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. 

No parent ever wants to think about the possibility of passing away while their children are still children. It can be a terrifying and uncomfortable thought. It is also statistically very unlikely, especially if your children currently have two living parents. However, life is nothing if not unpredictable. No one can predict the future. While you are highly unlikely to need an estate plan that provides for your minor children, it is far better to have one and not need it than to need it and not have it.

As you cannot leave money directly to a minor, even if they are your own child, you will need to use several different estate planning tools to protect them. If you have minor children and you do not already have a strong estate plan designed with them in mind, the time to start building one is today. 

Estate Planning Tips for Parents With Young Children

There are a handful of legal tools parents of minor children can use to protect their children should the worst happen. Documents and strategies that may belong in your estate plan include: 

Trusts are often the smarter way of planning to distribute your future estate property. Wills come with a lot of pitfalls - specifically, that your loved ones will have to go through an often-challenging probate process. Trusts allow your future beneficiaries to skip the time-consuming proceedings and cost associated with probate and may offer a number of other benefits in addition. However, trusts are not understood as well as wills are. There is still a prevailing popular belief that trusts are for the ultra-wealthy, those families whose children and grandchildren will never have to work for a living. This is far from the truth. You may be surprised how much you and your loved ones could benefit from creating a revocable living trust. Our attorneys can answer any other questions you may have about how trusts work or how they could help you. 

How a Revocable Living Trust Works

A common source of confusion is that there are multiple unique types of trusts to choose between. There are irrevocable trusts, special needs trusts, revocable living trusts, and even something called a testamentary trust, which can only be created using a will. These are just a few of the forms a trust can take. 

This post will focus on the most common type of trust used today - the revocable living trust. First, you should know that “revocable” has its plain meaning. You can undo a revocable living trust at any point in your life (so long as you still have the mental capacity to sign legal documents) and for any reason. If you feel that your trust is no longer working for you or your loved ones, it is fairly simple to revoke the entire thing. 

There are multiple ways for a person to try to make a will without seeing an attorney. While these methods may seem cheaper and easier in the short-term, they can backfire horrendously in the end. The two main ways that some people go about DIY-ing their estate plans are through online kits, and by making handwritten (“holographic”) wills. Both methods are quite fallible. The risk of using one of these at-home methods is that the document you create will not be legally effective.

In Texas, wills must be created according to certain formalities, and they must comply with a series of strict laws. The effect of even one legal mistake can be that the entire document gets thrown out, and you are left intestate. Our attorneys can help you with a much better, safer way of making an estate plan. 

What is a Holographic Will?

A holographic will is a will that is written entirely in the testator’s own handwriting and signed. While these can be legally acceptable in Texas, there is quite a lot of risk that someone could challenge the will. Most holographic wills are made without neutral witnesses present, and thus, are easily disputed. The only time a person in Texas should attempt to make a holographic will is if they are imminently about to die and truly have no other options. For example, in one famous case, a farmer carved his will into the bumper of the tractor he was pinned under. 

When you decide to create a trust, you will have two main options—revocable  or irrevocable. Revocable trusts are more common. Having the ability to go back and make changes very easily appeals to a lot of people. The term “irrevocable” can scare people off easily. Because most people transfer all or almost all of their property into their trusts, a lot of people are afraid to create a trust they cannot revoke. However, there are a few distinct benefits of using an irrevocable trust. 

The big reason that people who do use irrevocable trusts do is for the unparalleled asset protection features. Of course, an irrevocable trust is not without risks. If you are considering using an irrevocable trust, your attorney can help you decide whether this is the right move. 

Benefits of an Irrevocable Trust

The benefits of using an irrevocable trust include: 

There are alarming many, very common misconceptions about estate planning - what it is and how it works. In this day and age, misinformation is very easy to come by, and sometimes very hard to spot. Many people who approach an attorney to start the estate planning process believe at least one myth about estate planning. What is more concerning is that these myths may be preventing people from beginning the process at all.

You may be surprised by some of these myths and facts about wills, trusts, living wills, and powers of attorney. In some cases, fictional movies or TV shows have perpetuated the misconceptions. Others are simply outdated information. If you are considering beginning to make your estate plans, Geoff Mayfield, Attorney at Law can help. 

