If the decedent had a Will it should name an individual to carry out the duties of administering the estate.  The individual named in the Will to carry out the administration is called an executor.  If the Will does not name an executor, then the court will appoint one.  If the court appoints such a person because the Will does not name an executor or the decedent died without a Will, that person is called an administrator.  Either way, the executor or administrator has to be approved by the court and has legal obligations and duties to the court and those who receive property from the estate.  If the executor or administrator acts improperly, he or she may be held liable for any resulting damages and his or her appointment may be terminated by the court.

In Texas, there are several different methods of administering an estate.  Texas is one of the states that provides for independent administration.  This is administration free of court supervision.  This means that after an independent executor or administrator is approved and an inventory of the estate assets is filed with the court, the executor or administrator can simply take care of the administration of the estate without any further court involvement or supervision.

If there is no need for the appointment of an executor or administrator and the only reason for probating a Will is to clear title to property, a Will can be admitted to probate as a muniment of title.  Under this procedure, there is no executor or administrator appointed.  It is a somewhat simplified method of administering an estate than the traditional formal administration.  This is not for all estates due to certain requirements, therefore you should contact your attorney to see if your situation applies.

If the value of the estate, excluding the homestead, exempt personal property, and non-probate assets, does not exceed $75,000.00, no formal administration is necessary if the heirs file an affidavit with the court showing they are entitled to receive the property of the estate.  In addition to the $75,000.00 ceiling, the small estate affidavit procedure is available only if the assets of the estate, excluding the homestead and exempt personal property, exceed the known liabilities of the estate.  One limitation on the small estate affidavit is its general ineffectiveness to transfer title to real property.  The small estate affidavit is effective to transfer title to a homestead if the homestead is the only real property in the estate.  However, if the estate contains any real property other than just the homestead, the affidavit will not clear tile to any of the real property, including the homestead.

Informal family settlements is another option.  They are permissible where the estate is small and consists only of personal property, such as personal effects and household furnishings, but generally not where the estate includes bank accounts, stocks, and bonds.  If a motor vehicle is involved, a new certificate of title may be applied for by filing an affidavit of heirship with the Texas Department of Public Safety.

A common mistake is that when one spouse dies, the surviving spouse does not have to file anything with the courthouse.  This is not the law in Texas.  Texas offers many different ways to probate or transfer an estate’s assets and therefore you should contact an estate planning and probate attorney for assistance on what route may be best in your particular situation.

The post Probate Options In Texas appeared first on Moak & Moak, P.C. -Attorneys At Law.

Because a transfer on death deed is nontestamentary, probate proceedings are not necessary to transfer the transferor’s interest in the described real property.  This has caused quite a bit of confusion about what is to be done.  The fact that the marital status, divorce, property is as is without warranty of title and subject to prior liens and that it may be revoked (yet no specific form for revocation has been produced by the Texas Supreme Court), causes the use of transfer on death deeds to be risky at best.

During the transferor’s lifetime, a transfer on death deed does not affect any right, title, or interest of the transferor in the property.  It does not vest any legal or equitable title in a desginated beneficiary, or subject the property to the claims of creditors of any designated beneficiary.  Notwithstanding the recordation of a transfer on death deed, the transferor retains the right to transfer or encumber the property.  The transferor also retains their present or future homestead rights and any ad valoreum tax exemptions to which the transferor is entitled.  During the transferor’s lifetime, a transfer of death deed does not effect the rights of creditors of the transferor, secured or unsecured, and does not trigger any “due on sale” clause.  Upon death of the transferor, a secured creditor’s rights are subject to the Texas Estates Code.  Additionally, a transfer on death deed does not affect the eligibility for public assistance of either the transferor or any designated beneficiary.

To be effective, a transfer on death deed must be recorded before the transferor’s death.  Likewise, after the transferor’s death, an affidavit of death must be filed  that states that references the transfer on death deed.

