Digital assets are playing an increasing role in the estate planning process. Despite their growing prevalence, digital assets are often overlooked by many people as they begin to organize their estates. Below is a look at the reasons why it's so important to have a plan in place for your digital assets and three simple steps you can take today to get the process started.

What Exactly Is a Digital Asset?

"Digital asset" means an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record." - Texas Revised Uniform Fiduciary Access to Digital Assets Act 

Before diving into digital estate planning, it's helpful to know what constitutes a digital asset. In a nutshell, the term refers to an electronic record that belongs to a person. As the world continues its digital evolution, many people have multiple types of digital assets. The majority of these can be classified as one of the following four types: 

Personal Assets

If you own a computer, smartphone, tablet, or another digital device, then you likely have personal digital assets stored on your device. Examples include anything you have uploaded or downloaded and stored, such as documents, email messages, text messages, photos, and even music playlists. 

Financial Assets

A growing number of Americans use virtual currencies. Examples include Bitcoins, Linden Dollars, and Peercoins. Other financial assets to consider include accounts with mortgage providers and utility companies.

Business Assets

If you operate a business and have important or confidential information stored online, then this would be considered a business asset. Examples include addresses, phone numbers, and other identifying information about customers or patients. Spreadsheets containing a company's business plan or performance data would also be considered a business asset.

Social Media Assets

The social media sites you have are considered digital assets. Examples include Facebook, Twitter, LinkedIn, YouTube, Pinterest, and Reddit. Depending on the nature of these sites, they could generate revenue through sales or advertising, thereby boosting their worth. Many people store photos, information, and videos on these sites as well.

Why Do You Need an Estate Plan for Your Digital Assets?

You may wonder why it's so important to prepare a detailed plan for your digital assets - especially if you don't have very many. However, having a plan in place now can make things a lot easier for your loved ones and other beneficiaries in the future. Here are just a few reasons why you need an estate plan for your digital assets:

Reason #1: To Make Things Smooth and Seamless for Your Family and Beneficiaries

If you have ever tried to gain access to another person's email if you don't have that person's ID and passcode, you likely know you are fighting an uphill battle. Gmail, Yahoo!, and others have a strict obligation to protect users. Without the proper information and credentials, your relatives and beneficiaries could possibly find themselves facing a lengthy court battle in an effort to gain access to your email. By having a plan in place and organizing your information, you make it easier for your loved ones to handle your digital assets.

Reason #2: To Prevent Expenditure of Time and Money

The last thing most people want is for their loved ones to have to spend time and money handling their estate after they pass away. But without a detailed plan for your digital assets, your loved ones could be faced with unplanned and unwanted court expenses. Dealing with the court system can also be time-consuming and unpleasant, highlighting the need to have a plan in place.

Reason #3: To Avoid Financial Loss

If you regularly handle online transactions and suddenly pass away or become incapacitated, the payments may stop due to your lack of responsiveness. But if you have an estate plan that specifies a person to step in and handle these transactions, you can help prevent financial loss to your estate. Designating a person to handle your online accounts is also important because any outstanding fees can be paid without accruing interest or fees that could erode your estate.

Reason #4: To Prevent Confidential Information From Being Released

Many people have secrets and private information stored on their devices. The only way to safeguard against the release of this information is to specify who you wish to handle your electronic documents, email, and other confidential online assets. 

What Are Some Common Myths About Digital Estate Planning?

Despite the many reasons to focus on digital estate planning, many Americans neglect this aspect of their future. Sometimes this occurs due to procrastination or oversight. But in other cases, people simply don't treat it as a priority. Here are a few common myths that cause people to put digital estate planning on the back burner.

Myth #1: "I Don't Have Any Digital Assets."

While it is technically possible that you don't have any digital assets, the likelihood is extremely slim. For starters, if you are among the nearly 80% of Americans with a social media account, then you already have at least one digital asset. And if you also own a personal computer, tablet, or smartphone, then you likely have multiple digital assets.

Myth #2: "My Information Is Safe and Sound on My Personal Computer."

You may think your information is safe and sound on your computer. But in reality, there is always a risk that your information may fall into the wrong hands - even if you are the only person who knows your passwords. Digital Assets and Special Needs Planning cautions that computers and paperwork can be stolen and encryptions can be broken. Hackers can also gain access to your digital information. 

Myth #3: "My Children Know Where My Passwords Are, So They Can Sort Through Things if I Pass Away."

Passwords can easily be changed or lost, making it difficult to access your online information. And even if your children are able to access your digital assets, they may have no idea how to carry out your wises without an estate plan that specifies exactly how you want them to handle each asset. This lack of a plan can potentially lead to confusion and disagreements.

What Three Steps Can You Take Today To Get a Plan Started?

Clearly, there are many reasons to have a detailed estate plan for your digital assets. But if you are like many Americans, this task may sound overwhelming or you simply may not know where to start. Fortunately, putting yourself on the path to a comprehensive estate plan is easier than you may think. Below are three simple steps you can take today to get the process started.

1) Make a List of Your Digital Assets

Carve out some time to sit down and make a list of all of your digital assets. Be sure to include your login information, IDs, passwords, and any other details required to access your computer, email, and all online accounts. Be sure to keep this list in a secure location and provide a copy to your attorney or a trusted relative.

2) Think About What You Would Like To Happen To Each Asset

Now that you have a list of your assets, it's time to think about how you would like each of them to be handled if you should pass away or become incapacitated. While this task may seem simple, remember that some of your digital assets may have a monetary value to them. In these cases, you'll need to specify who you would like to manage them and how you would like to distribute any associated cash values.

3) Contact an Estate Planning Attorney

Once you have organized your digital assets, it's wise to contact a lawyer. A skilled lawyer can review your list in detail with you and ensure it's complete. They can then help you create a digital estate plan that will be recognized as valid in the state of Texas. It only takes a few seconds to call or reach out to an estate planning attorney online. Many top estate planning attorneys offer complimentary consultations, so there is no excuse for delaying this step.

What Is the Key to a Solid Estate Plan for Your Digital Assets?

Crafting an estate plan for your digital assets is critical to ensuring that your private information does not fall into the wrong hands. The single best way to ensure that you craft a solid estate plan for your digital information is to reach out to a Texas estate planning attorney. With the guidance of an experienced legal expert, you can enjoy peace of mind knowing that your digital information is handled according to your wishes. 

Please contact our office for a free consultation regarding your digital assets.

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Probate is a legal process that involves administering a person's estate after death. If an individual has a will and testament, probate will serve to prove the will is legally valid.

With that said, avoiding probate is a top priority for most. The cost of a probate court can be expensive, reducing the overall amount of the estate. Not only that, but the probate process is often time-consuming and leads to a lack of privacy and control over the descendant's estate. Read on to learn more about the probate process and the steps you can take to avoid it. 

When Is Probate Necessary?

There are many situations where probate is necessary. In the case of probate, it's a good idea to hire a probate lawyer to help handle your case and minimize the stress that can come with the process. Here are 6 situations when undergoing probate is required:

1. Lack of Will: If there is no will, a probate is necessary in order to determine the beneficiaries and distribute assets.
2. There's a Will in Place: Many people believe that having a will disregards the need for probate. However, a valid will must go through probate for the estate to be distributed to the beneficiaries.
3. An Issue With an Existing Will: If there is an issue with an existing will, it will need to go through the probate process in order to determine its validity. An issue with a will can include things like mistakes made in the will, fraudulent execution, or the deceased individual made the will when they were not in sound mind. 
4. Assets are Solely in the Deceased Person's Name: If the descendant had assets such as property solely in their name, the estate must go through the probate process.
5. Lack of Beneficiaries: When the descendant doesn't name any beneficiaries, probate is necessary. This is a common situation for deceased individuals with an IRA or 401(k) account and those with life insurance policies. Retirement accounts and insurance policies payout to beneficiaries. When these beneficiaries are not named, the accounts will automatically be probated.
6. Tenant-in-Common: When a deceased person owned property with others, probate is necessary to remove the deceased individual's name and transfer their share of the property to the appropriate beneficiaries. 

How Much Does Probate Cost?

The cost of probate varies greatly. However, probate costs will ultimately depend on the size of the estate. With that said, probate can cost anywhere from 3% to 7% of the total estate value. Here are some costs associated with probate:

• Court filing fees
• Appraiser fees
• Personal representative fees

These fees must be paid before the estate is distributed to the beneficiaries. It's important to note that this could lead to a liquidation of estate assets if it's necessary to raise enough money to pay fees.

