Irving Estate Planning Attorney Answers Frequently Asked Questions About Wills

Irving Estate Planning Attorney Answers Frequently Asked Questions About Wills.

Can I use a computer or online program to prepare a will?

You can but this should be done with extreme caution.  If the will does not dispose of all of your property, have appropriate language for an independent administration, or include a self proving affidavit, you could actually increase the cost of probating your estate.  Other problems could arise from using a software program as well.

If I have a will from another state will that work?

Since all wills are based entirely on state law you should have an out of state will reviewed by an attorney.  The will may be effective in Texas but not provide for an independent administration or have a self proving affidavit.  These features make the probate process in Texas quicker and easier.  Furthermore, when you are moving from a non-community property state your will may not address what is to be done with the community property you have acquired in Texas.

Can I handwrite my will?

Yes, you can handwrite your will.  It must be all in your handwriting, dated and signed.  This is certainly preferable to no will but may not address all the issues necessary to smoothly probate your estate.

Can I make a verbal will?

Texas no longer recognizes verbal wills.  You must have a written document of some type.

How often do I need to change my will?

You should review your will every 3-5 years or when there is a major life change.  Major life changes such as births, deaths, marriages and divorces may result in a desire to change the terms of your will.  After reviewing the will if all the terms are still an accurate reflection of your desires and no on named in the will has passed away then there is no need to make a change.

 Irving Estate Planning Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area.  She provides a variety of legal services for individuals and small business owners.

Irving Attorney Explains What Happens To Bank and Brokerage Accounts After Death

Irving Attorneyexplains what happens to bank and brokerage accounts after death.  Proper planning will make transferring these account a simple process for those left behind.

The first step is to determine what type of account you have.  You can determine what type of account you have by contacting your bank or reviewing your signature card.  Each bank will have specific terms associated with each account type.  There are some industry standards but you should contact each financial institution to determine the terms of the accounts you own.

Single Party Account

If you have a single party account which means only one person is named on the account, then you have two possible outcomes.  First, if the account has a pay on death beneficiary then it will go to that person.  The bank will transfer the funds in the account to that beneficiary upon proof of death.  Second, if the account has no pay on death beneficiary then it will pass according to the will or if no will exists to the owner’s heirs.

Multi-party Account

If you have a multi-party account which means two or more people are named on the account, there a several outcomes.  First, any person named on the account can withdraw all funds in the account.  However, each person only owns an amount equal to their contribution.  Second you need to determine if it was an account with survivorship rights.  If there are survivorship rights then the surviving people named on the account own all the funds in the account.  If there are not survivorship rights, then the money in the account owned by the person who has died  passes according to the will or if no will exists to the owner’s heirs

Convenience Account

Convenience accounts have two or more names on the account.  On person is the depositor and the second is the co-signer.  The co-signer has authority to write checks for the benefit of the depositor only.  When the depositor dies the money does not go to the co-signer but passes according to the will or if there is no will it the depositor’s heirs.

Brokerage Accounts

They pass in a manner similar to the bank accounts described above.  The terms of the contract you signed when you opened the accounts will prevail.  In many cases these contracts are not controlled by the laws of the state where the account owner lives.  For this reason it is important to discuss your account selections with your attorney to ensure your selections conform to your desired estate distribution plan.

Irving Estate Planning and Probate Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area.  She provides a variety of legal services for individuals and small business owners.

Irving Attorney Explains Why Wills Are Critical For Those In A Second Marriage

Irving attorney explains why wills are critical for those in a second marriage.  The consequences of not having a will are greater when you have more than one family to protect.

Betty and George had been happily married for 15 years when he became ill.  She stood by him as the illness progressed and eventually claimed his life.  They did not have any children together but George had a son and daughter from his first marriage.  Betty and her step children were friendly but not close.

George died without a will.  He and Betty had lived a modest life and he felt there was not enough there to worry about.  However, that is not the way things turned out.  George’s children wanted all the family heirlooms and anything else the law entitled them to receive.  They hired a lawyer and demanded Betty turn over their inheritance.

The Texas statutes addressing inheritance state that if the children of the person who has died are not all also the children of the surviving spouse then the community property does not go to the surviving spouse.  The surviving spouse retains their half of the community property but the community property of the person who died is divided between the children.  In this case, George’s children will each get half of his community property or one fourth of George and Betty’s community property.

The difficulty often arises in how to divide the assets.  The children are entitled to one half of the value of the assets but they cannot prevent Betty from remaining in the house or force her to sell the house.  In your typical case you create an inventory of the assets and assess a value.  This value is then divided in half to determine how much the surviving spouse can retain and what goes to the children.

In George and Betty’s case they owned a home, 2 cars, household furnishings, they each had an IRA and a modest checking and savings account.  Betty will sell one of the cars, give them the family heirlooms and each child will own a small portion of the home.  If Betty decides to sell the home the children will collect according to their ownership share at the time of the sale.  Otherwise they will collect when Betty dies and her estate is distributed.