Transfer on death deeds are relatively new to Texas.  Quite a bit of confusion can occur as a result of the transfer on death deed, because it is revocable, must be recorded properly, and requires a subsequent filing after death.  Further, if the real estate is owned by two (2) individuals, the death of one does not transfer the survivor’s interest and it is effected by divorce, For these reasons, and the fact the Texas Supreme Court has not provided guidance since 2019, transfer on death deeds are not a favored estate planning tool.

If you are making an estate plan in the near future, seek an attorney that can help answer any questions you may have and guide you on how to create the best least complicated estate plan.  Having a well-crafted estate plan, drafted by an attorney and not pulled off the internet, will save your loved ones grief and money in the long run.

The post TRANSFER ON DEATH DEEDS appeared first on Moak & Moak, P.C. -Attorneys At Law.

Probate may not be necessary when the decedent’s estate is so small that no action is necessary to distribute the property to the beneficiaries or heirs.  However, probate is required in most other circumstances.

Estate administration involves the following steps:

1.  Collection of the decedent’s assets;

2.   Payment of debts and claims against the estate;

3.  Payment of estate taxes, if any;

4. Determination of heirs, if the decedent died without a Will; and

5.  Distribution of the remainder of the estate to those entitled to it.

In Texas, there are several different methods of administering an estate, some of the more common of which are discussed below.

Dying without a Will:

Many people may assume that if they are married and die without a Will in Texas, their surviving spouse will inherit their entire estate. This is not always the case. How their property is divided depends on whether it is characterized as community property or separate property.  Whether the children of the deceased person are also children of their spouse comes into the distribution as well.  This often results in a lawsuit to determine heirship and appointment of an Administrator.  Dying without a Will is the least desired result.

Standard Probate of Wills:

Whether you have a handwritten or typewritten Will, its validity must be proved in court.  This procedure is known as probate, and it generally must take place within four years after death.

A Will that is not proved in court is denied probate.  In this event, the decedent’s property passes to his or her heirs as if he or she died without a Will.  Again, this further emphasizes how important it is to execute a Will which meets all legal requirements so that property will pass as the decedent wished.  After proving the validity of a Will, the next step in the probate process is the administration of the estate.

Independent Administration:

Texas is one of the states that provides for independent administration – administration free of court supervision.  This means that after an independent executor or administrator is approved and an inventory of estate assets is filed with the court, the executor or administrator can simply take care of the administration of the estate without any further court involvement or supervision.  The independent executor or administrator is free to settle with creditors, set aside the homestead and other exempt property, manage the property of the estate, sell assets for payment of debts or taxes, and distribute the remaining estate to those entitled to it.  Thus, independent administration avoids the costs and delays associated with a court-supervised estate administration in which the executor or administrator must seek court approval before performing any of these acts.

Muniment of Title:

If there is no need for the appointment of an executor or administrator and the only reason for probating a Will is to clear title to property, a Will can be admitted to probate as a muniment of title.  Under this procedure, there is no executor or administrator appointed.  It is a somewhat more simplified method of probating a will than the traditional formal administration.  It is generally used only when there are no debts of the estate to be paid and no other actions that require the appointment of an executor or administrator.

Small Estate Affidavit:

If the decedent died intestate, without a Will, then his estate may be resolved with a small estate affidavit.  If the value of the estate, excluding the homestead, exempt personal property, and nonprobate assets, does not exceed $50,000.00, no formal administration is necessary if the heirs file an affidavit with the court showing that they are entitled to receive the property of the estate.

The small estate affidavit is not necessarily limited to small estates, and may be a useful alternative to a formal administration in certain estates where, for example, the residence and nonprobate assets comprise the majority of the estate and the remaining assets are valued at less than $50,000.00.  Check with your estate planning or probate attorney to see if this is appropriate in your circumstances.

