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Texas estate planning lawyerPeople have a lot of different reasons for avoiding estate planning. Some are uncomfortable thinking about their mortality or the possibility that they could become incapacitated later in life. This is quite common. However, having a plan in place can actually alleviate some of the fear surrounding these things. Knowing that your loved ones will be taken care of when you are gone, or knowing that your wishes would be followed should you become incapacitated, may give you some peace of mind. 

If you have been reluctant to start the process of estate planning, now is the time. The sooner you get on board with this type of planning, the sooner you can stop worrying about it. With the help of a qualified estate attorney, the process may be faster and easier than you think. 

What if I Pass Away Without a Will or Trust?

Testamentary planning - deciding what will happen to your property when you are no longer here to enjoy it - can ease the stress on your loved ones at a time when they will be grieving. When you leave a will or trust, the process of administering your estate is likely to go relatively smoothly. However, if there is no testamentary plan in place, your family’s only option will be going through intestate probate. 

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San Antonio estate planning attorneyThe differences between wills and trusts are sometimes a source of confusion. Deciding whether you should have a will, a trust, or both, can be difficult, and is best done with the help of an attorney who understands your situation and needs. Everything from your family structure to the size of your estate to the nature of the property you own can influence the type of testamentary documents you use. In many cases, both a will and a trust can be used in conjunction to form a strong, cohesive estate plan. Because there are so many variables at play, it is generally a good idea to work with an attorney to create these important legal documents. 

Who Needs a Will?

Those with minor children almost invariably need a will for the purpose of naming a guardian. Parents can designate the individual they would like to become their children’s guardians in the event that both parents pass away while the children are still minors. 

The major downside of a will is going through probate, which can be expensive and time-consuming. However, Texas does offer a simplified probate procedure for smaller estates. A simple will may be the most expedient way to pass along estate property for those with less complex estates. 

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Bexar County estate planning lawyerThe term “irrevocable” frightens a good many people out of taking advantage of this type of trust. Many people are afraid of putting their assets into a trust that they will not be able to take back later, which is entirely reasonable. However, there may be less risk involved with creating an irrevocable trust than you might think. The benefits of using an irrevocable trust may outweigh the risks in a number of situations as well. Finally, there are legal means for modifying even an irrevocable trust under certain circumstances. A qualified estate planning attorney can help you determine what types of trusts make sense as a part of your comprehensive estate plan. 

What Are the Benefits of an Irrevocable Trust?

The major goal for most people who create an irrevocable trust is asset protection. Assets contained in an irrevocable trust are given a rather high level of protection against creditors, judgments stemming from lawsuits, certain taxes, and others. Those the named beneficiaries owe money to will not be able to access funds contained in the trust. Since the beneficiaries cannot make voluntary withdrawals, they generally cannot be compelled to make withdrawals to pay debts. 

Is There Any Way to Modify an Irrevocable Trust?

Yes and no. In general, you cannot revoke or cancel an irrevocable trust by its very design. However, should the situation drastically change so that modifying the trust becomes necessary, there are legal strategies that can be employed. The particular strategy that your attorney may suggest will depend on a number of factors, including the language used in the creation of the trust itself. 

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San Antonio estate planning lawyerLearning that a loved one who has passed away left no testamentary estate plan can be upsetting. You may wonder why your family member did not take the time to draw up a will or trust. Alternatively, you may have discovered that while your loved one tried to write down some testamentary wishes, he did not do so in a way that is legally effective. There are a wide variety of reasons that some individuals do not have any estate plans. Many people simply do not think they need one, but they are generally mistaken. If you have been thinking about beginning an estate plan but are hesitant, speaking with an attorney may put your concerns to rest. 

Why Do Some People Not Leave Estate Plans?