In addition to this, assets sold at a gain are liable to income tax, which will further reduce the amount of the estate. Keep in mind, it's also possible that the assets could be sold under its market value or at a loss to raise the necessary money, making the beneficiaries lose out. If you have any questions about the costs of probate, be sure to talk with an experienced probate lawyer.

How Long Is the Probate Process?

Another downside to probate is that the process is often lengthy, which delays the transferring of assets. In general, the minimum time required to complete the probate process is 6 months but is often longer. Here is a general overview of the probate process:

Step 1: Open Probate

Unfortunately, the executor can't just release assets to the beneficiaries. The first step is to open probate by filing a petition with the probate court and authenticating the last will and testament if the descendant made one.

Step 2: Appointing an Executor

If there isn't already an executor of the estate, the judge will need to appoint an executor, also called a personal representative. This person will oversee the probate process and settle the estate.

Step 3: Send Notices

Once an executor has been made, they will need to notify interested parties and creditors. Interested parties are individuals who were named in the will and next to kin. 

Step 4: Assess Estate

The executor will then need to take inventory of the estate by assessing its total value. Assets can be as simple as a checking account. However, assessing assets can be more complex with the inclusion of things like property, jewelry, stocks, and bonds. 

Step 5: Distribute assets 

The executor must carry out will instructions and distribute assets to the rightful beneficiaries. In addition to this, the executor is required to pay off all debts. An executor might also ensure accounts get closed such as retirement accounts. 

Step 6: Close the Estate

Once the assets have been distributed and court and executor fees have been paid, the last step is to dissolve the estate and close the probate process. 

How Can I Avoid Probate?

Avoiding probate can save a lot of time, money, and stress. With that said, individuals should strive to avoid probate whenever possible. Here are a few ways probate can be avoided: 

Name Beneficiaries

One of the easiest ways to avoid probate is simply by double-checking that you've named beneficiaries on all accounts that allow you. Many people forget or avoid naming beneficiaries on their accounts. However, this can create unnecessary problems later on. Here are just some accounts you can name beneficiaries on.

• Bank accounts
• Brokerage accounts
• Life Insurance policies
• 401(k) and pension plans
• IRA accounts

Small Estate

Many states today provide shortcuts to the probate process. Thankfully, one of those shortcuts is designed for descendants who have a relatively small estate.

Every state will have its own laws in regard to what is considered a small estate. In the state of Texas, a small estate affidavit is offered when there is no will and for estates valued at $75,000 or less. A small estate affidavit will require the following information:

• Name and address of the descendant 
• Date of death
• Description of assets and debts
• Name and address of distributees
• Signatures of distributees

It's important to note that the affidavit must be signed by each distributee under Texas Intestacy law who is of legal capacity. In addition, the guardian or any distributee who is a minor or legally incapacitated must sign.

Transfer on Death Accounts

A transfer on death designation allows beneficiaries to receive assets at the time of the individual's death without going through probate. With a transfer on death account, the beneficiaries do not have access or control over the assets while the person is alive. Accounts like Individual Retirement, 401(k), and other types of retirement accounts are TOD. 

POD Designation 

Payable on death is an arrangement between a bank or credit union and a client who wants to designate all of their assets to their beneficiaries upon death. If you have a bank account or certificate of deposit, you can designate a beneficiary to inherit any money on the account after death. This ensures that your bank accounts and certificate of deposits do not end up in probate court. 

Converting an account into a POD is a simple and free process. All that's needed is a form that can be found either at your bank or a credit union. In addition to this, the account holder needs to call their bank to tell them who their beneficiaries will be. The bank will then give the account holder beneficiary designation forms to finalize the process. 

What's the Difference Between POD and TOD?

A POD account focuses on bank assets rather than investment assets such as stocks, bonds, and mutual funds.

Joint Tenancy With Right of Survivorship

If you own property, it's a good idea to consider joint tenancy as a way to avoid the lengthy probate process. This is because property with joint tenancy automatically goes to the surviving owner(s) without going through the probate process.

In the state of Texas, all joint tenants must sign an agreement that can be provided by the bank. Once one owner dies, the new owner will present the form along with a death certificate to the record keeper. A record-keeper could be a bank or a state motor vehicle department. 

Set up a Trust

A trust is a fiduciary agreement that allows a trustee to hold assets on the behalf of beneficiaries. If you have a substantial amount of assets, it's a good idea to consider setting up a trust to avoid probate.

A trust will outline what will be done in regard to asset distribution without the need for direction from the probate court. When you designate a trustee, they will manage your trust and make decisions for your beneficiaries. Here are two types of trusts to consider:

1. Revocable Trust: A revocable trust is also known as a living trust. It allows assets to pass through without the probate process and allows individuals to retain control over assets during the grantor's lifetime. A revocable trust is flexible and can be dissolved at any time.
2. Irrevocable Trust: An irrevocable trust is a type of trust where the terms cannot be changed without the permission of the grantor's beneficiaries. With an irrevocable trust, the grantor has released all rights of ownership of the assets and the trust.

No one wants to go through the probate process. Probate court doesn't just take a significant length of time, its potential costs can really put a dent in the overall value of your estate. Not only that, but probate proceedings are a matter of public records, which means your family matters and private information is open to the public. 

Conclusion

With that said, there are various steps individuals can take to avoid probate. If you are currently planning your estate, consider an estate attorney who can ensure your documents comply with current laws and provide you with legal advice to ensure you can successfully plan your estate. Contact us today to learn more about how we can help you.

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For individuals that are planning their estate, you've probably heard of two terms: medical power of attorney and a living will. These two terms often get confused due to their similar roles. However, while they both carry similarities, there are a few key differences to consider.

If you're currently planning your estate, read on to learn the difference between a medical power of attorney and a living will.

What Is a Medical Power of Attorney?

A medical power of attorney, also known as a health POA, is a legal document that an individual uses to name an agent and give them authority to make medical decisions on their behalf.

Keep in mind that a medical power of attorney is only exercised in the event that an individual cannot make medical decisions for themselves. For instance, if someone is in a coma, the assigned agent will use their medical power of attorney to make decisions moving forward such as with treatment options. For this reason, it's important to choose an agent that you trust to make the best medical decisions for you. 

How Does It Work?

Many people don't expect to find themselves in a situation where they need a medical power of attorney. However, these kinds of situations are more common than you might think. Here are a few situations when a medical power of attorney would come into effect. 

• An individual is in a coma. This could be due to something such as a stroke or brain injury.
• An individual loses the ability to talk due to disease or dementia.
• There is a short or long-term lapse in mental health, preventing an individual from making sound decisions.

If someone is dealing with one of the above issues, a doctor will decide whether a medical power of attorney is necessary. A medical power of attorney ensures that an individual continues to get the best possible care. 

What Can an Agent Do as a Medical Power of Attorney?

An agent serves as the voice for the patient and ensures that the patient's medical wishes continue to be honored. With that said, there are various decisions that an agent will be able to make on the patient's behalf. Here are a few things that an agent is authorized to do. 

• Determine what tests to run on the patient.
• Determine which doctors/facilities to work with.
• Decide when and if a patient should have surgery.
• Choose which treatments will be best for the patient.
• Decide whether to disconnect life support in the event the patient is in a coma.

How Do You Prepare a Medical Power of Attorney?

Assigning an agent as your medical power of attorney isn't as simple as just choosing someone. You must fill out a form to make it binding. In addition, this form must be signed only when you are of "sound mind". 

It's important to note that it's possible to name more than one agent on your form. However, this can cause complications later down the line. For instance, if you ever need to exercise your medical power of attorney, the two assigned agents may not agree on what to do in a crisis. For this reason, it's best practice to choose one trustworthy agent who you confidently feel will make the right medical decisions for you. 

When Should I Make a Medical Power of Attorney?

Making a medical power of attorney is likely not the first thing on your mind, especially if you have overall good health. However, anything can happen, which means it's best to be proactive and have someone in place who can act on your behalf to stay in charge of your health.

The last thing that you want to do is face a serious medical challenge and attempt to quickly assign an agent to be the medical power of attorney. Even more, you could potentially find yourself unable to speak without a medical power of attorney in place, leaving you vulnerable.

With that said, anyone who is an adult should assign an agent as soon as possible to ensure they already have a trusted person in place should they ever need it. 

What Are the Benefits? 

Here are 3 benefits of a medical power of attorney to consider. 

1. Ensure Wishes Are Met

If you have any medical wishes that you want to be honored, you can ensure these wishes are met with the help of a medical power of attorney. Your designated agent will make decisions on your behalf to help you receive quality care. 