Myths About Estate Planning and the Truth Behind Them

Some of the most common myths about estate planning include: 

If you are going through probate, you likely already know that one important step in the process is notifying the decedent’s creditors. Settling debts is an uncomfortable, but necessary part of the process of settling an estate through probate. During this step, the executor or personal representative will need to identify anyone the decedent owed money to and let them know that their estate is in probate now. Certain assets that are part of the estate may be liquidated in order to satisfy the decedent’s debts. However, other assets are exempt from liquidation. So, what happens if your loved one owed more than their estate is actually worth? It depends on a few factors. If you believe that your loved one’s estate is going to have this problem, an attorney can help protect you. 

Which Assets Are Protected From the Liquidation Requirement?

If your relative had a lot of debt, you might be worried that you will lose your inheritance to their creditors. While it is true that non-exempt assets can be sold off to pay a decedent’s creditors, other assets are exempt from this requirement. 

The two major assets that are exempt from liquidation are retirement savings accounts and life insurance policies. Even if your relative had overwhelming debt, you or your relative’s other designated beneficiaries will be able to keep funds that are secured in a retirement account, like a 401(k), or proceeds from a life insurance policy. 

Most people think of estate planning as something that will only come into play after they have passed away. However, the part of estate planning that mostly matters after you are gone - testamentary planning - is only part of what a comprehensive estate plan can do. The other side of estate planning, known as “incapacity planning,” actually controls what will happen during your end-of-life phase. While it may not be a pleasant thought to confront, the vast majority of us will not be fully-functioning independent adults one moment and gone the next. Most people experience a period later in life where they cannot make sound decisions for themselves. In that event, a well-made incapacity plan will control much of your care. You are the best person to make decisions for yourself, and you can do so by taking the time now to make critical decisions about your own future care. 

The Documents You Need to Create Now to Protect Your Future Self

Ask any nurse who has spent significant time doing bedside care in a hospital setting, and they will tell you just how important documents like a living will are. When a loved one has lost the mental capacity to make their own decisions and becomes ill, families often make rash and emotional decisions. Failing to do incapacity planning can lead to more family conflict and the use of “heroic measures” to prolong the life of a person who is terminally ill and unaware of their situation. 

Documents that everyone should have in place to prevent this type of situation include: 

Creating estate planning documents in the first place is 90% of the battle. Once you have a trust, a will if you need one, a living will, and your powers of attorney all ready to go, choosing the right place to store them is critical. If no one is able to find your documents, then there is a real risk that the plan you worked so hard to create will never be followed. The right place to store your documents is somewhere that your loved ones will be able to easily locate them, but also somewhere that they will be safe.

It is often a good idea to keep multiple copies of certain documents. For other documents, it is by far best to have the original available when it is needed. Your attorney can give you more specific advice on where to keep your documents so that they will be accessible. 

Good Places to Keep Estate Planning Documents

Different types of documents should be stored or kept in different places. Some helpful tips for different estate planning documents include: 

If you have started to look into estate planning a bit, you have probably read over and over that trusts are rapidly becoming the preferred means of testamentary transfer. Certainly, there are numerous benefits of using a trust over a will. Using a trust can allow your beneficiaries to skip a lengthy and costly probate process. It also keeps the handling of your estate private rather than public, reducing the odds of a contest. And, you can use a trust to make controlled distributions over time instead of giving someone - especially a very young adult - one lump sum. 

With all of this in mind, you might wonder why anyone at all still bothers with making a will. There are certain situations in which it is wise to use a will in addition to a trust. Wills are still useful in modern estate planning for many, as they can sometimes accomplish goals that a trust cannot. 

When Should I Use a Will?

In any of the following situations apply to you, you may need a will, even if you are primarily using trusts: 

If you already have an estate plan, when is the last time you pulled it out and looked over it? If it has been a while, you might want to revisit it. People’s lives change over time. Laws change. Families change. It is a wise idea to review your estate planning documents periodically to ensure that the plan you have is still the plan you want.