Estate planning can sometimes be a very personal field of law. The topic can be a sensitive one for some individuals or families. However, the estate property will eventually need to be handled one way or another. It is much easier on surviving loved ones when there is a solid plan in place to guide them. Reasons people may refuse estate planning include: 

  • Estate size - Those who expect to leave smaller estates may feel that creating an estate plan is unnecessary. This is not the case - using a simple will or trust to manage a small estate can save your loved ones time and money in the future. 
  • Age - Younger people may not see the need for a will or trust. They may not have a spouse or children, and they rarely expect to pass away any time soon. However, planning for the unexpected is a wise move. When a death is unexpected, it can create turmoil for the surviving families. Having an estate plan in place can ease the burden on a family during what could be a very difficult time. 
  • Discomfort - Many people simply are not comfortable with the thought of sitting down and deciding who should receive their property when they die. Certainly, considering your own mortality can be unpleasant, but it is important. The process may not take as long as you expect, and it will be hugely beneficial for your loved ones. 
  • Error - Sadly, some people think they have a valid will in place and they do not. Wills made without the assistance of a Texas attorney may not be legally effective. 

If you have other concerns that are keeping you from estate planning, talking them over with an attorney may help. The process may be easier and more helpful than you think. 

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Texas probate lawyerMany people these days aim to avoid probate entirely by using trusts to control their estate property. However, probate is inevitable for some. Whether your family member died intestate, used a will, or ended up with a loose asset controlled by a pour-over will, you may need to go through the Texas probate process. Many people find having the assistance of an experienced attorney invaluable during this time. Depending on the size of the estate and what, if any, problems arise, probate can potentially be a long and complicated process. 

What Challenges Often Come Up During Probate? 

Even when it seems that everything is in order and probate should go as smoothly as probate can go, unexpected problems can arise and complicate the situation. A few common reasons that probate may be more challenging than usual include: 

  • Missing property - It sometimes happens that property identified in a will cannot be located. This often involves specific personal items. A will may provide, for example, that one child should receive a diamond necklace. If no one can find the necklace described when it comes time to administer the estate, the situation will need to be addressed. The decedent may have already sold or given away the necklace, but there could be a more nefarious reason for the property’s absence. 
  • Problematic executor - The executor of an estate has a lot depending on them. When an executor is unwilling, unresponsive to communications, or ineffective, getting through probate can feel like an uphill battle. Enlisting an attorney to assist may be one solution. It is sometimes possible to remove an executor.
  • Will contests - Sometimes, a dissatisfied relative who feels slighted will bring a challenge in the hopes of increasing her share of the estate. Other times, there are legitimate reasons to question the validity of a will. You yourself may have reason to suspect that something is amiss with your loved one’s will - perhaps you believe they were coerced, or not competent to sign s will. Regardless of the reason, will contests will bring probate to a screeching halt. 
  • International estate property - If the estate involves property located in a country other than the United States, probate is likely going to be quite complicated. You will likely need professional assistance to move overseas property through a probate court. 
  • Missing will - You know your family member made a will. You have talked about it at length. However, when the time comes to administer the estate, the will is nowhere to be found. There are ways of trying to locate missing estate plans, but you will need to do so in a timely fashion and may require a lawyer’s help. 

If you are facing any probate challenge, the situation may feel impossible. Probate can be difficult even under the best circumstances. Fortunately, most probate issues can be overcome by an experienced probate lawyer. 

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Texas estate planning attorneyFor parents who still have minor children to worry about, protecting them is probably your number one estate planning goal. Many parents would want their entire estate to benefit their children should the child be left without a suitable living parent. Leaving estate property to a minor in Texas can be slightly more complicated than leaving it to an adult. Minors cannot take possession and control of their inheritance until they reach legal adulthood. A responsible adult must step in and manage the inheritance for the children’s benefit until then. Often, multiple estate planning tools are needed to adequately protect children’s interests and well-being. 

What Happens if I Leave Property to Children in a Will? 

The probate court will need to appoint a guardian of the estate to manage any assets left to the children. There is no guarantee that the guardian you want will be the one appointed. This matter is left to the probate court, which will do what it thinks is in your children’s best interest. The guardian would be a fiduciary, meaning that he is responsible for managing the estate property strictly in the children’s best interest. 

However, courts closely supervise guardianships for minors. Every expenditure of estate funds must be accounted for. The entire process can be both complicated and expensive. Fortunately, there are ways around this. 