2. Provides a Peace of Mind

No one wants to find themselves in a situation where they can't make important medical decisions about their life. With that said, having a medical power of attorney in place can give you peace of mind knowing that a trusted person is making medical decisions for your benefit.

3. Removes Stress from Loved Ones

Without a medical power of attorney, it will be easy for your loved ones to become overwhelmed when they realize they have to make medical decisions for you. Leaving serious medical decisions up to your loved ones can be difficult and lead to stress. Assigning an agent who is prepared for the role will alleviate this stress.

What Is a Living Will?

A living will, which is also known as an advanced directive, is a legal document that outlines the type of medical care an individual does or does not want in the event they are not able to communicate their wishes. 

For instance, if someone is unconscious due to an illness, the doctor will consult the living will to determine the next course of action. In this case, the living will might specify whether the individual would like to receive life-sustaining treatment such as tube feeding. 

How Does It Work?

A living will is an advanced directive that only comes into play when an individual is facing a life-threatening condition and is not able to communicate the kind of care they would like to receive. It's important to note that a doctor will not consult a will if the patient is only receiving standard medical care. 

If you are creating a living will, you will need to answer a few important questions for yourself regarding your care. For instance, it's important to consider what treatments you want or wouldn't want to keep you alive. In addition, it's important to consider whether you would want treatment to extend your life in any situation. 

The doctor and the hospital will use the information you specified in your will to honor your medical wishes to the best of their ability, even if you are unable to voice your desires.

How Do You Prepare a Living Will?

You do not need a lawyer to make a living will. However, you may find it easier to have a lawyer draft one up for you. It's important to note that every state has its own requirements for a living will, which means you will need to fill out a form for your state and follow the guidelines in order for it to be accepted. You should be able to find a form at places such as a local hospital or senior center, your primary physician, and your state's medical association.

When Should You Make a Living Will?

There is no particular timeframe of when an individual should make a living will. However, every adult can benefit from having one. With that said, there are instances where having a living will is especially important.

Individuals living with a terminal illness should have one in place. Similarly, individuals who are about to undergo surgery could benefit from having a living will. 

What Are the Benefits?

Here are 3 benefits of a living will to consider.

1. Autonomy Over Your Health

One of the main benefits of having a living will is that you can voice your desires regarding treatment that you would like to be administered or be withheld at the end of life. Doctors are required to comply with their patient's requests as long as it fits within a reasonable scope of their medical practice. With that said, you can feel peace of mind knowing that the doctors will work to the best of their ability to adhere to your wishes.

2. Reduce Family Burden

If an individual does not have a living will in place, the doctors will turn to the next of kin to determine medical decisions. If these decisions are a matter of life and death, this can place a burden on your loved ones who may not be prepared to make these kinds of decisions. Having a living will means that your loved ones won't have to make any unexpected choices regarding your health.

3. Flexibility

Another benefit of a living will is that they are flexible. This means that you can change your mind at any time regarding your medical wishes. If you want to revoke your living will, all you need to do is simply destroy it or write a new one. 

Conclusion

Effectively planning for end-of-life or critical care decisions early on is important. You don't want to wait too late to make decisions pertaining to your medical needs. With that said, both a medical power of attorney and a living will are useful legal documents to have in place. A living will is utilized by doctors when it's time to make life-prolonging medical treatments. Ultimately, a living will outline whether a person should be resuscitated, whether an individual wants to be kept on life support, and whether an individual would like to die naturally.

A medical power of attorney, on the other hand, relies on an agent to make medical decisions for the individual in the event they are incapacitated. By assigning a trustworthy agent, you can ensure that someone is working on your behalf to ensure your medical needs are met. 

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When a loved one passes, it's a difficult time for you and your family. As you mourn their death, you may find it challenging to undertake the deceased estate's management. Several legal processes take place to ensure the legal distribution of property and assets. These processes, while complex and lengthy, are essential to you and other beneficiaries.

Several procedures occur to ensure the legality and validity of the decedent's will and the identification of the deceased property. It's also essential to pay debts and taxes owed and distribute a decedent's estate among legal beneficiaries. This process is known as probate, and it happens when a person dies and leaves the property.

The probate process varies state by state and may also change depending on the existence of a will. Usually, when a person passes, the executor named in the will, or the administrator appointed by a judge files papers in a Texas probate court. The executor has to find and secure the decedent's property, record all taxes and debts to pay them off, and notify all family and creditors of the decedent's official passing.

However, not all inheritance processes go through probate. The laws allow for the property to go through simplified probate and other processes. If you're unfamiliar with the probate procedures in Texas, read on to understand.

What Is Probate in the State of Texas?

When an asset-holder passes and leaves property behind, several rules affect the distribution of the estate. Probate takes over when the property to be inherited is not under a trust, joint ownership with right of survivorship, or a direct payment to the heirs. Any property outside these guards usually goes through probate administration.

The Texas probate process allows the courts to intervene to confirm a person's death, identify their property and assets, discharge debts, and ensure proper distribution of inheritance to the beneficiaries. If you're about to go through the probate process, you may interact with several terms.

• Decedent: The person that has passed, and the estate owner.
• Will: The Last Will and Testament is the legal document that details the decedent's wishes on the distribution of their assets.
• Beneficiary: A person named in the will as a recipient of the decedent's assets, or one identified by the court if there is no will.
• Executor: A person named in the will to oversee the winding up of an estate, by cataloging the assets, paying off debts and taxes, notifying heirs and creditors, filing probate paperwork, and distributing assets among beneficiaries.
• Administrator: A person appointed by a probate court to oversee the winding up of a decedent's estate if there was no valid will and executor.

What Are the Different Ways to Probate a Will in Texas?

Different probate processes take place if the decedent has a will or no will. The process may also vary depending on the size of the estate or if there are disputes.

1. Independent Administration: This is the process that first jumps to mind when probate is explained. It is the usual route when a deceased person has a valid will and has named an executor for their assets. Once the executor has the court's go-ahead to wind up the deceased estate, they have control over property identification, payment of debts and taxes, and distribution of assets. This process does not require a Texas court oversight or the payment of a bond. However, after winding up, the executor files a final report with the courts.
2. Dependent Administration: You're probably wondering what happens when a loved one dies and has no will. In instances where a decedent has no valid will, the court appoints an administrator to wind up the decedent's estate. The administrator may be one of the decedent's primary heirs. However, the administrator does not have free will as a named executor and has to answer the courts in each step. This process also requires the payment of a bond.
3. Muniment of Title: A reasonable and straightforward way to probate a will and Texas is through Muniment of Title. In this process, a valid will exists, the decedent's estate has no debts, but the court does not appoint an administrator or executor. Instead, the court admits the will into probate as evidence and issues an order used to transfer the titles of property to the decedent's heirs listed in the will.
4. Small Estate Affidavit: When a decedent's assets are collectively worth less than $75,000 (excluding the homestead property and exempted assets), and there's no will, the heirs can file a small estate affidavit to allow the distribution of property without the formal probate process.

What Is Independent Administration in Texas?

The independent administration process in Texas begins when a person files an application with a probate court in Texas. The application includes details such as the decedent's name, the date of passing, the decedent's address, the names of their beneficiaries, and a copy of the decedent's will. Once the application is complete, the court clerk announces the beginning of the probate process by posting a public notice in the courthouse.

After two weeks, the person who applies can appear before a judge in a Texas probate court. Usually, the decedent names a person in the will to serve as the executor upon their passing. The executor can then start the probate process by making the application in court.

During the hearing, the judge determines if the named executor is fit for their role. If they are, they take up the duties of executing the decedent's estate. This includes identifying the decedent's property keeping it safe, paying all debts, and sharing the estate among the heirs. In most cases, executors have a lawyer to represent them in probate court. This is because an executor has a duty to the decedent and several heirs. While this is not mandatory, it helps with the probate process.

Any mortgage payments, Medicaid claims, and household expenses are paid from the estate. However, the executor or administrator notifies the creditors of the decedent's passing before paying any debts. The creditors can then file claims against the estate if there are unresolved debts.

During the court proceedings, the judge also takes a look at the will to determine its validity. If the last will fails to meet the requirements for validity, the judge can dismiss it. However, when a will passes, the court issues Letters Testamentary and Grant of Probate to the executor to proceed with winding up the decedent's estate.

Lastly, if any family members contest the will, the probate court must listen to their claims before the estate is wound up. Texas allows you two years after the grant of probate to protest a will. For cases where there is no will, you can contest after the issue of Letters of Administration. 

What Is the Timeline for Probating a Will in Texas?

In Texas, an executor has four years from the decedent's death to file for probate. When this period lapses, the court assumes that the deceased passed intestate, that is, not having made a will before death. The rules of intestate succession in Texas then apply.

