Category: Wills

Pros and Cons of Wills and Living Trusts | Harris County Will and Trust Lawyer

As a Harris County will and trust lawyer, I realize that those of us in the estate planning industry often use technical language or “legal jargon” that is hard for most people to understand when setting out to get their affairs in order.  In fact, even the words “estate planning” can confuse people by making seem like you only need to plan if you have a large estate.  Not true!

There are other terms that you have probably heard along the way that can be equally confusing, as they are similar in theory, but different in execution. For example:

  • Estate planning versus Asset Protection
  • Healthcare Directive versus Advanced Directive versus Living Will
  • Power of Attorney versus Executor of an Estate

However, there are probably two estate planning terms that you will hear more than any other; trust and will.  These are key documents that do essentially the same thing, in theory. They both specify your last wishes and appoint someone to carry them out. However, there are reasons you would choose one over the other and sometimes you might choose both!

Hopefully we can help you understand the basic differences so that you have an idea of which legal tool (or combination of tools) would be best for you and your family.

Living Trusts

Pros

  • Ensures privacy, keeps your affairs out of the public record and helps you avoid probate.
  • If you own property in another state, a living trust may keep you out of that state’s probate court.
  • Some trusts offer protection from creditors, lawsuits and predators during your life.
  • You can designate a person who can take over management of your assets in case you are unable to function or incapacitated during your
  • You may not need to hire a lawyer when it comes time to distribute your assets.

Cons

  • A living trust can be more expense to set up initially.
  • You will also have to transfer ownership of all assets that are placed in the trust.
  • It can make it more complicated if you want to refinance property.
  • You cannot create a guardian for your children in a living trust. (However, you would be able to add a designation of guardian to supplement your trust that would take care of this.)

Wills

Pros

  • Setting up a will is less expensive and much simpler.
  • Creditors can only bring claims against your estate for a certain period of time.
  • You may name a guardian for your children.
  • You do not need to transfer any property.

Cons

  • After probate, your will becomes a matter of public record.
  • Probate can be take years to resolve and can be expensive.
  • A will does nothing for you while you are Your loved ones will be unable to manage or transfer assets using your will if you are incapacitated and/or unable to function.

There is quite a bit more to it, but this gives you an idea of the different techniques. If you really want a plan in place that will work when you need it, it is best to talk to a Harris County will and trust lawyer. Only an attorney that has had extensive experience can understand the nuances that could impact whether you have solid plan or simply a stack of paper that will not stand up in court. We help families throughout Houston gain the peace of mind that only comes with knowing your family will be okay no matter what. Call us today and mention that you read this blog and we will give you a free consultation so you can start the ball rolling on this important task.

Do I really need an attorney to create a Will in Texas?

We get this question a lot: “Do I really need an attorney to create a will in Texas?” Everyone has seen the online companies that allow you to create a will for $99. Some office supply stores sell the forms so you can do it yourself for even less. So with all these cheap alternatives do you really need an attorney?

Perhaps you have guessed my answer. It is “Yes!” of course. But, here is the “why” behind that answer that you might not be expecting…

There is no such thing as a one-size-fits-all will or trust.

Every person’s situation is different. You may be from a traditional family or you could be a part of a blended family – these situations might take different estate planning strategies. The DIY will and trust companies do not adapt to the nuances that make your family unique.

There is no personalized service.

A qualified estate planning attorney will meet with you and go over all the goals that you set for your family. An attorney will help you make very important decisions such as who you will name as executor. An attorney will bring up issues and ask questions that may cause you to choose other people than you originally thought.

No one to turn to when the will or trust is executed.

After you pass away, your executor will take over. The position of executor comes with many responsibilities and there are often questions that arise. Who will he or she turn to when they have questions? They are not likely to get the right answer from the information on a website.

