There is no question that estate planning is a hugely important process that can have significant implications for someone’s life. Estate planning is a great way to provide security and guidance to your loved ones and relatives. If you have done any reading on estate planning, you have probably come across lots of information that discusses why trusts are, in some cases, a better alternative to wills, especially as a preferred means of testamentary transfer. While it is true that trusts do have a lot of benefits that a will cannot provide, it is also true that for some people, creating a will makes more sense than creating a trust. 

In this blog, we will discuss specific situations where creating a will rather than a trust may make more sense. Furthermore, if you are interested in creating a will or would like to inquire about starting an estate plan, contact a knowledgeable estate planning attorney who will work to ensure your rights remain protected throughout the process and that your estate planning goals can be lawfully met.  

It is not uncommon for people to treat their pets as if they were a member of their own families. Animals often serve as close companions to their human counterparts. But what happens if someone has a pet that has the chance to outlive them? Well, if you are the loving owner of a pet, you will be happy to learn there is indeed a way to include your pet as a part of your estate plan to ensure they will be cared for in the event of your death. Trusts involving animal care are authorized in the Texas trust code. 

If you are interested in including your pet in a trust, understand that various requirements govern the use of pet trusts. For example, the animal in question must have been alive during the grantor's lifetime. If you are interested in utilizing a trust to care for your pet in the event they outlive you, consider contacting a skilled attorney, as pet trusts can be just as complex as any other form of trust. 

What You Should Know About Trusts for Animals 

Contrary to trusts involving humans, which can be administered decades after the trust's creator has passed away, pet trusts are generally more temporary. Typically, pets will not live past 20 years old. However, there are exceptions, like species of birds that can live close to the length of a human life or even tortoises that may live for 100+ years. But for most animals, the trust will not need to be long-lasting. A pet trust will automatically terminate once the animal being cared for has passed away. As a result, it may be wise to include a clause governing what should be done with the remaining funds in the trust. In cases where the assets within a pet trust surpass the amount needed to care for the animal, the assets may be allocated to beneficiaries named in your will. In the event you do not have a will, the assets may be given to intestate heirs. 

In essence, estate planning is a way for someone to prepare for the unexpected. Within estate planning, powers of attorney can serve as a protective measure in case you ever find yourself in a situation where you cannot make decisions for yourself and thus cannot manage your estate. In a situation like this, a power of attorney would step in and begin the process of managing your affairs. While powers of attorney are often of more concern for older members of the population, that is not to say it is unwise for a young and healthy person to be prepared for a situation that involves them being incapacitated. In a case like this, powers of attorney would step in and be able to make medical decisions or pay the bills of the incapacitated person.

Accidents can happen at any time for many different reasons. Whether you are a young adult or an older individual, contacting a knowledgeable attorney who works in estate planning and has assisted others in naming powers of attorney can assist you in making your estate planning goals a reality. 

Understanding What Are Powers of Attorney

Simply put, a power of attorney is authorization for another individual to act with legal authority on your behalf. Powers of attorney may grant someone the ability to make medical decisions on another’s behalf, manage their financial affairs, or do other actions that the creator of the estate plan may see fit. When envisioning what would happen in a future emergency or incapacity, springing powers of attorneys may be used. This means that the power of attorney would not take effect until the time in which the estate planner is considered to be incapacitated. As a result, there is virtually no risk of accidentally granting someone control of your life at the present time. 

For many parents, one thought in particular is unconscionable: passing away while their children are still young. For families with children and two living parents, you may not think that you need to worry or think about estate planning. You may consider your children protected since you and your spouse are still alive. However, life can be wildly unpredictable. Therefore, while it is unlikely you will ever need an estate plan that considers the various needs of your children living without you, like the saying goes - it is better to be safe than sorry.

While you cannot directly leave money for a minor, regardless of whether they are your child, there are estate planning tools that allow you in other ways to protect them. If you are a parent with minor children and do not have an estate plan already made with your children in mind, the best time to create one is now. If you are interested in creating an estate plan and want to jumpstart the process, do not hesitate to contact a knowledgeable estate planning attorney who will work to ensure your estate plan is lawful and addresses the areas you are most concerned about. 