Informal Family Settlements:

Informal family settlements are permissible where the estate is small and consists only of personal property, such as personal effects and household furnishings, but generally not where the estate includes real estate, bank accounts, stocks, and bonds.  If a motor vehicle is involved, a new certificate of title may be applied for by filing an affidavit of heirship with the Texas Department of Public Safety.

As always, check with your attorney to decide which method of estate administration is right in your particular circumstance.  It could save you time and money.

The post Probate in Texas appeared first on Moak & Moak, P.C. -Attorneys At Law.

Yes, it is easier said than done, but consider a quick fact if you doubt the importance of this undertaking: According to some sources that study such things, state treasurers now hold over $32 billion (not million) dollars in unclaimed bank accounts and other such assets.

Then there is the prevalent problem of some large insurance companies failing to pay out unclaimed life insurance policies to beneficiaries, claiming that under the insurance contracts they are obligated to do so only when the beneficiaries come forward. When the beneficiaries are not even aware of the existence of the policies, obviously they do not come forward, and years of premiums may have been paid for nothing.

The take-away lesson is that it is just as important to keep estate planning documents well organized and in a safe place, known to and accessible by your heirs, as it is to properly execute the documents in the first place. Any virtue can become a vice if taken to extremes, so this does not mean holding on to every scrap of paper that could conceivably be of interest to those you leave behind. Nonetheless, to possibly save your heirs a significant amount of money, time, and stress, at least the essential documents should be kept together, such as with your attorney, in a safe-deposit box, and/or at home in a fireproof safe that someone can access when the time comes. Instructions on how to dispose of your estate will not mean much if you have not left instructions on how to find the controlling documents.

Essential Documents to Organize

So what are these essential documents that you should have well organized and accessible? Individual circumstances vary, but the first document for most people is an original will. Dying without a will means leaving the determination up to the state as to how your assets will be distributed, and if there is some writing, but not an original document, probate proceedings could become needlessly contentious and drawn out.

In addition to a will (and any trust documents), what follows is a nonexhaustive, but reasonably comprehensive, list of other important documents, the existence and location of which should be known to your heirs:

• Marriage license—A surviving spouse is likely to need it to prove that he or she was married to the deceased before being able to claim anything based on the marriage;
• Divorce papers;
• Durable health-care power of attorney (for health-care decisions if you are incapacitated), a living will, any do-not-resuscitate order, and an authorization to release health-care information;
• Durable financial power of attorney (for financial decisions if you are incapacitated);
• Documentation of ownership of property, including housing, land, cemetery plots, vehicles, stocks, bonds, etc.;
• Proof of loans made and debts owed;
• List of bank and brokerage accounts, with account numbers, and any safe-deposit boxes with the location of corresponding keys;
• Tax returns for the most recent three years;
• Life insurance policies and 401(k), pension, annuity, and IRA documents; and
• List of user names and passwords for Internet accounts.

With a little bit of foresight and planning, you can greatly reduce the administrative burden on your family and heirs after you pass, not to mention saving them time from having to discover and understand your affairs.

The post ORGANIZE YOUR ESTATE PLANNING DOCUMENTS appeared first on Moak & Moak, P.C. -Attorneys At Law.

Every year I learn a great deal that helps with the details of my practice.  However, sometimes the small lessons are the most beneficial.  For example, one of the things attorneys take for granted is that our clients understand the probate process and what is needed for probate.  I was reminded of this fact when, while probating an estate, a very inquisitive client asked about the probate process and so we spent some time reviewing the process so that she would better understand what was being done.  Therefore, in this week’s column, I thought I would review some of the  documents which are common in the probate of an estate.

Organization is critical for managing any estate.  Even for a modest and simple estate, there can be a considerable number of transactions and much correspondence.  For any estate, there is always the risk that a beneficiary or other person may question the actions of the executor.  Thus, the executor should take steps to organize correspondence and other paperwork, keep records of all financial transactions, calendar key deadlines and review checklists to monitor the progress of the estate settlement.

