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Houston Estate Planning and Probate Blog

Monday, September 26, 2016

Costs Associated with Dying Without a Will


Costs Associated with Dying Without a Will

When someone dies without a will, it is known as dying intestate.  In such cases, state law (of the state in which the person resides) governs how the person's estate is administered. For people who leave behind large estates, unless they established certain types of trusts or instituted other tax avoidance protections, there may be a tremendous tax liability for the estate to pay.

For just about everyone, the cost of having a will prepared by a skilled and knowledgeable attorney is negligible when compared to the cost of dying intestate,  since there are a number of serious consequences involved in dying without a proper will in place.

Legal Consequences

The larger your estate, the more catastrophic the consequences of dying intestate will be.
Read more . . .


Monday, September 19, 2016

Why Shouldn't I Use a Form From the Internet for My Will?


In this computer age, when so many tasks are accomplished via the internet -- including banking, shopping, and important business communications -- it may seem logical to turn to the internet when creating a legal document such as a will . Certainly, there are several websites advertising how easy and inexpensive it is to do this. Nonetheless, most of us know that, while the internet can be a wonderful tool, it also contains a tremendous amount of erroneous, misleading, and even dangerous information.

In most cases, as with so many do-it-yourself projects, creating a will most often ends up being a more efficient, less expensive process if you engage the services of a qualified attorney.  Just as most of us are not equipped to do our own plumbing repairs or automotive repairs, most of us do not have the background or experience to create our own legal documents, even with the help of written directions.
Read more . . .


Monday, September 12, 2016

Things to Consider When Picking an Executor


The role of an executor is to effectuate a deceased person’s wishes as declared in a will after he or she has passed on. The executor’s responsibilities include the distribution of assets according to the will, the maintenance of assets until the will is settled, and the paying of estate bills and debts. An old joke says that you should choose an enemy to perform the task because it is such a thankless job, even though the executor may take a fee for doing the job.
Read more . . .


Tuesday, September 6, 2016

What is an Estate Tax?


While the terms "estate tax" and "inheritance tax" are often used interchangeably, they are not synonymous. Let's try to clarify the difference.

The main difference between estate taxes and inheritance taxes is who pays the tax. The clue is in the name.  Estate taxes are paid by the deceased person’s estate before the money is distributed to their heirs.
Read more . . .


Friday, December 11, 2015

Controlling Estate Planning Through Trusts

How can I control my assets after death?

The practice of estate planning is dedicated to preserving an individual’s control over his or her assets after death. A simple will can control which individuals receive what assets, but a more thorough plan has the potential to do much more. Establishing a trust is the most common method used to exercise this kind of control. 

A trust can issue a bequest restricted by a condition; for example, a trust might be established to pay out $10,000.00 to a specific grandchild only once he or she has reached 18 years of age. Multiple payments can be made to the beneficiaries as long as the trust is funded. The trust can stipulate that the grandchild may have to graduate from college to receive the money, or even that he or she must graduate from a specific school with a minimum grade-point average or membership in a particular fraternity or sorority.

A trust can make the condition of payment as specific or as broad as the creator of the trust wishes. It may, for instance, bequeath benefits to a humanitarian organization on condition that the organization continues to provide food and shelter to the homeless. There is no limit to the number of conditions permissible in a trust document. Even when the conditions go against public policy and general norms and mores established by society, as long as the conditions may be met legally, they will usually be upheld by the court.

In order to create a trust, there must be a capital investment to fund it and a trustee must be named. The trustee is responsible for protecting the assets of the trust, investing them to the best of his or her ability, managing real estate and other long-term assets, interpreting the trust document, communicating regularly with the beneficiaries of the trust and performing all of these actions with a high level of integrity. Trust assets may be used to pay for expenses of managing the trust as well as to provide payment for the trustee if so provided for in the trust document.

If a trust document is not well written, it may be the target of a lawsuit seeking to dissolve the trust and disburse the assets held therein. Even if the trust is defended successfully, the costs of this challenge may deplete its coffers and frustrate the very reason for its creation. In order to avoid these possible pitfalls, it is important that a trust document be drafted by an experienced estate planning attorney.


Monday, November 23, 2015

Planning for Your Final Sendoff

Although most people don’t like to think about it, death is inevitable. It’s imperative that you have an estate plan in place that outlines your end of life wishes and how you would like your assets distributed upon your passing. As part of your planning, it’s important that you consider and make arrangements for your funeral or final wishes.  By planning this event before your passing, you can spare your family difficult decisions and ensure that your send off is exactly as you’d like it.

Here are a few things to consider:

Location

Funerals are not limited to funeral homes, churches or temples. If you’re not religious or if you want something different, you might ask that your relatives instead hold a memorial service in your honor at the park or even at the family vacation home.