If George had a will he could have prevented this family discord.  He could have given his share of the community property to whomever he chose.  This would at the very least have prevented the legal battle.

Irving Estate Planning Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area.  She provides a variety of legal services for individuals and small business owners.

Irving Estate Planning Attorney Explains How Trusts Can Be An Important Planning Tool For Non-traditional families And Same Sex Couples

Irving Estate Planning Attorney explains how trusts can be an important planning tool for non-traditional families and same sex couples.

The use of a revocable trust can be an important estate planning technique for non traditional families and same sex couples.  All estate planning should begin with the four key documents but non traditional families and same sex couples need to take that planning a step further.

A revocable trust is established during a person’s lifetime and the trust document names a trustee and one or more successor trustees to manage the assets that are transferred to the trust.  An individual might name themselves as the trustee and their partner as the successor trustee.  If both partners contribute assets to the trust then they may choose to be co-trustees.  The trust can provide that the individual will manage the assets in the trust until he or she becomes incapacitated or otherwise turns over control to their partner or any other designated individual. 

Upon death, the trust’s assets will not be subject to probate laws, making the transfer of assets private and seamless.  Unmarried partners can use this to transfer property to their partner instead of biological relatives at death.  Also, by naming the partner as co-trustee or alternate trustee, the partner is given access and control over property that might otherwise fall to biological relatives.

There may also be tax benefits to using a revocable trust.  It can postpone the tax implications of transferring property from one partner to the other.  However, there may be tax consequences at death depending on the size of the estate.  There are a number of strategies that can be implemented allowing the partners to reduce the tax implications of the transfer of assets at death.

Finally, it is prudent to use a revocable trust, instead of an irrevocable trust.  Since marriage between same sex partners is not currently recognized, there are also no corresponding divorce protections in the event two partners no longer wish to be attached.  A revocable trust can be easily dissolved allowing the partners to divide their assets if the relationship ends.

The revocable trust can be an excellent tool.  Non traditional families and same sex couples should work with an attorney to see if a revocable trust should be added their estate plan.

Irving Estate Planning Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area.  She provides a variety of legal services for individuals and small business owners.

Irving Attorney Discusses Estate Planning for Business Owners.

Irving Attorney discusses estate planning for business owners. 

Business owners like all individuals should start with the basics.  There are four documents that form the cornerstone of all estate planning.  They are a will, durable power of attorney, medical power of attorney and directive to physcian (living will).  Non-traditional families and same sex couples should consider some additional documents to provide similar coverage available to married couples under the law.

Business owners have unique needs beyond that.  They need to protect their business also.  This may include preparing for a transfer to a known or unknown future owner.  It could also provide for the smooth dismantling of the business.  Providing for either circumstance will remove a burden from the loved ones left behind.

Many business formation documents will address what is to happen in the case of divorce, disability or death.  But these documents should be reviewed regularly to see if they address all potential scenario’s and if the solutions are still viable.  If your business formation documents do not address these issues then you must consider whether to modify your formation documents or address these issue in your will. 

Using your will to define how to transfer or wind up your business can resolve any issues not addressed in the formation documents.  Addressing these issues in your will can be easier than modifying formation documents in some cases.  However, it is also important to ensure someone has authority to run the business if you are disabled. 

Business owners should work with an attorney to ensure they have an estate plan designed to meet their unique needs.  Proper planning will allow you to protect those you leave behind and ensure you leave the legacy you desire.  Every business owner has a dream for the future of their business don’t let poor planing derail that future. 

Irving Business Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area.  She provides a variety of legal services for individuals and small business owners.

Irving Estate Planning Attorney Discusses the Importance of Beneficiary Designations For Non-traditional Families and Same Sex Couples

Irving estate planning attorney discusses the importance of beneficiary designations for non-traditional families and same sex couples.

A comprehensive estate plan begins with a will and directives.  But it would be incomplete without considering beneficiary designations.  This enables every aspect of the plan to work together toward providing for your loved ones.  A review of how all assets are titled and current beneficiary designations will ensure your goals are achieved.

It is important to review beneficiary designations on life insurance policies.  Because insurance proceeds can be considerable, it is critical to ensure that the correct person is designated as the beneficiary and such designation complies with all necessary requirements.  In many cases you may designate more than one beneficiary or a trust may be the beneficiary.  This will allow you to provide for you partner and your children or other loved ones.

In order for a retirement plan participant’s partner to be the recipient of benefits upon death, the partner must be designated on the appropriate beneficiary designation form.  If not, the default beneficiary will likely be the spouse or other biological relation of the participant, as defined under federal law which generally does not recognize same sex marriage. The participant should contact their human resources department and request a summary plan description for their retirement plan.  This should indicate who the default beneficiary is.  Beneficiary designation forms can be requested from a company’s human resources department or on their benefit plan administrator’s website. 

