Category: Probate Attorney

Harris County Probate Lawyer: Issues to Consider with an Out-of-State Probate

It has become more and more common now to see clients come in with probate cases that need to be dealt with in multiple states. Many seniors today are “snow birds,” meaning they spend their winters in states with warmer climates while keeping their actual residency in the state they have spent most of their lives in.

These seniors often own property in the state where they spend their winters, whether it is real property like a vacation home or timeshare, or even tangible property like a car, boat, or financial account. When the senior passes away, a situation is created where an out of state or ancillary probate proceeding must take place to administer the out-of-state property. Whatever the case may be, clients dealing with an out of state probate often need help since they are dealing with two or more sets of probate rules and regulations, all of which differ from state to state.

Texas probate lawyers find that one of the biggest issues involving an out-of-state probate proceeding is cost. Typically, you will need to pay probate court fees for each property held under a different probate court jurisdiction. In addition, you may be faced with extra accounting and legal fees. If possible, you should try to find an attorney who is licensed both in the home state of the deceased and the state where the ancillary probate is taking place.  While the fees may still be higher than usual because the probate is out-of-state, it will still most likely be cheaper than hiring multiple attorneys to handle one estate.

Another serious issue can arise if the decedent did not leave behind a Last Will and Testament. When this happens, the probate court will often order distributions of the estate based on the laws of intestacy. The problem with out-of-state probates is that every state has different laws of intestacy, meaning the heirs in one state may not be the same as the heirs in another. This is a very tricky situation and one where Texas probate attorneys urge their clients to proceed with caution as it may cause additional stress for already grieving family members.

Are there ways to avoid an out-of-state probate proceeding? Yes, but it all depends on the state where the additional property is held since, as noted before, every state has different laws concerning probate. Some of the techniques Harris County probate lawyers use to get around an out of state probate include placing the property into a revocable living trust, owning the property jointly with someone else, or drafting a type of deed where the property is transferred upon death. However, probate lawyers caution that this type of planning must be done BEFORE death, and attorneys must be consulted to make sure these techniques will actually work in the state where the property is held.

If you are need help with an out-of-state probate or would like to plan to avoid out-of-state probate proceedings, please contact our Houston law firm at (281) 218-0880 to set up a consultation.

Harris County Probate vs. Non-Probate Property – Know the Difference

Many people think that as long as your will clearly defines how you would like to transfer your property at your death, it will be an easier, straight forward process. However, this is not always the case.  Especially when it comes to probate in Harris County. There are many different rules that can impact how assets are transferred in a way that maybe you had not intended.

Probate is the legal process of overseeing the transfer of property of an individual that passes away without a living trust.  During the creation of your will, you will name an executor to oversee the process of carrying out your final wishes and the transfer of your assets that are in your name.

But, does everything you own have to go through this probate process—which is public, easy to contest and can take a long time?  It depends.  Property can become non-probate property depending on whose name is listed as the owner. Property will be considered non-probate property if:

  • There is a joint owner with right of survivorship
  • A beneficiary is already designated on a life insurance or a retirement account
  • Property is owned by a trust with named beneficiaries

In these cases, joint owners and beneficiaries displace the request of the will. At the time of death the property will pass automatically to the joint owner or beneficiary without the approval of the probate court.

The bottom line is that your will is not necessarily the final authority on where your property and assets will go at the time of your death. Knowing the difference between which assets are subject to probate and which are not can save your family a lot of heart ache. If you want to be certain that your family gets the money and property that you want to leave to them, call our office at (281) 218-0880 to schedule a consultation.