Tips for Estate Planning for Parents with Children

There are essential legal tools that parents with young children need to be aware of that they can use to safeguard their children's well-being should the unexpected take place. These legal documents and strategies include:

When creating their estate plan, many people ponder how best their assets can be allocated and to whom the assets should be allocated. In many cases, people may only be interested in including their family and close friends as beneficiaries in their estate plan. However, some people decide that they would like to donate a portion of their estate to charity. This can be an excellent way to leave a lasting legacy that is felt long after you are gone. However, if you are interested in this, you should be aware that donating money or property posthumously to charity has numerous other benefits. 

When it comes to donating a portion of your estate to charity, there are many different things to consider. If you are interested in donating some of your estate to charity, consult with an experienced estate planning attorney who will protect your rights and guide you through the process as seamlessly as possible. 

Considerations for Charitable Giving and Estate Plans

There is a common misconception that someone needs to be exceedingly wealthy to leave behind money or property for a charity. This is not the case. Furthermore, ensuring your estate plan allocates assets or properties toward a good cause does not need to be overly challenging. However, having an attorney assist you through the process is still wise. There are many things to be aware of during the process, including the following:

More often than not, estate planning is considered to be something only older adults need to deal with and worry about. This is understandable, as wills and trusts are generally discussed in the context of older adults and the elderly. However, if history has taught us anything, nothing in life is guaranteed. Just because someone may be young does not mean they are guaranteed to live a long life. As a result, estate planning for young adults is not as crazy as it may sound and, in many cases, can be a very wise decision. 

There are so many different contingencies in life. Therefore, if you are a young adult interested in creating an estate plan, contacting an experienced Texas estate planning attorney is an excellent place to start.

Reasons Why Young Adults Should Consider Creating an Estate Plan

An estate plan for a young adult is like an insurance plan. For example, no one expects their house to burn down, but having fire insurance for your home is still wise just in case the unexpected occurs. The same goes for estate planning for young adults. No young adults expect they will require an estate plan, but it is still wise nonetheless to be prepared for the unexpected. A young adult making a low-cost estate plan is a small price to pay compared to what could happen should the unexpected happen and no estate plan is in place. Reasons a young adult should consider creating an estate plan include:

The aftermath of a loved one’s death can be a time of great difficulty for various reasons. A common source of contention after a loved one dies arises when it is time to read the last will and testament. A person’s will is a blueprint for how they would like their assets and property to be allocated to their beneficiaries upon death. Beneficiaries are generally named within the will. Sometimes, one or more heirs of the will may argue that the will is invalid. 

When issues like these arise, the situation may be addressed through probate litigation. Beneficiaries can take legal action if they believe the estate or trust administration was done improperly. This realm of law can get quite complex. You will need competent legal representation if you are interested in contesting a will. Consult with a probate litigation attorney to ensure your rights remain protected throughout working to ensure your loved one’s wishes are followed correctly. 

When May a Will Be Contested? 

If an interested party wishes to contest a will, they generally must do so within two years of the will being admitted to the court during the probate process. Parties interested may include beneficiaries named in the will, heirs standing to receive property, the spouse of the deceased, and any other people who may have a claim against the deceased estate, like a creditor. Probate litigation is used to address the will’s authenticity. Someone can claim a will is invalid for many reasons, such as the following: 

There are many reasons and situations that require an update to your estate plan. Divorce just so happens to be one of the more common and potentially catastrophic situations. Unfortunately, the hectic nature of divorce makes it also easy to overlook or forget updating an estate plan. There are many loose ends to tie up once the divorce process is complete, and with so much to manage, estate planning can easily slip through the cracks. Unfortunately, if something does happen to you before you have made changes to your estate plan, assets may not go to the people and places you had hoped. Do not let this happen to you. Learn what and when you should update in your estate plan after your divorce.

Changing Your Beneficiaries

If you have a 401K, IRA, or other retirement plan, the beneficiary listed on your policy should be checked upon completion of the divorce. Of course, you may have to split some of your savings in your divorce, but the remaining amount should still belong to you. If you do not want the remainder to go to your spouse upon your passing, and they are listed as the current beneficiary, it is important that you change this in your policy. Alternatively, if you wish your ex-spouse to be listed as a trustee for your children, ensure the policy and your other estate planning documents reflect this wish.