Estate planning can be an emotional process for some, so it is understandable if you are reluctant to visit the subject more than once. However, even a quick review to make sure that your wishes are still accurately expressed can go a long way towards protecting both you and your loved ones. There are also a few trigger events that should prompt you to take a look at your estate planning documents. Most changes to an existing estate plan can be made relatively quickly and easily with a lawyer’s help. 

When Should I Revisit My Estate Planning Documents?

You may want to review and possibly edit your existing estate plan if one of the following life events takes place: 

Probate can be very complicated. Even relatively straightforward probate cases involving smaller estates can be challenging if even one step goes slightly awry. Whether your loved one left a will or not, a problem that arises during any one step can lead to long delays and more expenses. There are generally six steps, or phases, of the probate process in Texas. Some steps are trickier than others. Some may go quickly, and others may seem to drag on forever. Most people could greatly benefit from a lawyer’s assistance in navigating the process. 

Regardless of the complexity of the estate, it is typically easier to manage if you have a lawyer on board from the beginning. Our team has the experience needed to anticipate and be prepared for any potential difficulties during probate. 

What to Expect During Texas Probate

Each step in the probate process must be completed correctly and in order before any distributions can be made. The six steps are: 

Some families are very open about their estate plans and what their end-of-life wishes are. Some parents will tell their children who will be getting what completely unprompted. They may give their children copies of their wills, trusts, powers of attorney, and advance directives. This is the wise approach in most cases. Other families are less open about the subject. Estate planning can be an unwelcome reminder of human mortality. You may not even want to think about your parents one day passing away, or they may not want to consider it themselves. Nevertheless, it is important that you have this conversation. While adults of all ages should have an estate plan, it is especially important for older adults. If you have not yet spoken to your aging parents about their estate planning, now may be the time. 

Why Is Having This Conversation Urgent?

When your parents are getting on in years, there is a substantial chance that they may be impacted by age-related illnesses that affect their cognitive function. Their estate planning must be completed before they lose the mental capacity to execute legal documents. It is impossible to tell whether or when the effects of aging will become apparent, so it is best that aging adults do not wait much longer to make an estate plan. 

Tips for Discussing Estate Planning With Your Parents

You know your parents probably better than anyone else. It is important to consider how they may react to different approaches to the subject. Here are some tips for broaching the topic of estate planning with your aging parents: 

Some families talk openly about subjects like death and estate plans. Others are uncomfortable discussing these sometimes difficult subjects. Talking about making a will can be upsetting for some, as it can serve as an unwelcome reminder that a loved one will not be here forever. If your family falls into the latter camp, you may not know much about your loved one’s estate plan. You may not even know where they put it or if they had one at all.

When it comes time to start settling your family member’s estate, you may have a limited window of time to locate their will. This can be a difficult task. Many older adults still keep hard copies of important documents, which can make your search all the more difficult. After years of practice, the attorneys at Geoff Mayfield, Attorney at Law have learned a few strategies for locating seemingly lost wills. 

Where Should I Look If I Cannot Find My Loved One’s Will?

Grieving for a family member is difficult enough without the added stress of not being able to find their estate planning documents. A few helpful tips that may point you in the direction of a lost will include: 

If you are leaning towards using a trust over a will as your primary testamentary tool, you are among countless others making the same smart choice. Using a trust allows your loved ones to bypass probate, which can be very complicated in Texas. Often, trust administration is much smoother and allows distributions to be made to your beneficiaries much more expediently. Trusts can also help you avoid the expense associated with probate so that more money stays in your loved ones’ hands.

One key factor in how smoothly your trust can be administrated is your choice of trustee. The individual you choose may have some discretion in making distributions and will be responsible for managing any property or funds in the trust. It is important to make the right selection, as a poor choice could cause headaches for your beneficiaries down the road. You should discuss your options with an attorney before making a final decision. 

Advice on Appointing a Good Trustee

Of course, your trustee should be someone you trust, but there is often more to it than that. You also need to make sure this individual has strong money management skills and good judgment. Some factors to consider include: 

In some ways, renting out commercial real estate can be less complicated than renting out residential units. As a commercial landlord, you probably are not too worried about someone smoking inside your property or throwing loud parties that disturb other tenants. You are less likely to be disturbed by after-hours maintenance requests, and you are not subject to some of the stringent housing code requirements that apply to residential units.