However, the Muniment of Title allows an exception. You can apply for probate after four years when using this form of probate in Texas. Generally, the probate process can last for months or years, depending on the estate's size and disputes.

What Property Is Included in the Probate Process in Texas?

A decedent's estate includes several items such as:

• The cash they had upon death
• Real estate property
• Property such as vehicles, boats, jewelry, and books

Assets such as life insurance policies and retirement accounts with a named beneficiary do not go through probate. The named beneficiary contacts the institution directly to organize the transfer. Also, property under a trust is distributed by a trustee, while property in joint tenancy with right of survivorship goes to the other owner. 

Can I Avoid Probate in Texas?

Probate court proceedings can be long and tiring. Finding ways to reduce the length, cost, and disputes in the process can help you carry on quickly. You can avoid the probate process by:

1. Creating a living trust: When you create a trust, you catalog your assets, appoint a living trustee (a person who takes over your property after your passing), and transfer all ownership of your property to yourself as the trustee. You should also set the terms, such that, after your passing, your trustee distributes the estate among beneficiaries according to your wishes.
2. Using joint ownership: Owning property jointly with the right of survivorship with someone, such as a spouse, allows the transfer of property to them after your passing.
3. Payable-on-death (POD): You can register your bank accounts for POD to allow your beneficiary to gain ownership after your passing.

Do I Need a Probate Lawyer In Texas?

Probate is a common way to distribute a decedent's estate and settle any debts and bills. However, it can be complicated, especially to anyone new to the ways of the probate courts. Hiring a probate attorney in Texas helps you understand the probate process and identify if you need to go to probate court.

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Losing a loved one is extremely difficult for any family. However, while the time following a family member's passing should be spent grieving, the reality is that there are a variety of steps that heirs will have to take to manage their loved one's estate. This process can be particularly complicated if one dies without a will or any other type of estate plan (this is formally referred to as dying "intestate"). 

Traditionally, when someone dies intestate, their estate will have to go through probate court. Probate ensures that a deceased individual's estate is distributed to their legal heirs in accordance with the estate laws in their state of residence. However, probate can be a lengthy, expensive, and stressful process that can place an unnecessary burden on families during an already difficult time.  

Fortunately, Texas offers shortcuts and alternatives to the probate process for small estates. These legal processes speed up and simplify the process of transferring assets from a decedent to their heirs without having to deal with formal probate proceedings. If your loved one left behind a relatively small estate, you may be able to use a process known as a small estate affidavit to avoid full probate. If you are unfamiliar with small estate affidavits, read on for answers to the most frequently asked questions we receive about this process.   

What Is a Small Estate Affidavit?

Of course, the first thing that you may find yourself asking is what a small estate affidavit is. A small estate affidavit is a form one can complete to speed the settlement of a small estate through probate, and in some cases, it may allow you to bypass the probate process altogether. For the purposes of filling out a small estate affidavit, a small estate is considered to be an estate with a value of $75,000 or less. 

With these small estates, if a deceased individual died intestate, an inheritor can use a small estate affidavit to transfer assets from their loved one's estate to their heirs. All an inheritor has to do is prepare a document stating their legal claim to a certain asset, which is then signed under oath, allowing the estate's assets to be easily transferred to the deceased individual's heir(s). (Keep reading for more information on the process of filing a small estate affidavit below). 

It is important to note that the $75,000 limit pertains to the value of a decedent's probate estate. The probate estate consists of property and assets titled in the decedent's name excluding the value of the homestead, assets placed in a trust, assets that transfer by payable-on-death accounts, and other exempt property.

When Can a Small Estate Affidavit be Used?

While a small estate affidavit can be an affordable way to easily transfer property to a decedent's heirs, an estate must meet certain criteria in order for a small estate affidavit to be used. In addition to an estate needing to have $75,000 or less in assets, to qualify for a small estate affidavit in Texas an estate must meet the following requirements:

• The decedent died without a will.
• Thirty days have passed between the date of death and the filing of the affidavit.
• The decedent left less than $75,00 in a property (not including homestead property and exempt property).
• Assets in the estate are worth more than their debts. (This excludes debts secured by the homestead and exempt property).
• The only real property owned by the deceased was their homestead property, and the homestead property will be inherited only by the decedent's surviving spouse and children who resided on the property with the decedent at the time of their death. 
• You are able to contact all of the deceased's heirs, and all of the heirs will be signing the small estate affidavit (or someone with legal authority will sign on their behalf).
• There must be no petition for the appointment of a personal representative of the estate pending or granted. 

In addition to meeting the above requirements, an estate must not have already started the probate process in order for a small estate affidavit to be used.  

What Is Exempt Property?

When trying to determine if you can use a small estate affidavit when handling a loved one's estate, it is important that you know what property is exempt from the $75,000 property value limit. In Texas, the exempt property includes:

• The homestead for the use and benefit of the decedent's surviving spouse and minor children.
• Up to $100,000 (for a family, $50,000 for an individual) of qualifying property used for the benefit of the decedent's surviving spouse, minor children, unmarried adult children living and home, and adult children who are incapacitated. Examples of qualifying property include:
  • Home furnishings, including family heirlooms
  • Food
  • Farming or ranching vehicles and equipment
  • Tools, equipment, books, and vehicles used in a trade or profession
  • Clothes
  • Limited amounts of jewelry
  • Two firearms
  • Certain livestock
  • Household pets

Exempt assets also include the deceased's pension benefits and IRAs as well as any insurance benefits. However, determining which property is exempt can be complicated, which is why it can be helpful to talk to an attorney if you are ever unsure whether or not a property is exempt. 

Who Can File?

If you are considering filing a small estate affidavit, you first must make sure that you are qualified to do so. In order to be allowed to file a small estate affidavit, you must be the party who would inherit from the estate under state intestacy laws. This is usually a spouse or a child, or if the decedent was unmarried and had no children, then it is usually another close relative. If the only heir to the estate is a minor, their appointed guardian or next of kin can file the affidavit on their behalf. If you are unsure whether you stand to inherit from a deceased loved one's estate, do not hesitate to contact an attorney to learn more about intestacy laws in Texas. 

What Is a Decedent?

When handling a loved one's estate, you may hear or see the word "decedent" used and find yourself wondering what it means. When handling estates, "decedent" is the term used to refer to the person who has died. Courts and court documents will frequently use this word in place of the deceased individual's name when referring to the person who has died. 

What Is a Homestead?

When dealing with Texas intestacy laws and trying to determine if you can use a small estate affidavit, you will likely come across the word "homestead" when researching an exempt property. Yet, you may find yourself asking what a homestead is, and how you will know if a property is considered a homestead. A homestead is a place that is lived in and owned by an individual (not a company) and includes a separate (stand-alone) structure, a condominium, or a manufactured home. A homestead can be located on owned or leased land as long as the person that lives there owns the home. A homestead can also include up to 20 acres of land if the land is used for residential purposes. If property owned by the decedent is a qualifying homestead, then you may be able to use a small estate affidavit. However, small estate affidavits do not transfer real property other than a homestead, so if the decedent owned any real estate other than a qualifying homestead, a small estate affidavit cannot be used.    

What Is the Process of Filing a Small Estate Affidavit?

Each county in Texas has its own specific form for filing a small estate affidavit, and they will have guidelines as to how the affidavit should be filled out. Make sure to obtain the affidavit form from the website or office of the probate court in the county in which your loved one resided. While each firm will be slightly different, they will likely all require the following information:

• The name and address of the decedent
• Their date of death
• Proof that the conditions of a small estate are met
• A list of all estate assets and debts including information identifying exempt assets
• Names and addresses of heirs who will benefit from the estate
• Relevant family history regarding heirship
• Signatures of these heirs or their representatives

Before submitting the affidavit, you will need to have it signed by two disinterested witnesses who have no legal right to inherit the property. The affidavit will need to be notarized, and a judge must approve of it before it can go into effect. Once the affidavit has been court-certified, you can use it to take possession of the estate's assets in order to pay the estate's debts and distribute the remaining assets.  

Do I Need a Lawyer to Help with a Small Estate Affidavit?

Small estate affidavits are becoming a popular way to quickly and affordably settle an estate. While you can file the affidavit on your own, small estate affidavits can be complicated, and you could benefit from talking to an attorney if you are unsure what property is exempt, you need help filling out your form, or you want support preparing for a hearing or enforcing the affidavit. 

Feel free to contact us to learn more about small estate affidavits as well as to find out how we can help walk you through this difficult and confusing time.  