Updating Your Powers of Attorney

If you are like most people, you probably had your spouse listed as your power of attorney (the person that acts and makes decisions for you in the event of incapacitation). Now, it is possible to keep your ex-spouse as your power of attorney, but few divorces end quite that amicably. Instead, you might want to consider naming a close friend, a sibling, a parent, or an adult child. Make sure they are someone you can trust to carry out your wishes.

 Estate planning is designed so that once someone dies, their family members and loved ones will know what to do with the deceased person's property, heirlooms they may have possessed, and other wishes they had. When someone dies with a will, they typically assign a loved one to be the executor of the will. If the loved one dies without a will, a family member may step forward and ask to be the estate executor. The executor's role is to ensure the deceased person's estate is managed correctly. 

Probate is when the court officially recognizes someone's death and authorizes the management and allocation of whatever their estate contains. Probate aims to ensure that all assets in the deceased person's name are transferred to the living individuals named in the will, or, if there is no will, that their assets are distributed according to state inheritance law. If you were named executor of an estate and wish to begin the probate process, you should hire an experienced attorney familiar with the probate process. Failure to hire a competent attorney to help you work through the probate process may result in critical errors.

Common Mistakes Made During Probate 

Once the court approves the designation of the executor, the executor receives a long list of things that must be completed. Unfortunately, within this to-do list is plenty of room for error. The first mistake that may be made is failing to inventory the deceased's assets correctly. Since the executor is accountable for taking care of the deceased person's debts and safeguarding their assets, it must be known what the deceased owned at the time of their death. 

When someone passes away, there are several matters related to the property they owned, assets they possessed, and other final wishes the person had that will need to be taken care of. These types of matters are usually handled by whoever was chosen as the executor of the estate. If the deceased created a will before they passed away, the document likely contains the relative named as the executor. Sometimes, when a person passes away without a will, a relative may ask to be designated administrator of the estate. 

Moving forward with the process, the person chosen as executor or estate administrator will need to complete the probate process. Probate is a process where a court lawfully recognizes someone's death and authorizes the management and distribution of their estate. Ultimately, the goal of probate is to appropriately transfer any assets out of a deceased individual's name into the names of the living. In the event you were named as an executor or wish to serve as the estate administrator, an attorney experienced in estate and probate litigation can help you properly address the issues at hand. 

Stages of the Probate Process in Texas

In the state of Texas, the executor of the estate or estate administrator will be required to complete these steps in order to ensure the probate process is done correctly. These procedures include: 

The idea behind estate planning is to put your family in the best possible situation by planning for future events. What will happen to my family when I am no longer here? is a challenging but essential question to ask yourself as you seek to grant your family peace of mind by preparing for whatever may happen. 

The needs of families can differ, as can the needs of individual family members. For example, suppose you have a family member with a physical or mental disability who is dependent on you or other family members. Depending on their level of disability, you may be concerned about their inability to care for themselves independently. You may be interested in securing their physical and financial well-being after you pass away. In that case, it is wise to speak with an experienced attorney knowledgeable in special needs trusts, which can grant you the peace of mind that your loved one will be taken care of in the future. 

What is a Special Needs Trust?

People with disabilities are often eligible to receive various forms of governmental and public aid that help with their ongoing needs. The disabled person must have limited income and other financial resources to qualify for these benefits. A very common pitfall families can run into is if they decide to give a disabled family member a large amount of money or other assets as a form of financial protection for the disabled family member. While this may seem appropriate, gifting the disabled family member with assets may make them ineligible for public benefits like Medicaid or Supplemental Security Income through Social Security. To avoid this, a family member can set up a special needs trust to avoid making them ineligible for public benefits.

So many things in life are completely out of our control. The estate planning process aims to give back some of this control to people and their families when the inevitable or unpredictable happens. Estate planning can address issues associated with money and property. To ensure their family is adequately provided for in the event of their death, many people create a will, laying out the deceased person’s wishes for when they are no longer living. 

While most people have likely heard of a will, they may not have heard of a living will. Essentially, a living will is a document of medical instructions that allows you to determine, while you are still alive, what medical decisions you would like administered or withheld in the event you become medically incapacitated. If you believe you or your loved one may benefit from creating a living, it may be wise for you to contact an experienced attorney knowledgeable in estate planning. 