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Bexar County estate planning lawyerWhen a will is contested, the situation can quickly get ugly. Litigation regarding estates usually occurs amongst close family members, like in the case of siblings after the death of a parent. Will contests have the potential to permanently divide a family. If you anticipate that your loved ones - or not-so-loved ones - could potentially wind up taking each other to court over your estate, there are steps you can take to head off any potential conflict. An experienced estate planning attorney can help you create a more sound will or will alternative that reduces the likelihood of a contest. 

Who Should Take Steps to Prevent Future Conflict Over an Estate?

Some people may not find it necessary to take any particular measures to avoid a will contest. For others, it can be extremely important. You should consider taking precautions in these circumstances: 

  • Family conflict - If your closest relatives, including your spouse, children, or living parents, are already in a state of conflict, it is reasonable to anticipate that they may have a dispute over your estate as well. 
  • Disowned relative - If you have cut an immediate relative out of your estate plan, it is best to prepare in case they resort to contesting the will to get a share. 
  • Unusual bequest - Unexpected bequests or other big surprises in the will could cause your family to question its validity. 

How Can I Prevent Future Will Contests?

There are a few methods your attorney may use to help prevent future estate litigation. They include: 

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san antonio estate planning lawyerThe idea of creating a trust that you cannot later revoke or amend can be frightening to some people. Initially, very few are willing to place any assets into an irrevocable trust out of fear that they will not be able to change their mind or get their property back. There are, however, certain advantages to irrevocable trusts. Whether an irrevocable trust makes sense as part of your overall comprehensive estate plan will depend on your individual goals and needs. In some situations, irrevocable trusts can save you - and your future beneficiaries - substantial money. It is best to work with a qualified estate planning attorney to determine what types of trusts or other testamentary instruments make sense for you. 

What are the Financial and Legal Advantages of an Irrevocable Trust?

Irrevocable trusts may not be right for every estate plan, but they can be invaluable tools when used correctly. Whether this type of trust may work for you will depend on your unique circumstances. 

Advantages of an irrevocable trust in Texas can include: 

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San Antonio powers of attorney lawyerPlanning for the possibility that you may one day lose the capacity to make medical and financial choices for yourself is a very wise thing to do. It can be an emotionally charged topic - facing the likelihood that you will experience incapacity in your lifetime can be difficult. However, there are actions you can take right now that will allow you to retain a measure of control should that day come. The time to make decisions about your later-in-life care is now, while you have the capacity to do so. An estate planning attorney can help you prepare a series of documents, such as a living will, that make your wishes known. 

Why is Incapacity Planning Important? 

Failing to plan for incapacity can leave a lot to chance. If you do not have a thorough plan in place, the court may need to appoint a guardian for you. There is no guarantee that the court, your guardian, your doctors, and others involved in your care will know and respect your wishes. 

Incapacity planning allows you to voice your wishes in advance, and to appoint people you trust to manage your financial and medical affairs. 

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San Antonio probate lawyerFor many people, probate is a dreaded process. It can be extremely complicated and flush with legal technicalities, deadlines, and mandated procedures that must be followed in the right order. If the difficulty of the probate process is not enough of a deterrent, the expense should be. Probate courts can also charge fees that many feel are exorbitant, and the process may leave your estate exposed to hefty tax burdens. It can also take months to years before a single beneficiary actually receives anything out of the estate. The reasons probate might be undesirable are plentiful. Fortunately, with the skill of an experienced estate planning attorney, there are ways to keep most or all of your assets out of probate. 

When Does an Estate Need to Pass Through Probate? 

For a long time, a will was the main way that people passed on their assets after death. This is rapidly changing. All transfers of property done by a will must pass through the probate process. So, if you use a will as your sole testamentary document, your entire estate will need to go through probate. Any property that is controlled by a will is subject to probate - which is why many are turning to trusts as an alternative.

Estates that are not controlled by any testamentary legal documents also must go through probate. When a person dies without having made an estate plan that governs the disposition of their property, the courts must step in and decide who should receive what. The laws of intestacy govern in this case, so what is left of the estate after the probate process will pass to the nearest living relatives. 

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