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If you are like the majority of residents in the Lone Star State, you don't have a will. And if you don't have a will, you probably haven't given too much thought to an estate planning strategy. The good news is that estate planning is usually a lot less complicated than it sounds. Below is a look at the key role of estate planning and some important points to consider as you create a will and plan for your future. 

Why Is Estate Planning So Important?

"I think many Americans avoid setting up a will because they simply don't want to think about their death. However, setting up a will not only takes care of your loved ones financially, it can save them a lot of emotional stress after you're gone." - Craig Dacy, Financial Coach, Austin, Texas

Estate planning is critical for a variety of reasons. But for most people, the value of estate planning lies in the protection their loved ones receive. By preparing a will, you can ensure that your children are cared for by people you designate and your assets are dispersed according to your wishes. Here is a look at just a few reasons why you should have a will:

• Reduce stress for your loved ones. Estate planning can eliminate uncertainty and stress that could arise if you pass away without a will.
• Minimize delays. With a will in place, the process of settling your estate will flow more smoothly and take less time. 
• Eliminate confusion about your assets. When you pass away, distributing your assets becomes much easier if you have a will and plan in place.
• Save money. Estate planning helps you reduce or eliminate taxes that your beneficiaries may otherwise have to pay.

Who Needs an Estate Plan?

Every adult needs an estate plan. If you are 18 years of age or older, you should set aside some time to begin planning for the future. The planning process becomes even more important if you have a spouse, parents, children, or other loved ones you long to protect.

What Are Some Common Myths Surrounding Estate Plans?

Myths often stand in the way of sound estate planning. They can also become convenient excuses to delay the planning process. Here are some examples of myths that often derail estate planning for many adults:

1) "Young People Don't Have to Worry About Estate Planning."

Adults in their 20s, 30s, and 40s often feel like they are invincible. And they are often so focused on their careers, children, homes, and aging parents that estate planning ranks very low on their priority lists. In reality, changes in your marital status, career, and family size are all good reasons why you should put a plan in place right now.

As your assets continue to grow, it's important to make sure they will end up in the hands of your loved ones. After all, you worked hard to accumulate property and build a family. But those assets could end up being managed and distributed by unknown legal authorities if you pass away without the proper estate planning documents in place.

2) "If You Don't Own a House or Have Much Money You Don't Need an Estate Plan."

Some people think that it's pointless to have an estate plan if they don't own a house or have a lot of money in the bank. Another misguided notion is thinking that you can avoid planning since you don't have any children or a spouse to inherit your assets.

In reality, every adult has an estate - even if that estate is a modest one. For instance, you may have a car or bike that you would like to leave to niece or nephew. Or, you may have a small retirement account that could make a big difference to a local charity you feel passionate about.

3) "People in Good Health Can Think About Estate Planning Later."

If you are lucky enough to be living a healthy, active lifestyle, you may feel that estate planning is something that can wait. But your health and well-being can change in a matter of seconds. It only takes one unexpected medical diagnosis or one injury to forever change your life.

While all of us aspire to live long healthy lives, it's best to be prepared for any and all potential health challenges. Rather than waiting until your health starts to decline to focus on estate planning, carve out a little time to get your affairs in order now. 

4) "Estate Planning Takes a Long Time."

The concept of estate planning sounds intimidating and time-consuming to many people. But the truth is that the process often takes a lot less time than people think. Today's top estate lawyers in Texas will tell you exactly what you need to be prepared for your planning meeting.

If you arrive on time and ready for your meeting, you may be able to take care of the key aspects of your plan during a single meeting. And depending on your individual situation, you may even be able to receive a completed draft of your will within 48 ours.

What Can Happen If You Don't Have a Plan?

The consequences of not having an estate plan can prove to be devastating to your loved ones. Unfortunately, by the time these consequences unfold, it will be too late for you to take action. Here are just a few of the unpleasant challenges that may arise if you don't have an estate plan:

• Your money and property could end up in the hands of people you would never choose
• Your children and pets could end up in the care of guardians who don't share your values
• A person you don't trust could end up deciding how your money will be allocated
• Your favorite charity may end up not receiving any of your estate
• Your loved ones could end up facing costly taxes or legal fees associated with your estate

In addition to these potential problems, your loved ones could find themselves waiting months or even years for final decisions to be made about your estate. Rather than face the possibility of these potential consequences, you can prevent them by beginning the planning process today.

When Should You Begin the Planning Process?

Today. Far too many Americans put off the estate planning process, often citing excuses about being too busy or being too young to think about the prospect of death. You can set yourself apart from the 60% of Americans who don't have a will by making the future a top priority. You can get the process started today by reaching out to a Texas wills and estate planning lawyer.

What Are Some Common Estate Planning Mistakes and How Can You Avoid Them?

Now that you have decided to plan for your future, you may feel that you are well on your way to an invincible estate plan. But there is more to estate planning than making up your mind to put a plan in place. And if you forge ahead without being careful, you can fall prey to one of these common estate planning mistakes:

1) Creating a Will Without Professional Guidance

Advances in technology and do-it-yourself websites have made it possible for virtually anyone to create their own will online. And while using online resources is better than not having a plan, you leave yourself vulnerable to planning errors and omissions. For example, you may create a will that turns out to be invalid because it is not properly witnessed or lacks a signature. The best way to avoid these pitfalls is to work with an estate lawyer.

2) Not Naming an Executor in Your Will

Texas law does not require you to name an executor in your will. However, failure to designate an executor in your will may cause your loved ones to face lengthy probate delays and costly legal fees as your estate details are sorted out. A legal advisor can help you select an executor who you trust to work professionally with your beneficiaries.

3) Failing to Revisit Your Plan From Time to Time

Estate planning should not occur in a vacuum. You should view your estate plan as a work in progress that you should review and update from time to time. In addition to reviewing your plan once per year, you should revisit your plan when you experience a life changing event such as one of the following:

• A marriage, divorce, or marital separation
• A life-threatening illness or accident
• The birth of a child or expansion of your family
• The death of a spouse or other close family member
• Acquisition of new properties

What Is the Key to a Bulletproof Estate Plan?

Mapping out an estate plan is one of the most important things you will do in your life. While the process can be intimidating, you can avoid common missteps by seeking the guidance of a Texas estate planning attorney. With an experienced legal expert in your corner, you can rest assured that your plan reflects your wishes and is compliant with Texas laws.

We invite you to contact us at R. Dean Davenport Attorney at Law to schedule a complimentary estate planning consultation. Conveniently located at 2150 S. Central Expressway in McKinney, Texas, we make the estate planning process simple and pleasant for our clients. We work hard to deliver quality service and give you the peace of mind you deserve as you plan for your future. We look forward to helping you prepare a bulletproof estate plan!

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Do you take time to think about the need for asset protection? Probably not! Protecting your hard-earned wealth for the sake of your dependents and other beneficiaries is critical. That is possible through careful planning. If you have money in different types of accounts, insurance, or a business, you are already engaging in some sort of asset protection planning.

The next question here is whether you need a more comprehensive, deliberate, coordinated asset protection plan than what you have at the moment. If that is the case, you need to consider the options that will help you achieve this goal. But before that, here is what you should know about effective asset protection.

Amount of Control

The amount of control over your asset that you give up will dictate the level of protection you can achieve. That implies that putting your assets into a revocable trust that you control and of which you are a beneficiary is impossible. The reason is that a court will not overlook such assets to satisfy a judgment against you.

Asset Protection

Proper asset protection demands the adoption of several strategies and approaches.

Being reasonable about the number of assets you include in your asset protection plan is not an option. The reason is that you cannot protect everything. As such, your asset protection plan should leave you fully solvent outside the assets you choose to protect. You should also be able to pay any claims. That includes the claims you know and those you should be aware of at the time of shifting your assets.

The ideal time to protect your assets is when there are no imminent threats. You risk a fraudulent conveyance charge when you try to move assets into a spouse's name. Such costs also apply when you seek to establish irrevocable trusts after getting into a situation that may result in a lawsuit.

Here are some of the asset protection strategies that can help you keep a creditor away.

Testamentary Asset Protection Trusts – The Ruling From the Grave

The Testamentary Asset Protection Trust refers to an irrevocable trust available after your death, which serves several purposes according to the categories below.

1. Discretionary Trusts

A Discretionary Trust refers to an irrevocable trust that can develop into an Irrevocable Life Insurance Trust (ILIT). Discretionary Trusts are an integral part of a Standalone Retirement Trust. If you want to protect other assets, you can include a Discretionary Trust for each of your beneficiaries in your Revocable Living Trust.