Advance Medical Directives in Texas

Under Texas law, advance medical directives are identified as the following:

Powers of attorney can be powerful tools for self-protection during your own lifetime. Should you ever find yourself in a situation where you are not capable of making decisions for yourself or managing your estate, you would likely want to be able to choose the person who should step in and begin managing your affairs. Many people think of powers of attorney as being important mainly for older adults who are likely to suffer mental deterioration due to the effects of aging and aging-related illnesses such as dementia. However, senior adults are not the only group of people who should have powers of attorney in place.

Our team has seen many, many situations where a seemingly young and healthy person is involved in an emergency and needs another person to make medical decisions or get their bills paid on time. Serious accidents can happen to anyone, anywhere, at any time. With powers of attorney in place, you can be ready for any surprises life may throw your way. 

What Are Powers of Attorney?

A power of attorney is essentially an authorization for someone else to take an action with legal effect on your behalf. Powers of attorney can give a person you choose certain privileges to make medical decisions, handle your finances, or take any other actions you deem appropriate. When contemplating preparedness for an emergency or future incapacity, springing powers of attorney are generally used. Springing powers of attorney do not take effect until you have been deemed incapacitated, so there is essentially no risk that you will inadvertently give someone else control over your life right now. 

Creating a will is often seen as the most basic form of estate planning. While an increasing number of people choose trusts over wills, these documents still have important uses for many individuals. Smaller estates may be passed entirely through wills in some instances. Texas state law sets out a few basic requirements that must be met in order for a will to be considered valid and enforced during probate. Some requirements relate to who the testator is, while others proscribe a very specific method of will execution.

In general, most adults will be able to create a will in Texas. There are limitations based on the testator’s competency, however. This is one reason why middle-aged and even young adults should consider creating a will now rather than waiting until they are older adults at risk for age-related mental deterioration. It is also highly advisable to execute a will only under the direct supervision of a qualified lawyer. 

Who is Eligible to Create a Will?

Generally, a person must be at least 18 years old to create a will. However, in Texas there are two notable statutory exceptions. A minor who is married or was married in the past will typically be permitted to create a will. A second patriotic exception pertains to minors who are serving in the U.S. military or an armed forces auxiliary agency. Testators must also be of sound mind.

Many people share a strong bond with their pets. Companion animals can be a wonderful source of comfort to their owners. If you have a dear pet who could potentially outlive you, you may be comforted to know that there is a way to provide for the ongoing care of your pet using your estate plan. Trusts for the care of an animal are explicitly authorized in Texas’s trust code. There are requirements governing the use of pet trusts. For example, the animal provided for must be alive during the grantor’s lifetime. A trust to care for your dog would likely be permitted, but a trust caring for all future descendants of your dog would likely not be enforced. If you are interested in using a trust for the care of an animal to provide for your pet should they outlive you, it is best to work with a skilled attorney. Pet trusts can be complex as can any other form of trust. 

What You Should Know About Trusts for the Care of an Animal

Unlike a trust designed to care for a person’s human loved ones, which may be administered for decades after the settlor has passed away, pet trusts are frequently of a more temporary nature. Most pets do not live longer than ten to twenty years in total. There are of course exceptions - some bird species have a usual lifespan on par with humans. However, for animals with shorter lifespans, the trust need not be a particularly long-lasting one. Pet trusts automatically terminate upon the cared-for animal’s passing. It may be prudent to include a clause governing what should happen to any remaining trust funds. 

Assets contained in a pet trust that exceed the amount needed to appropriately care for the animal may be distributed to the beneficiaries you have named in your will, or if you do not have a will, to your intestate heirs. 

When you are planning how your estate property is to be distributed one day, you likely want the entirety of your estate passed on to your loved ones rather than being diminished by fees and costs. Mistakes during the estate planning process can lead to the loss of estate funds and property, affecting what will be available for your beneficiaries. There are a number of estate planning strategies geared around asset protection. Everything from the type of testamentary instrument you use to the wording of a trust can have a significant impact on your estate’s asset retention.

Asset protection may be of particular importance for those with more complex assets they are seeking to pass on, such as ownership interest in a company. It is wise to work with an experienced attorney who can help you to utilize every available asset protection tactic during the estate planning process. 