Burial

Perhaps you hate the idea of being buried at the local cemetery and would prefer to be cremated. There are many options and having your relatives all agree upon one can be challenging. Be sure to make these wishes known as part of your funeral planning.  

Details    

You wouldn’t want someone picking the song for the first dance at your wedding so why would you want someone else deciding all of the details of an event to celebrate your life? As part of your funeral planning, list songs you might want played or poems which should be recited. If your favorite vacation was to Hawaii, you might want to brighten up the event with tropical flowers from Maui.

Obituary

It can be difficult to write about your life but for many writing their own obituary can help them reflect on the important things while giving them a chance to highlight their proudest moments. If you aren’t a writer or find this task daunting, consider writing a few bullet points for your loved ones so the information they share is accurate and provide a list of publications where it should be featured. Sure, your children may know that you belong to the book club but they may have no idea that that same group has a newsletter which should share this information with fellow members.

Virtual Passwords

Traditionally when a person died, his or her children had the task of going through the old phone book and calling contacts to inform them of the news. Today, many of us connect with friends and relatives online. To help your heirs effectively communicate information about your passing, be sure to store your online passwords in a place where your relatives can find them and access the appropriate accounts accordingly.

Paying in Advance

Funerals can be very expensive and a huge burden for many families dealing with the loss of a loved one. Luckily, with the right planning, you can prepay for your funeral and save your family the expense. Generally an attorney or a funeral director can help you to determine how much money will be needed and help you to establish a trust where it will be stored until your passing if you do not pay in advance for your final arrangements.

While planning your funeral may seem to be a depressing thought at first, it is actually empowering—allowing you to determine how you will say farewell to your loved ones and leaving you with the peace of mind that comes from knowing that you’ve taken care of every last detail so your family can celebrate your life without the added stress of planning your funeral or writing your obituary.


Monday, November 16, 2015

Seven Tips for Negotiating Your Divorce Settlement

Regardless of how long you have been married, negotiating a settlement is the most important part of the divorce process. Although it is no easy task, working with your spouse to arrive at mutually agreed terms of your marital dissolution is easier on your wallet and your psyche. Whatever conditions caused the breakdown in the marriage are likely still present throughout the divorce negotiation, exacerbated by emotions such as anger and fear as you each transition into the next stage of your lives.

However, staying focused on what’s best for your future will serve you well as you navigate these tumultuous waters. Taking your divorce case to trial and letting the court decide what will become of your property or children is rarely in your best interest. Although you may not get everything you hoped for during a settlement negotiation, you will save a tremendous amount of money, time and emotional anguish.

Divorce settlement negotiations involve a degree of both skill and art, both of which can be attained by following a few simple tips. Even if your attorney is doing the negotiating on your behalf, it is important that you are clear regarding your priorities, so you can make decisions that are truly in your own best interest for the future life you are establishing post-divorce.

Negotiating a divorce settlement agreement necessarily involves a certain amount of give and take, on both sides, so keep in mind that you most likely won’t get everything you want. But following the tips below can help ensure you get what’s most important to you.

  • Establish clear priorities.
  • Know what you can give up completely, where you can be flexible and those critical items where you are unable to budge.
  • Be realistic about your options and the bigger picture, so you can be reasonable when you must “give” something in order to “take” something.
  • Stay focused on the negotiation itself, and your future; avoid recalling past resentments or re-opening past wounds. Your divorce settlement negotiation is no place for “revenge” which can ultimately delay your case and cost you thousands in unnecessary legal expenses.
  • If your soon-to-be-ex-spouse becomes emotional or subjects you to personal attacks, don’t take it personally. This may be easier said than done, but it is important to stay focused on your priorities and realize that such “noise” does not get you any closer to a settlement agreement.
  • If your spouse presents you with a settlement offer, consider it carefully and discuss it with your attorney. It may not include everything you want, but that may be a fair trade off in order to finalize your divorce and move on with your new life.
  • If you are negotiating your own settlement agreement, consult with an attorney before you make an offer to your spouse or sign any proposed agreement.

By keeping the focus on your priorities, and avoiding the emotionally-charged aspects of your failed marriage, you can ensure you negotiate a divorce settlement agreement that you can live with.


Monday, November 9, 2015

Mediation: Is It Right For You?

Mediation is one form of alternative dispute resolution (ADR) that allows parties to seek a remedy for their conflict without court intervention or a trial. Parties work with a mediator, who is a neutral third party. In addition to formalized training in mediation, usually, mediators also have received some training in negotiation or their professional background provides that practical experience.

Unlike a judge, a mediator does not decide the outcome of a matter or who wins; rather, a mediator facilitates communication between the parties and helps the parties identify issues and possible solutions to their conflict. The goal is for parties to compromise and reach an acceptable agreement.