Setting up a Discretionary Trust

Sometimes, legal prosecution can become part of your worries. On the other hand, an heir may be in a high-risk profession, they may be a spendthrift, managing money may prove a challenge for them, or their spouse may be overreaching. If that is the case, you should consider incorporating Discretionary Trusts into all of the testamentary trusts in your estate plan.

Pros

• Flexible and easy distribution of trust income and capital.
• Estate planning for the benefit of members of the "family group" in the event of an unexpected death.

Cons

• Distribution of funds focuses on profits and not losses.
• The complexity of establishing and maintaining a trust structure.

2. Standalone Retirement Trusts

A non-spouse beneficiary who inherits an IRA cannot access protection from a beneficiary's bankruptcy creditors. As such, the Standalone Retirement Trust becomes a critical vehicle for protecting retirement accounts from the creditors of your beneficiaries.

Setting up a Standalone Retirement Trust

If your kids are the primary beneficiaries of your retirement account with an amount of over $200,000, you need to consider the Standalone Retirement Trust option. Opting for a Standalone Retirement Trust protects your retirement account from your children's creditors after your death.

Pros

• Prevents losses as a result of imprudent spending when beneficiaries gain direct access to the funds.
• "Stretches out" the funds over time to maximize the efficiency of distributions.

Cons

• Beneficiaries lose some level of control over the IRA funds in exchange for the guidance of the trustee.
• One must meet the requirements for minimum distributions. Otherwise, they will incur tax penalties.

3. Irrevocable Life Insurance Trusts

An Irrevocable Life Insurance Trust (ILIT) allows you to leverage generation-skipping planning. Through an ILIT, you can also protect insurance proceeds for the benefit of your intended beneficiaries. Additionally, an ILIT can remove life insurance proceeds from your estate for purposes of the estate tax. That will be over and above the aspect of asset protection.

Also, note that proper planning can provide much-needed liquidity for owners of such illiquid assets like real estate, farms, or closely held enterprises in the case of an ILIT.

Pros

• ILITs reduce your estate tax liability.
• Heirs access protection from creditors.

Cons

• You cannot modify an irrevocable trust.
• Creating an ILIT can be expensive.

Lifetime Asset Protection Trusts – The Idea of Having Your Cake and Eating It Too

A Lifetime Asset Protection Trust refers to an irrevocable trust available during your lifetime, which you can use in line with the following categories.

1. Domestic Asset Protection Trusts

The goals of a Domestic Asset Protection Trust (DAPT) include protecting the trust's assets from your creditors, allowing you to fund the trust with your property, and maintain some degree of interest in the trust as a beneficiary.

Setting up a DAPT

First and foremost, note that the laws governing DAPTs are relatively new, and they are still evolving. Part of the reasons is that there are fewer opportunities for courts to evaluate DAPTs. However, understand that bankruptcy laws allow exposure of trust assets to the claims of your creditors for ten years.

As much as that is the case, a DAPT will prove a reliable asset protection strategy for the right individual.

Pros

• A DAPT can help you avoid probate fees when the settler passes.
• You can change the trust terms if you opt for a revocable DAPT.

Cons

• DAPT is not the best option if asset protection is your goal.

2. Medicaid Planning Trusts

The focus of Medicaid Planning Trusts is helping you and your spouse to;

• Avoid estate recovery. Protection from the government's estate recovery ensures that assets in this trust pass to your heirs. In turn, that will address the issue of dealing with Medicaid benefits that you receive during your lifetime.
• Access Medicaid while protecting a source of income for the benefit of the healthy spouse.

Setting up a Medicaid Planning Trust

Federal and state governments jointly fund Medicaid. Every state has unique rules and guidelines relating to Medicaid eligibility and estate recovery. That implies that a Medicaid Planning Trust should be tailor-made to the laws of the state where you reside. Also, such a trust may be subject to a look-back period of three to five years and not the "disqualification period".

If you want to achieve the most from a Medicaid Planning Trust, you need to work on it at the earliest time possible.

Pros

• Keeps money out of a creditor's reach.
• Eliminates interruption of income and the use of assets after your death.

Cons

• In some cases, your estate may be subject to estate recovery upon your death if you are over the age of 55 years.
• An individual loses a degree of control over their assets. 

3. Spousal Lifetime Access Trusts

"Family Bank Trusts" or Spousal Lifetime Access Trusts (SLATs) act as asset protection and estate tax reduction strategy. A "Lifetime Bypass Trust" is the other term that refers to a SLAT since its funding includes lifetime gifts that remain with a trustee for your benefit and that of your spouse as well. The decisions you make dictate distributions from a SLAT. The same case applies to a Bypass Trust that becomes available after the death of the first spouse.

Setting up a SLAT

If you reside in a state that collects a state estate tax but does not collect a state gift tax, you will discover that a SLAT is useful. The expectation, in this case, is that the state exemption will remain lower than the federal exemption.

Pros

• A SLAT can function as life insurance trusts.
• The trust can grow tax-free.

Cons

• You cannot change the beneficiary interests once a SLAT is in place.

4. Lifetime QTIP Trusts

If you are wealthier than your spouse, a Lifetime QTIP Trust will offer you the following benefits.

• Ensures that the distribution of assets in the trust is in line with the wishes of the wealthier spouse in case both spouses die.
• It makes use of the less wealthy spouse's federal estate tax exemption.
• Offers a lifetime, asset-protected trust for the benefit of the wealthier spouse in case the less wealthy spouse dies first. Remember that this will be subject to the laws of the state where you reside.

Setting up a Lifetime QTIP Trust

Spouses with lopsided estates will enjoy a great deal of flexibility in the case of Lifetime QTIP Trusts. The reason is that as the less wealthy spouse, you will receive all of the trust income. You may access the principal as well during your lifetime. On the other hand, the remaining assets in the trust become part of your estate as the less wealthy spouse in case you die first.

That way, a Lifetime QTIP Trust will make use of the less wealthy spouse's estate tax exemption. Additionally, you can obtain some of the estate tax savings with "portability," but the asset protection aspects will only be available with a Lifetime QTIP. The remaining trust funds can continue in an asset-protected, lifetime trust for the benefit of the surviving spouse depending on applicable state law.

In that case, such trust funds will not be part of the surviving spouse's estate when they die. The wishes of the wealthier spouse will determine the distribution of the trust funds in such situations.

Pros

• The first spouse to die controls disposition.
• Assets remaining in a Lifetime QTIP Trust upon the death of the surviving spouse are not subject to the claims of creditors.

Cons

• Obtaining funds to make tax-advantageous gifts may be a challenge.
• There may be conflicts between the surviving spouse and the remaining beneficiaries.

Conclusion

Asset protection trusts must be irrevocable to safeguard the trust property. However, asset protection trusts still offer the flexibility you need as well as protection for your property and the assets you gift your loved ones or those they inherit. Asset protection planning can be complicated. That explains the reason why you need the help of a capable attorney to identify the ideal trust-based asset protection strategy.

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While estate planning is not something that most people look forward to, taking the time to create an estate plan is critical. It ensures that your family is taken care of when you pass and that your assets are distributed in accordance with your wishes. However, it is particularly important that you create an estate plan if you have underage children. If you were to die unexpectedly, having an estate plan in place will help to ensure that your children are taken care of.   

While both wills and living trusts are beneficial estate planning tools that can help to ensure that your estate is divided in accordance with your wishes, a living trust provides additional protections for underage children, making them the best option for young families. If you are looking to start the estate planning process and you are unsure whether a living trust is right for you, here is a look at just a few of the ways in which a living trust can help to protect your underage children in the event that you die unexpectedly.  

Avoid Probate Court

Perhaps the greatest protection a living trust provides to underage children is that it helps to shield much of your estate from the probate process. After a person dies, their assets become a part of their estate, and their estate must go through probate court in order for their estate to be distributed to their heirs. Even if the deceased had a will, the estate will still have to go through probate in order for the will to be authenticated, and this will also allow a judge to oversee the process of distributing the deceased's assets in accordance with their will.

If you pass while your children are still underage, the probate process can make an already difficult time even more complicated. Even with a will, the probate process can be costly and take months to complete, and during this time your children will not have access to their inheritance. However, your children and their guardian will need access to these funds in order to ensure that they are cared for properly, which is where a living trust can be particularly beneficial. Unlike with a will, assets placed in a trust before your death do not have to go through probate. This means that as soon as you die, your designated trustee can immediately access the assets in your trust to ensure that your children are taken care of properly.    