Celebrity Estate Panning Leaves a Lot to Be Desired

One would think that big stars like Prince would have a team of high-powered advisors, compared to the average Joe and Jane. But that isn’t so, says CNBC in the recent article “Don’t make these celebrities’ estate-planning blunders.” 11-08-16

Celebrities make the same mistakes. Here are a few:

Mistake #1: No Will. Nearly two-thirds of Americans don’t have a will. This has included the likes of Abraham Lincoln, Prince, Sonny Bono, Jimi Hendrix and Pablo Picasso. Dying without a will can mean numerous potentially disastrous consequences, like your assets not being distributed to those you intended or family in-fighting. The state intestacy laws apply and they are rigid regarding who gets what share of the estate. And without specific instructions from the deceased, an estate may be fought over in court by family members who think they deserve their fair share.

Mistake #2: No Current Will. Signing a will is just the beginning: you need to regularly update your estate planning documents and beneficiaries when your financial and personal situation changes. Look at singer Barry White. He was separated but not divorced from his second wife at the time of his death. As a result, his wife got everything. White’s live-in girlfriend of several years got zero.

Mistake #3: No Tax Plan. Even if you’re not ultra-rich and your wealth is well below the federal estate tax threshold of $5.45 million per person this year, there may be state estate taxes. Poor planning could force your heirs to sell valuable or sentimental items because there are insufficient liquid assets to pay the tax. Joe Robbie’s family sold its stake in the Miami Dolphins and Joe Robbie Stadium to pay estate taxes.

Mistake #4: No Reference to Personal Property. Comedian Robin Williams’s family has battled over his film memorabilia. And Martin Luther King Jr.’s kids fought over his Bible and Nobel medal. People forget about personal property in their estate planning, which can trigger lots of fights over who gets family heirlooms, collectibles and Dad’s Barry Manilow record collection. Be specific with descriptions.

Reference: CNBC (Sept. 17, 2016) “Don’t make these celebrities’ estate-planning blunders”

Saving the Home with Long-Term Health Care Demands

The largest asset most people have is their family home. If a senior is in a situation where his or her long-term care insurance is exhausted and the other assets are used to pay for care, how does one protect the home from being taken?

Long-term care insurance is important; however, it’s also critical to review and revise your financial and estate plans regularly as your situation changes, according to NJ 101.5’s article “Medicaid and protecting your home.” 10-27-16

Speak with an experienced estate planning or elder care attorney to plan for your individual circumstances. You should also have your will, general power of attorney, advance health care directive or other estate planning documents reviewed or drafted.

As far as how Medicaid works, it has both income and asset limitations that require a recipient to become impoverished to qualify. For Medicaid eligibility, your primary residence is exempt provided you or your spouse live in the house or intend to return to the house to reside. That said, Medicaid will have an automatic lien on any interest in a residence in your name equal to the amount of Medicaid funds you receive. The program will execute on that lien when the home sells or upon death—unless the recipient’s spouse remains an owner of the residence.

To keep people from giving away their property to qualify for Medicaid, there’s a penalty for the transfer within five years of applying for Medicaid. The penalty is calculated by dividing the value of the assets transferred by the state’s Medicaid average monthly cost of a nursing home. The penalty period starts only after an individual enters a nursing home and would otherwise be eligible for Medicaid, not at the time of the transfer. During that time, Medicaid won’t pay for the nursing home. Private funds have to be used.

There are exceptions for undue hardship but these are rare. One exception is for the transfer of a residence to a child who has lived in the home for at least two years before the applicant enters a care facility and who during that period provided the applicant with care and services that enabled that person to live at home. In that situation, the transfer of the house to the child doesn’t result in a penalty. The house won’t be subject to a Medicaid lien.

Similarly, gifts and sales that are less than fair market value within five years of applying for Medicaid are subject to a penalty. But before a transfer is made, there are also income tax considerations which may significantly impact both the transferee and the applicant. If there is no mortgage, another option is a reverse mortgage, which lets you withdraw the equity in the property with the loan being paid back at death or once the property is permanently vacated.

Medicaid is a complex and constantly changing area, so talk with an experienced elder law or Medicaid planning attorney who is current on all the rules that may impact your decisions.

Reference: NJ 101.5 (September 12, 2016) “Medicaid and protecting your home”