Of course, that does not mean that renting out commercial space is going to be all smooth sailing. There are plenty of reasons that a commercial landlord could face litigation. Disputes between corporate renters and property owners are not uncommon. If you are facing legal threats from your commercial tenant, it is important that you get in contact with an attorney as soon as possible to help resolve your dispute. 

Preventing and Addressing Commercial Real Estate Rental Disputes

If at all possible, an attorney should look over the lease you plan on offering to a prospective tenant. Language in the contract that may seem very clear to you could be misinterpreted or twisted by a tenant. Having an attorney draft your commercial lease is one of the best ways to head off future disputes. Some common problems that lead to legal conflict between commercial landlords and their tenants include: 

When you are still in the prime of your life, estate planning may not seem important at all. You have no reason to anticipate needing one anytime soon, and you may not have children or a spouse to worry about protecting. As a younger adult, you have also had less time to accumulate property, so you might not feel that deciding how to distribute it is very important. This could be a big mistake. Life is nothing if not unpredictable. Your personal circumstances, from your health to your wealth to who you would want your beneficiaries to be can change very quickly. Aside from that, there is much, much more to estate planning than simply making a will or trust. Wherever you are in life, having a legally sound estate plan in place can offer an additional layer of security to both you and your loved ones. A qualified lawyer can help you take the next steps. 

Why Should I Have an Estate Plan at All?

First, you should know that your estate plan will encompass important medical planning documents like a living will and health care powers of attorney. These documents are your voice should something happen so that you cannot speak for yourself. For most young people, your parents would be the de facto decision-makers in this type of situation. If you do not see eye-to-eye with them regarding how you would want to be treated - or not treated - these documents are not optional. 

Further, you might be surprised at how much property you actually have when you stop to add it all up. Think about what you owned two years ago even as opposed to now. Even without a family of your own, there is likely someone, whether that is a friend, family member, or charity that you would want your belongings to benefit. Estate planning is your opportunity to leave a legacy on the off chance that you never attain an advanced age. 

Advance medical directives are extremely important for everyone. Even if you are young and healthy, you never know when an emergency could arise, and you will need those documents to fall back on. For those who are older or anticipate that they may become incapacitated in the near future, these documents are critical. Living wills, medical powers of attorney, and Do Not Resuscitate orders are your voice when you can no longer speak for yourself. Everyone has their own wishes regarding what types of care they would or would not want to receive should they become incapacitated and seriously ill. Creating an incapacity plan to express these wishes is the first step. Making sure that your wishes are going to be carried out in practice is equally important. 

Steps You Can Take Toward Ensuring That Your Wishes Are Respected

You know what your wishes are better than anyone else. Unfortunately, not everyone may agree with your decisions. Family members sometimes make irrational decisions during times of emotional stress, especially when a loved one seems to be dying. Some measures you can make to keep your documents in control of the situation include: 

• Visibility - If you do not wish to be resuscitated, make sure that any emergency responders will see your DNR before they start the process of reviving you. Hang a copy above your bed or over your favorite chair. Other documents should be kept somewhere that they can be easily located. 
• Choosing the right POA - Think very carefully about who to name as your medical power of attorney. Make sure this individual understands and respects your wishes and is prepared to carry them out, no matter what. For example, if you know that your sister has deeply held religious views about preserving life at all costs, when you would rather be allowed to pass away peacefully in certain situations, consider someone else. 
• Distributing copies - Your health care team should have a copy of any advance directives you have made. If you live in a care home, they should have your documents on file, as should the hospital you normally use and any hospital you may be taken to in an emergency. Your power of attorney should also have copies. 
• Clarity - Make sure that your wishes are expressed as clearly and explicitly as possible. Be as specific as you can. 
• Put it in writing- If you do not already have advance directives, the time to make them is right now. No amount of talking about what your wishes would be with your loved ones can help you if you do not follow through with creating legally binding documents. 

Your attorney will also be able to give your further advice based on your own unique situation.