no-contest clause in their will. Such a clause would effectively disinherit a beneficiary if they decide to challenge the provisions of a will. Such clauses are typically meant to serve as deterrents to potential legal action amongst those that one might worry about seeking such action over their stake in an estate. 

What are Texas intestacy laws?

Some people may think that because they don't have many assets, they may as well forgo the process of writing a will. However, if you have any assets that are not covered in a will, it becomes the job of the Texas probate court to distribute those according to the intestate succession laws. These override any wishes you have unless you have an official estate plan.

Say, for example, that your most significant asset is a vehicle that you purchased shortly after you married for the second time, and you would like your son from your first marriage to have it. According to the Texas statutes, your spouse shares any of the assets you purchased or earned during your marriage because of the state's community property law. However, your spouse would not become the sole owner of the vehicle upon your death. Instead, he or she would receive one-half of the estate, and your son would receive the other half. The probate administrator may have to sell the vehicle in order to divide the asset equally.

Informing your estate lawyer about health issues

Even though a large portion of Texas citizens do not commit to estate planning, many residents are heavily encouraged to do so that their property can end up in the right hands after unpredictable circumstances. Part of why most Texans refuse to begin estate planning is because they do not want to think about their death and instead desire to focus on the present and near-future.

An estate lawyer’s job is not to make you uncomfortable, but to make sure you are ready. They will ask you several questions to help you prepare for multiple scenarios, but one that might make you wince is if they ask you about any potential health issues you could get or if you have family history of a certain disease. While it may not seem relevant at the moment, it can be crucial information for an estate planner to know to properly prepare your asset division.

The fiduciary role of a personal representative

Being named the personal representative of a Texas estate comes with many responsibilities. While anyone can make a mistake, serious errors in judgment that negatively affect the assets of the estate could lead to a lawsuit. In fact, a personal representative may be held personally liable for the damages the error caused. 

With this in mind, it becomes extremely important to understand exactly what the fiduciary relationship between the representative and the beneficiaries is and what the role entails before accepting the responsibility.

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Doehring & Doehring Attorneys at Law
2000 S. Dairy Ashford Street, Suite 298
Houston, TX 77077

Phone: 866-456-2361
Fax: 281-497-8630
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