If the retirement plan participant has been married to an opposite sex individual and a divorce is not yet final, regardless of who is designated on the beneficiary designation form, the prior spouse would be entitled to the retirement plan benefits, unless he or she gives her consent to the designation of a different beneficiary.

All financial accounts can pass by beneficiary designation.  It is important to check with your bank and financial planner to ensure your beneficiary designations are up to date and on file.  If no beneficiary is named then the accounts will pay to the estate.  If there is only one beneficiary this is a minor inconvenience.  If certain accounts are intended to provide for a partner or other family member, a lost or incomplete beneficiary designation can defeat the entire plan.

Beneficiary designations are a key piece in the estate planning puzzle.  Individuals should contact an attorney to make sure they comply with all requirements so their wishes will be achieved.

Irving Estate Planning Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area.  She provides a variety of legal services for individuals and small business owners.

Irving Probate Attorney Explains Probate Proceedings

Irving probate attorney explains probate proceedings.  A probate lawyer can help you select the right proceedings for your situation.

When a loved one has passed those left behind are often at a loss for how to proceed.  What needs to be done?  When must it be done?  Can I delay the process to allow time to grieve?  Following are some general guidelines to help answer these questions for residents of Texas.  Since laws vary from state to state and change over time, you will want to consult an attorney to ensure you have information relevant to your situation.

There are several questions that must be answered to determine what options exist and what proceeding is required. 

• Is there a will?
• What type of property is owned?
• Are there unpaid debts of the estate?
• How much time has passed since the death of your loved one?

A standard probate proceeding may be preferred or required if there is a will, property such as a home or car is owned or debts of the estate exist.  However, it must be less than four years since the death of your loved one.  Texas allows for indendent administration if the appropriate language is included in the will.  Independent executors can be appointed without the appropriate language if all of the beneficiaries agree to it.  If there is no language and no agreement then a dependent administration will be created.  The key difference between the two is the number of court appearances required.  The independent executor must only appear once where the dependent administrator must get court permission for every decision that is made. 

If a will exists, real estate is owned and the only debts of the estate are a secured lien on the real estate then a muniment of title proceeding can be used.  This procedure is completed with one hearing and must be commenced within four years of the death of your loved one.  No executor or administrator is appointed because nothing is required except transfer of title to property. 

If no will exists and property is owned but the estate is low in value, a small estate affidavit is a proceeding that can be used.  This requires two disinterested witnesses and all heirs join in the affidavit that is submitted to the court.  No executor or administrator is appointed.

If no will exists and property is owned or there are debts of the estate or and there is a question about who are the heirs, then a determination of heirship is the starting point.  There is no deadline for this procedure as there is with a standard probate.  The court will appoint an attorney ad litem if there are unknown heirs or heirs whose whereabouts are unknown.  If an administrator or executor is needed to handle the estate then this proceeding is filed in conjunction with one of the probate proceedings detailed above.

An affidavit of heirship can be used whether a will exists or not.  Two disintrested witnesses must swear to facts of the deceased’s life before a notary.  The affidavit is then filed in the deed records.  However, the affidavit does not become effective for five years. 

In many cases, the death of a loved one will be followed by some type of legal proceedings.  Some people feel a need to postpone any proceedings until some time to grieve has passed.  While others want to get the process over with so that grieving and then life can move forward.  The best way to ensure you loved ones have either option is with advanced planning.  An estate plan including a will provides the most control for those who are left behind.

Irving Probate Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area.  She provides a variety of legal services for individuals and small business owners.

Irving Estate Planning Attorney Discusses Advanced Planning Documents That Are Critical For Non Traditional Families And Same Sex Couples

Irving Estate Planning Attorney Discusses Advanced Planning Documents That Are Critical For Non Traditional Families And Same Sex Couples.

Planning for all families begins with the same foundational estate planning steps.  However, if you are a non traditional family or in a same sex relationship additional steps are necessary to ensure your loved ones are protected and your wishes followed.  If you want your partner, instead of your biological relatives, to make decisions on your behalf additional steps need to be taken.

The first step to consider is preparing a document regarding disposition of your remains following death.    This is a relatively straightforward document that allows you to specify who should be responsible for making decisions regarding your body and funeral services after you have passed.  The Texas Health and Safety Code provides that, unless a person has left written instructions regarding the disposition of their remains following death, certain individuals will have the right to make decisions on their behalf.  This list of people is very specific, as is the order in which they obtain such rights.  The individuals listed include a surviving spouse, adult children and siblings, among others.  Notably, however, the person designated in a written instrument signed by the deceased will have the right to make any decisions, regardless of whether he or she is related by blood or marriage. Specific requirements regarding the format and content of this document must be satisfied to comply with state law.