Mediation can be an appealing option because it is much less adversarial. This might be important when the relationship between the parties has to continue in the future, such as between a divorcing couple with children. The process is also less formal than court proceedings.

Mediation often costs significantly less than litigation, which is another benefit. Another advantage to using mediation is that it generally takes much less time than a traditional lawsuit. Litigation can drag on for years, but mediation can typically be completed in a much shorter time frame. Court systems are embracing mediation and other forms of ADR in an effort to clear their clogged dockets. There are some programs that are voluntary, but in some jurisdictions, pursuing mediation is a mandatory step before a lawsuit can proceed to trial.

Mediation can be used in a variety of cases, and it is sometimes required by a contract between the parties. Mediators can be found through referrals from attorneys, courts or bar associations, and there are companies that specifically provide ADR services. Ideally, a mediator will have some training or background in the area of law related to your dispute.

Mediation is often a successful way to reach a settlement.

Contact our law firm today to help determine if mediation would be a valuable tool to resolve your dispute.


Wednesday, April 15, 2015

Don’t Let Your Social Networking Activities Undermine Your Divorce Negotiations

According to the American Academy of Matrimonial Lawyers, in the past five years 81% of its members have represented clients in cases involving evidence from social networking sites, such as Facebook, MySpace, Twitter, YouTube and LinkedIn.  Posted pictures and comments can make the job all-too-easy for your former spouse’s attorney to attack your credibility and ensure you do not receive the relief that you are requesting from the court.

A picture is worth a thousand words. And that picture you posted of yourself, in various stages of undress, or with a marijuana cigarette in one hand and a drink in the other, speaks volumes to the court and can result in unfavorable rulings regarding child custody or visitation. But the information posted doesn’t even have to be tawdry or illegal to land you in trouble. What about the ex-husband who claims he has no income, but his Facebook profile is chock-full of photos of luxury purchases or exotic vacations? What about the parent who posts profanity-laden status updates, insulting the judge’s competence? Should it find its way into the court, none of this information is going to help your case.

All of these communications can be considered by the court in making its rulings. Nothing you post online is 100% private, regardless of your privacy settings. Opposing attorneys can always subpoena the records, share your dirty secrets with the court, impeach your credibility, and obtain a favorable ruling for their client – your ex or soon to be ex-spouse.

The lasting implications of a negative court ruling can far outweigh the momentary, fleeting satisfaction of venting your frustration at the judge or your ex, or sharing “fun” photos on your Facebook profile. The bottom line is that you have to think before you post. It has often been said that you should not publish anything that you wouldn’t want your Mother to see. A similar standard should be applied for those going through a divorce. What if that comment you are about to make, or the photo you are about to post, were to fall into the hands of your soon to be ex-spouse’s lawyer? This can have far-reaching consequences, affecting your income and support obligations, or visitation and custody of your children.

To avoid the pitfalls of information sharing in the digital age, you must assume that anything and everything you post will be obtained by opposing counsel and find its way into the courtroom. Family law cases involve some of our most private matters and care should be taken to ensure you protect your own privacy. Preserve your attorney-client privilege by refraining from sharing any details of your relationship or conversations with your attorney with other people. Avoid posting compromising photos, or making derogatory remarks on your social networking profiles.

Above all, do not post anything you wouldn’t want your ex, his or her attorney, or the judge to see.  Regardless of how restrictive your privacy settings may be, this information can easily be subpoenaed and become a part of the court record.  If there is any doubt, do not post.  Remember, you cannot “unring that bell!”


Wednesday, April 8, 2015

Pooled Income Trusts and Public Assistance Benefits

A Pooled Income Trust is a special kind of trust that is established by a non-profit organization. A Pooled Income Trust allows individuals of any age (typically over 65) to become financially eligible for public assistance benefits (such as Medicaid home care and Supplemental Security Income), while preserving their monthly income in trust for living expenses and supplemental needs.  All income received by the beneficiary must be deposited into the Pooled Income Trust.

In order to be eligible to deposit your income into a Pooled Income Trust, you must be disabled as defined by law. For purposes of the Trust, "disabled" typically includes age-related infirmities and special needs. The Trust may only be established by a parent, a grandparent, a legal guardian, the individual beneficiary (you), or by a court order. 

Typical individuals who use a Pooled Income Trust are: (1) elderly persons living at home who would like to protect their income while accessing Medicaid home care; (2) recipients of public benefit programs such as Supplemental Security Income (SSI) and Medicaid; (3) persons living in an Assisted Living Community under a Medicaid program who would like to protect their income while receiving Medicaid coverage.

Medicaid recipients who deposit their income into a Pooled Income Trust will not be subject to the rules that normally apply to "excess income," meaning that the Trust income will not be considered as available income to be spent down each month.  The Trust can pay for supplemental needs, medical procedures not provided through government assistance, and some other expenses not provided by government assistance programs.


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