Ensure Your Assets Go to Your Children

A living trust can also help to protect your children in the event that you predecease your spouse and they remarry. By creating a trust, you can stipulate exactly who has access to your assets and benefit from your estate. In this way, you can ensure that your spouse is taken care of during their lifetime, but you can also stipulate that when your spouse dies that your remaining assets go to your children and not the new spouse. This ensures that your children are protected no matter what happens after you are gone. This can also be beneficial for single parents who plan to marry in the near future and want to make sure that their children are cared for after their death.      

Reduce Estate Taxes

The fact is that you will have worked for a lifetime to earn the assets that you have in your estate, and it is understandable that you will want as much of your hard-earned money to go to your children as possible. However, depending on the laws in your state, and the value of your estate, your estate may be subjected to heavy taxation after you die, reducing your children's inheritance. Depending on the type of trust you choose, a living trust may be able to shield your estate from taxation. In fact, reduced estate taxes is one of the most popular benefits of choosing a living trust, and it can be helpful in ensuring that your underage children have as much financial support as possible after you are gone. However, it is important that you talk to an estate planning attorney to ensure that you take the proper steps to reduce your estate's tax burden.

Adapt to Changing Circumstances

If you have minor children, you may decide that a revocable trust is the best option for your family. As the name implies, a revocable trust can be revoked, which can allow you to make changes to the trust during your lifetime. For families with underage children, a revocable trust can be useful as it can allow you to make changes to your trust and adapt to changing circumstances as your children age. The fact is that what made sense for your family when your children were first born may no longer make sense when they are in high school, and a revocable trust can give you the flexibility to make changes to your estate plan during your lifetime. This ensures that your children are sufficiently taken care of should your family's needs change over time.  

Ensure That Your Children Are Taken Care Of Should You Become Incapacitated

A living trust can be instrumental in ensuring that your children are taken care of should you become ill or incapacitated and are no longer able to take care of your financial affairs. You can use a trust to outline how you want your assets to be managed and your children to be financially cared for in this circumstance. Under the instructions you would have outlined in your living trust, control of your estate could be transferred to your designated trustee as soon as you are deemed incapacitated, allowing for your children to be taken care of financially without the need for the involvement of a judge. Your trustee can begin providing financial support to your minor children almost immediately. Otherwise, a court process would be required to certify your incapacity, and a conservator would be named to act on your behalf.

Designate a Trustee to Care for Your Children's Finances

A living trust also provides you with the opportunity to name a trustee to manage the assets in your trust who will ensure that your children are cared for financially. Even if you have someone in mind who you feel would be a good guardian for your children, it is not always a good idea to have your children's guardian act as trustee as well. With a living trust, you can designate a separate trustee who will ensure that your children's inheritance is being used responsibly, and you can stipulate how much access your children's guardian has to their assets. This will ensure that your children's finances are protected until they come of age.  

Provide Guidance for Older Children

Many parents of underage children also prefer to choose a living trust as this allows them to stipulate when and how their children have access to their inheritance. While minors cannot inherit property or assets until they are 18, many parents may see this as still being too young of an age for their children to manage large sums of money. Without a trust, any money that is left in the estate would become available to your children as a lump sum when they turn 18. If they are not responsible enough, they may blow through this money quickly. With a trust, however, you can stipulate that your children do not have access to their inheritance until a later date, Then, ensure that their care and education is paid for in the interim. You can even specify that your children only have access to specific amounts annually, or that they can only use their inheritance for specific purposes such as education or to buy a house. A living trust gives you complete control over how your finances are disbursed once you are gone, protecting your children from spending their inheritance irresponsibly.   

What Other Estate Planning Steps Should I Take to Protect My Children?

Of course, you may also wonder if a living trust will fully protect your underage children, or if there are other estate planning steps that you should consider taking. One of the main things that a living trust cannot do is designate a guardian for minor children. When estate planning, you will need to create a designation of guardianship for minor children in order to ensure that you have someone to look after your children when you are gone. You may want to consider including guardianship designation in a pour-over will. Having a will in addition to a trust can be important, as adding a pour-over will allows you to make plans for assets that are not including in your living trust, ensuring that your estate is handled according to your wishes once you are gone.

Learn More About How a Living Trust Protects Underage Children

Estate planning is often a difficult process that can be made even more complicated if you have underage children who will need to be cared for and protected in the event that you die unexpectedly. This makes it critical that you work with an experienced estate planning attorney during this process who can walk you through your estate planning options and help to ensure that your children are taken care of after you are gone. Contact us to learn more about the steps that you can take when estate planning to protect your underage children. 

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Across the United States and around the world, many businesses are facing the impact of COVID-19. State and local mandates have closed down many businesses. Many clients are also choosing to self-isolate, either because they believe they may have been exposed or because they do not want to risk exposure. 

During the COVID-19 emergency, you may be left with a host of questions and concerns regarding legal and estate planning services. Not only that, but the COVID-19 emergency has also caused many people to start thinking about estate planning and other issues they usually avoid. Fortunately, estate planning during coronavirus is still possible--and even potentially necessary. 

What Estate Planning Documents Do I Need Most During COVID-19?

During the coronavirus pandemic, many people are recognizing estate planning needs that they might not have considered before. There are several documents you may want to put in place in order to protect yourself and your loved ones in the event of a medical emergency. What happens if you come down with coronavirus? You may want to consider:

Creating a Healthcare Directive

An advance healthcare directive allows you to clearly state your wishes in the event of a medical emergency. With the COVID-19 emergency currently raising fears, you may have specific wishes concerning what treatment you wish to receive and when you would prefer to stop treatment. Creating a healthcare directive will clearly lay out your wishes and ensure that they aren't ignored if you do get sick. 

Arranging a Medical Power of Attorney

If you cannot make medical decisions for yourself, who gets to make them for you? If you have a spouse, the hospital will automatically turn to that spouse when the time comes to make critical medical decisions. If you do not have a spouse, they may turn to your children. You may want to arrange a medical power of attorney if you:

• Want to clearly designate which member of your family can make medical decisions for you in the event of an emergency.
• Are not married to your current partner, but want him/her to have the right to make medical decisions on your behalf.
• Feel that your spouse will not be able to make rational decisions. 
• Do not have a spouse or children and want to designate a specific individual to make those medical decisions on your behalf. 

Clearly Writing out or Updating Your Will

In particular, if you fall into one of the high-risk categories associated with COVID-19, you may want to make sure that you have a current, updated will in place. You may also have found that the current public health crisis reminded you of needed changes, including custody or guardianship arrangements that you need to shift in your existing will. An experienced estate planning attorney can help you set up a will that reflects your current needs. 

Making Sure Your Family Members Have Everything They Need If Something Happens to You

If something happened to you, what would your families need in order to continue to function? This might include:

• Vital bill information, including when they are due and how much they usually are
• Contact information for your employer
• Information about all of your accounts and insurance policies
• Passwords for any devices that your family might need to unlock if something happens to you

You can store that vital information with a copy of your will. An estate planning attorney may also keep that information on file to provide it to your family members if needed. Keep in mind that your family may need to take care of all those key responsibilities if you end up ill or hospitalized, not just if you die. 

What Do I Need to Look for in an Estate Planning Attorney During the COVID-19 Emergency?

Many estate planning attorneys are still functioning normally throughout this emergency--but they may have a few specific requirements or make changes to their usual processes in order to protect both office workers and clients. If you're handling your estate planning needs during this crisis, consider:

Do You Want or Need to Remain Socially Isolated During This Period?

If you are practicing social isolation, especially if you are practicing social isolation due to you or a family member falling into a high-risk category, you may not want or be able to go into the attorney's office to receive advice or take care of the paperwork. While some attorneys may still choose to function out of the office and simply limit contact as much as possible, others may turn to fully virtual services in order to provide the highest quality of service possible to all of their clients while maintaining that important social distance. Consider your needs and the services offered by specific estate planning attorneys at this time. You should not break your self-isolation plans to visit an estate planning attorney unless absolutely necessary, especially since so many attorneys are utilizing online communication methods during the current outbreak. 

How Does the Attorney Communicate With Clients?

During this difficult period, you may need to communicate with your estate planning attorney primarily through virtual means. That may mean connecting with your attorney using potentially unfamiliar technology. Consider:

• Does your attorney prefer to email out vital information? Do you have a printer and scanner at home? 
• Does your attorney use online document signing to sign and transmit important documents?
• Will your attorney video chat or walk you through important paperwork or other information online? 

Discuss how your attorney prefers to communicate, both under normal circumstances and in the midst of the current emergency situation. Choose an attorney that can use the type of technology you prefer, both for short-term and long-term convenience. You may also want to inquire about how long it will take your attorney to respond as you plan your will or put together those medical documents. Many attorneys may find themselves with increased business during this crisis, which could lead to extended waits. Further, keep that in mind when planning the services you need or contacting your attorney--and do not wait to start making the changes you need, since it could take longer than usual to make them official.