The second step to consider is preparing a declaration of guardian in advance of need.  This document allows you to specify who should be appointed your guardian if you become disabled.  The Texas Probate Code provides that any person may in writing declare certain persons and disqualify certain persons to serve as guardians of the person or estate.  The designated person must still comply with the statutory requirements should they be called upon to be the guardian.  However, they will be given preference over biological family members.  This designation can also change the order biological family members are considered.  For example, designating a sibling will place that person ahead of a parent or spouse.  Specific requirements regarding format and content of this document must be satisfied to comply with state law.

Every state has different requirements regarding who will have the right to make decisions if you become incapacitated or following a person’s death.  Therefore, all families should work with an attorney to develop a plan that meets their needs.  However, this is particularly important for non traditional families and same sex couples because the law does not favor these relationships and the best person to make a decision may not have legal standing to do so.  A complete estate plan anticipates the presumption in favor of blood relatives and marriage and creates a plan that is best suited for the individual’s situation.

Irving Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area.  She provides a variety of legal services for individuals and small business owners.

Irving Probate Attorney Explains Property Transfers

Irving Probate Attorney Explains Property Transfers.  What happens next and how to get it done can be a difficult and confusing process.

The death of a loved one can bring a great deal of stress and confusion into the survivor’s life.  What is to be done with the home, furnishings, financial accounts and pets?  Who is responsible and how does it get done?

When someone dies any property owned must be transferred to a new owner.  This transfer takes a variety of forms and which form depends in part on what the deceased owned.  Some property can be transferred with beneficiary statements.  While others require some legal step for the transfer to be complete.

When determining what proceedings are required the first question to ask is “Did the deceased have a will?”.  A will acts as the instruction manual for how the property owned at death should be transferred.  If there is no will, then the probate code provides the instruction manual.

The inquiry does not end here but returns to what type of property was owned.  If they own real estate, vehicles or other titled property, a legal proceeding will be required.  This may require a formal probate proceeding in the court or just an affidavit.  A probate lawyer can provide the necessary guidance as to which steps are required.

If they had financial or retirement accounts then beneficiary statements may be adequate.  Certain assets can be transferred with beneficiary statements and pass outside of the instructions of the will or the probate code.  Financial accounts are the most common asset to transfer this way.  When anyone opens a checking account, brokerage account, or IRA a beneficiary statement is completed directing that institution to pay the balance to a specific individual upon proof of death.  401k’s and other retirement plans also require a beneficiary statement and can pass outside of the probate process.

To make the probate process as simple and smooth as possible for those you leave behind create an estate plan.  Review your will and powers of attorney periodically to ensure they still reflect your wishes.  Consult your financial institutions to check your beneficiary statements from time to time to ensure they still reflect your wishes.

Irving Probate Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area.  She provides a variety of legal services for individuals and small business owners.

Irving Attorney Provides an Overview of Planning for Non Traditional Families and Same Sex Couples

Irving Attorney Provides an Overview of Planning for Non Traditional Families and Same Sex Couples.

While the need for proper estate planning is the same for both traditional and non-traditional families, some of the planning techniques used are different.  Same sex couples are not treated the same as traditional married couples for many purposes and while these differences in treatment present challenges, they are not insurmountable with proper planning. 

Same sex couples, just like opposite sex couples, must have the four key documents.  The four documents include a will, a medical power of attorney, a durable power of attorney and a living will.  These documents are the foundation of any estate plan, whether for traditional or non-traditional families. 

Non-traditional families must pay special attention to several key areas.  Who will make decisions for you if you are unable?  What are the tax implications of transfers now and at death?  When can beneficiary statements solve the problem?  Each of these questions is touched on below and will be covered in depth in a future blog post.

What can same sex or unmarried couples do if they want their partners, instead of their biological relatives, to make decisions on their behalf?    This question frequently arises during medical emergencies.  Preparing before the emergency strikes will arm your partner or the person of your choosing with the tools necessary to ensure your wishes are honored.  A variety of planning techniques are available to meet the needs of your family.

Same sex and unmarried couples are treated differently for tax purposes.  They are not eligible for the marital deduction at the death of their partner.  They have no community property rights.  There is no tax protection for property transfers during life between partners.  There are planning tools available to help overcome these hurdles. 

Finally, the importance of beneficiary designations cannot be stressed enough.  Properly completed beneficiary statements in various financial documents, including life insurance policies and retirement plans can aid in property transfer at death.  Beneficiary designations are critical and should be considered in conjunction with the entire estate plan.

Same sex and unmarried couples need to work with an attorney to develop an estate plan that anticipates challenges and delivers the intended results: to honor their relationship with their partner, ensure their partner can make decisions on their behalf if necessary, and to designate their intended beneficiaries.

Irving Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area.  She provides a variety of legal services for individuals and small business owners.