Ways to Preserve Estate Property

There are a variety of tools available in estate planning that can help you and your future beneficiaries make the most of the assets you have built up throughout your lifetime. Asset protection strategies used in estate planning may include: 

 Estate planning is often thought of as a task for the sick and the elderly - those who reasonably anticipate that their life will draw to a close in the relatively near future. Those with great-grandchildren are meant to make out their wills. A father diagnosed with late-stage cancer should create a trust. Those who are of an age to be concerned with Alzheimer’s and other age-related impairments of the mind need powers of attorney and health care advance directives.

While it is true that the aforementioned groups should create estate plans with haste, it is also important for young adults to undertake the task. Little can be predicted in life. Even those who are young, unmarried, and with no descendants would be wise to create an estate plan to cope with the contingencies of life. If you are interested in making an estate plan, an attorney can aid you in preparing the documents your plan should be comprised of. 

3 Reasons for Young Adults to Have an Estate Plan

An estate plan for a young adult is, conceptually, like an insurance plan. No one anticipates a house fire, but the wise insure against it anyway. Creating an often-simple estate plan for a young adult may be a relatively low-cost endeavor proportionate to the harm that would come should the plan be needed but absent. Reasons that a young adult should have an estate plan include:

The duties of a successor trustee can be complex and varied. Depending on the nature of the instructions left by the grantor, a successor trustee may have significant discretion in distributing trust funds, or none at all. Despite holding the instructions of a now-deceased grantor sacred, a series of difficulties may arise for the successor trustee. Situations may arise frustrating the purpose of a trust or rendering its continued administration impracticable. Successor trustees, even professionals, may encounter situations that are legally complex and require a high level of skill and commitment. Beneficiaries, or those who were not named as beneficiaries, may not be amenable to the successor trustee’s handling of the trust. Legal challenges may be brought. A majority of fiduciaries tasked with managing another’s trust for the benefit of the grantor’s selected beneficiaries may benefit from legal assistance at some point in the execution of their duties. 

Occasions When It May be Prudent for a Successor Trustee to Contact an Attorney

It may be advisable for a new successor trustee to consult an attorney at the outset of trust administration. An attorney can review the language contained in the trust to clarify the nature of the trustee’s duties and provide ongoing legal support. 

Other circumstances under which a successor trustee should consider contacting a lawyer include: 

Probate is generally not fun. It can be complicated. It can be prolonged. It can be costly. There are multiple steps in the Texas probate process, so there are plenty of points where something could go wrong. It is fairly normal for families to run into difficulties during probate. Although the personal representative may initially have things under control, that could change at any moment. Anything from a surprise challenger to a few missing documents can throw a wrench in probate unexpectedly.

Many bereaved families start the process by themselves only to find that they need help from an attorney midway once a challenge arises. It is often best to have a lawyer on board from the beginning if possible. Our goal as probate lawyers is to take on the legal side of handling your loved one’s estate so that you and your family can focus on healing from your loss. 

The Most Common Problems That Arise During Probate

Even if everything goes smoothly, probate can still be difficult. Some of the most common challenges that people face during probate include: 

Estate planning trusts come in many different forms. There are trusts with specific purposes, like charitable trusts and minors’ trusts. There are trusts created by a will. If you are looking to create a trust, you have numerous options. However, the two main types of trusts you will likely work with are revocable living trusts and irrevocable living trusts. The differences between the two largely revolve around how flexible the trust is. Many people choose revocable living trusts because they are rather easy to go back and make changes to. The idea of an irrevocable trust frightens some people. However, there are numerous benefits to using irrevocable trusts, mainly related to asset protection. You should speak with an attorney about what your particular estate planning needs and goals are before settling on a type of trust. 

What Is a Revocable Living Trust?

A revocable living trust is the standard type used by estate planning lawyers. When you create one of these trusts, you “fund” it by placing your property in the trust. Most people name themselves trustee so that they can retain control over their property. 

The advantage of a revocable living trust is that it is easy to make changes during your lifetime. You are free to go back and add or change beneficiaries, move property in and out of the trust, change your successor trustee appointment, change your instructions for posthumous distribution, and more. You can also revoke the trust entirely if you feel that it is no longer serving its purpose effectively.