Are Your Estate Planning Services Available During COVID-19?

Yes. In spite of the current crisis, our office is still up and running and our attorney is working to continue communication with our clients, including utilizing technology to help produce, sign, and store important estate planning documents. We can still:

Provide Quality Legal Advice

If you have a question about your will, including how to deal with specific concerns or how to increase the odds that your heirs will respect the terms of your will, we can answer it. We can also help deal with specific tax questions or help you prepare to better financially protect your family members in your absence. Our office is also prepared to answer vital questions about healthcare directives and medical power of attorney, including how those things may apply to COVID-19 and the current crisis. 

Help You Get Documents Signed and Make Them Legal

All of our estate planning services are done online via a secure client portal where you can sign many documents electroncially. We also work with our clients to print, fax, and/or scan documents when needed. We also are able to execute many legal documents, including creating a new will and establishing a medical directive or medical power of attorney even in the middle of these difficult circumstances. 

Help You Handle a Family Member's Will

If you lose a family member during this time, whether due to the coronavirus pandemic or due to another cause, we also can help you probate that family member's will. While Texas courts are not holding hearings for non-essential matters until the COVID-19 emergency is over, some judges are allowing testimony to be given by telephone or via videoconference for uncontested probate matters. We also can provide you with valuable legal advice concerning the steps you need to take during this difficult time.

Should I Put off My Estate Planning Needs Until the COVID-19 Emergency Has Resolved?

There are many non-essential tasks that you can put off until the emergency is resolved and normal travel and communication channels have been established again. Other tasks, however, should not wait any longer than absolutely necessary--including estate planning needs. You certainly do not want to be caught off-guard in the midst of an emergency and now is the perfect time to make sure all of your legal documents are in order. You also may have more time to put into your estate planning, especially since many people are spending less time at work or less time commuting to work during the current crisis.

Conclusion

Do you have any estate planning needs in the midst of the coronavirus crisis? If so, make sure to Contact us to learn more about the online estate planning services that we offer and for answers to any questions that you and your family may have.

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For more information please request a copy of our Legal Services Schedule (PDF format).

Once you have made the decision to create an estate plan, it is important that you take time to ensure that you develop one that will meet your family's needs while honoring your wishes once you are gone. However, with the prevalence of do-it-yourself estate planning guides and tools available online, it is understandable why many people are tempted to create their own estate plan in an attempt to save money.

Unfortunately, there are several problems that can arise from attempting to create a DIY estate plan. The fact is that estate planning is a complex process that requires filling out lengthy legal documents. For those unfamiliar with the estate planning process, attempting to create a DIY estate plan can result in mistakes that could cause the validity of your will or trust to be called into question upon your death, causing your loved ones to have to go through a lengthy, costly, and stressful probate process. For this reason, it is critical that you consult an experienced attorney when creating an estate plan. If you are looking to start the estate planning process, here is a look at just a few of the reasons why you need to work with an estate planning attorney. 

You May Not Know What Type of Estate Plan You Need

One of the most important reasons to consult an attorney during the estate planning process is that you may not know what your estate plan should entail. While many people assume that all they need to do is create a will, this is not always the case. Depending on your unique circumstances, as well as what you are hoping to get out of your estate plan, a will may be sufficient, or you may need to include a trust to better protect your assets. You may also want to consider adding a durable power of attorney so that you will be cared for should you become incapacitated, and if you have minor children you may need to designate a guardian in case you die before they come of age. An experienced estate planning attorney can help guide you through this process and help you to determine what your estate plan should include based on your individual needs.  

Laws Can Be Complex

Unless you have an in-depth knowledge of your state's trust and probate laws, it is important that you work with an attorney in order to ensure that your estate plan is drafted in accordance with current state law. The fact is that estate planning laws vary greatly from state to state, and these laws are constantly changing. State laws are very specific about what an estate plan can and can't include as well as what procedures must be followed when drafting an estate plan in order for it to be valid. If you attempt to create your own DIY estate plan and you do not adhere to state law, your will or trust may not be considered valid upon your death, and your estate may not be handled as you would have wished. However, a local estate planning attorney will have an in-depth knowledge of local estate planning laws, and they will know what needs to be done to ensure that your estate plan is valid and fits within the parameters of state law. 

Make Sure Your Wishes Are Followed

Not only can state laws make the estate planning process difficult, but if you attempt a DIY estate plan, you may also find yourself making mistakes due to complex legal jargon. The fact is that the estate planning process is extremely complex, and you may soon find yourself lost in documents that you do not fully understand. When this happens, you run the risk that your estate planning documents will not accomplish what you wanted them to. A simple mistake such as a forgotten document or a misinterpreted passage could mean that your estate plan will not do what you wished, and your assets may not go where you would have liked upon your death.  

Avoid Probate

If you make a mistake during the estate planning process, this can also mean that your estate may have to go through probate. If your estate plan is insufficient, or its validity is called into question, then your estate will have to go to probate court before it can be settled. Probate can be a lengthy and expensive process for your loved ones, as a judge will have to oversee the process of distributing your assets. Not only can this put additional stress on your family during an already difficult time, but probate costs can diminish the portion of your assets that actually goes to your heirs. Additionally, when your estate goes through probate, your financial information becomes public record, which can compromise your family's privacy. This is why it is critical that you work with an attorney during the estate planning process, as working with an experienced estate planning attorney will give you the best chances of developing an estate plan that helps the majority of your estate to bypass the probate process. Estate planning attorneys have a great deal of experience with probate, and they can help you to develop an estate plan that shields your assets from this process. 

Save Money

Overall, working with an estate planning attorney can help to save your estate money. While many people attempt DIY estate planning in the hopes of saving money, this can backfire in the long-run as your estate may end up paying more in lawyers' fees and court costs if there is a problem with your estate plan. Furthermore, if your estate plan is not drafted correctly, your estate could also be subjected to additional taxation. Working with an estate planning attorney can then help to ensure that as much of your hard-earned money as possible is passed to your heirs. Knowing the ins and outs of estate and probate law, they can help you to craft an estate plan that will keep your estate out of probate and reduce the tax burden that your estate faces after your death.  

Get Objective Advice

It can also be invaluable to work with an experienced attorney during the estate planning process due to the fact that they can provide objective advice. If at any point you are unsure what decision you should make regarding how your assets should be divided or who should be designated as a trustee for your estate, an attorney can act as a voice of reason who can help you make these difficult decisions. Having handled cases similar to yours, an estate planning attorney has the experience to guide you through this difficult process. They can also help you to inventory your assets and make sure that you make decisions regarding how all of your belongings should be distributed after your death, which can help to reduce conflict between your beneficiaries after you are gone.    

Your Estate Plan May Need to Be Updated

Further complicating the estate planning process is the fact that, depending on the type of estate plan you choose, it may need to be updated over time as your needs change. However, updating an estate plan is no easy feat, and this process needs to be handled carefully in order to ensure that no mistakes are made. When you partner with an estate planning lawyer, you will not just work with them for a few hours and be done. They will be there for you over the years in order to ensure that your estate is still doing what you need it to, and should there be changes to your financial position, they can help to make sure that any amendments to your estate plan are handled properly.  

You Only Have One Shot to Get It Right

When developing an estate plan, it is critical that you get everything right the first time, as you may not have a chance to change things later. If you make a mistake when drafting a will or creating a living trust, your estate plan may not be valid after you die. While it is possible to invest in a new estate plan if you realize that your DIY attempt at creating an estate plan was flawed, this can mean time and money wasted creating a plan that didn't work. Additionally, there is always a risk that you won't catch these mistakes, which could cause problems for your beneficiaries after you are gone. By partnering with an experienced estate planning attorney, you can rest easy knowing that your estate plan will be done right the first time as it is being handled by a seasoned professional. 

Hiring an Estate Planning Attorney Can Provide You With Peace of Mind

Considering the important role proper estate planning plays in protecting your assets and ensuring your wishes are followed after you are gone, working with an estate planning attorney can help to provide you with a peace of mind knowing that your estate plan is being drafted by an experienced professional. Your attorney can help guide you through the estate planning process and answer any questions that you may have along the way, helping you to feel confident that your family will be looked after once you are gone.

If you have made the important decision to start estate planning, feel free to contact us to learn more about how we can help walk you through the process of developing your own estate plan.  

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For more information please request a copy of our Legal Services Schedule (PDF format).