When it comes to creating a will or trust, you really do get what you paid for. Actually, if done incorrectly, that will or trust may not hold up during probate, in which case it is not even worth what you paid – and it could cause pain and suffering for your loved ones. We would love to chat with you about creating an estate plan for your family. We even offer a planning session so that you can make the decision with absolutely no obligation. Call our office at (218) 281-0880 and schedule one today.

Houston Will and Trust Lawyer Offers a Checklist for Trustees

If you have been asked to serve as trustee for someone’s trust, it is your responsibility to successfully carry out that person’s wishes, as well as follow state and federal laws. The role of trustee is an important one, and if you have never served as a trustee before, you may be thinking, “Where do I start?!” As a Houston Will and Trust lawyer, I hope to provide you some guidance in this area.

We get calls from concerned trustees often and understand that the job can be overwhelming. Our first bit of advice to you is: breathe!  You will get through this.  Next, begin working through the steps below.

  • Read the trust- The trust will have all the information you need to carry out the wishes of your loved one. It is important to read it carefully so that you fully understand what is expected of you.
  • Create a checking account for the trust- A checking account should be set up with the money from the estate. You will need funds to make distributions and payments, and you will want to keep track of them in a checking account that is solely used for purposes of the estate.
  • Think of the beneficiary’s interests- You have a fiduciary duty to the beneficiaries of the trust, so it is important to always think of their interest when it comes to the trust.
  • No personal finance dealings with the trust– This one may seem obvious, but it should still be stated that you should not borrow money or lend money to anyone from the trust.
  • Provide anyone listed in the trust with a report of annual account activity- You can simply provide a copy of the checking and investment account statements, or, if you wish, you can present a more formal trust report prepared by an accountant or attorney.
  • Invest trust funds prudently and productively– For this step we strongly suggest that you consult with an investment professional. It is important to invest the funds wisely and have a diverse portfolio, but steer clear of anything too risky.
  • Stay in contact with the beneficiaries– It is important to understand the needs of the beneficiaries since ultimately you are working for them. Keep them informed.
  • Be aware of any beneficiaries receiving public funds– If any of the trust’s beneficiaries receive public assistance, you need to make sure any proceeds of the trust do not jeopardize their benefits. This is especially important when it comes to adults and children with disabilities.
  • File annual tax returns

Being a trustee is a big responsibility and hard work. But the good news is that you do not have to do it alone. Our Houston Will and Trust Lawyers can help you through the process to make sure that you are taking the right steps. Contact us today at (281) 218-0880 to schedule a free consultation.

Mom Might Have Dementia, Can She Still Write a Will in Texas?

If your elderly parent is becoming more forgetful or is demonstrating other unusual behavior, you should get them to a doctor right away to be checked for dementia. More than 3 million cases of dementia are diagnosed each year and is most prevalent among people 65 years old or older. Dementia is often overlooked at the beginning because sometimes the symptoms are very vague, but if caught early, there are steps that you can take to improve your loved one’s cognitive health.

Unfortunately, many people fail to put an estate plan in place and only take action during a medical crisis or after a diagnosis such as dementia. In some of those cases, it is too late due to the client’s diminished capacity. You should not, however, assume that it is always too late.

In order for the legal documents to be valid you must be able to prove that the signer had mental capacity at the time they signed. So even if an individual is suffering from dementia as long as they still have periods of lucidity they may still be competent enough to sign a will in Texas.

The following criteria must be met in order for an individual to be considered mentally competent:

  1. They understand the nature and extent of the property that they own.
  2. They remember who their relatives and descendants are and are able to select who should inherit their property.
  3. They understand the function of a will.
  4. They understand how all of these things are put together to form and estate plan.

It is extremely important that all 4 of these criteria are met when executing the will or you could be leaving the door open for other family members to contest the will. If the will is successfully contested it will be considered invalid and the estate would have to pass through the state’s intestacy laws. Or, if there was a prior valid will, that would be used to settle your parent’s estate. If your parent is showing early signs of dementia, call our office right away for a free consultation. We can make sure that your parent’s wishes are known and documented in a way that will avoid a court challenge.