Assembling the documents.  One of the first steps any executor should take is to obtain and review, with legal counsel if necessary, all the pertinent legal documents that may affect the estate.

Living Will, health care proxy.  These may provide important information as to burial requests, funeral services and so on.

Powers of Attorney.  Powers lapse on death.  However, if a third party in good faith and without notice of death completed a transaction under the authority of the power of attorney, it may still be valid.  If any significant transactions were completed near the time of the decedent’s death, you may want to investigate them.

Will.  This document gives the executor instructions on how to distribute the estate.  The executor must follow, as far as legally possible, the wishes of the decedent expressed in the Will.

Revocable living trust.  If a revocable living trust exists, then the trust, in combination with the Will, should govern most transactions.  Be alert for any issues that may arise because of the use of two documents.  Generally, they are  not drafted in a style that is easy to read, much less understand.

Letter of instruction.  Any personal notes to provide guidance to you as to how the decedent would want you, as executor, and any trustees to handle matters can be quite helpful, even if not legally binding.

Inventory.   Not all estates are  required to file an inventory with the Court, however, preparing one is essential in making sure all the assets of the decedent have been accounted addressed.  The items necessary for preparation of the Inventory are as follows:

1. Copies of deeds to any real estate owned by the decedent as of the date of their death; copies of all mineral leases or royalty agreements; records of payments received during the preceding year for mineral leases or royalty agreements or 1099’s received for the preceding year;
2.   Copies of bonds, including Series E bonds, and stock certificates owned by the decedent and whether they had pay on death, beneficiary or survivorship designations;

3. Statements, checks, and deposits for the month of decedent’s death for each bank, savings and loan, or credit union checking or savings account, and copies of all certificates of deposit owned or held by them, and whether those accounts had pay on death, beneficiary or survivorship designations;
4. Statements for the month of the decedent’s death for any investment accounts, IRA’s or retirement accounts owned by them, and the pay on death, beneficiary or survivorship designations for those  accounts;
5. Copies of all notes, accounts, and judgments payable to the decedent;
6. Copies of the titles to any automobiles, boats, or other motor vehicles;
7. Copies of the declaration page and beneficiary designation on all life insurance policies;
8. Description or record of any other assets held by the decedent.

As I stated, there are certain criteria that, if the estate meets, then an inventory does not have to be filed and approved by the court.  However, bringing all of the above to your attorney will help verify that all assets have been accounted for and what steps need to be taken to transfer the assets.  I find it is a very good check and balance system.

If you are handling the estate of a loved one, then gather as much of the above information as you can and take it to an attorney who practices in the area of estate planning and probate.  They will be able to answer your questions and guide you  through the probate process.

The post Documents Commonly Reviewed as part of Probate appeared first on Moak & Moak, P.C. -Attorneys At Law.

First let me define Probate.   Probate is the court procedure by which a Will is proved to be valid or invalid.  In current usage probate has been expanded to generally refer to the legal process by which the estate of a decedent is administered.  I should point out that a Will is not necessary for a person’s estate to go through the probate process.  It is the circumstances and facts related to a person’s estate that dictate whether the probate process is necessary.  Probate may not be necessary when the decedent’s estate is so small that no action is necessary to distribute the property to the beneficiaries or heirs.  However, probate is required in most other circumstances.

Estate administration involves the following steps:

1. Collection of the decedent’s assets;
2. Payment of debts and claims against the estate;
3. Payment of estate taxes, if any;
4. Determination of heirs, if the decedent died without a Will; and
5. Distribution of the remainder of the estate to those entitled to it.

In Texas, there are several different methods of administering an estate, some of the more common of which are discussed below.

Standard Probate of Wills:

Whether you have a handwritten or typewritten Will, its validity must be proved in court.  This procedure is known as probate, and it generally must take place within four years after death.

A Will that is not proved in court is denied probate.  In this event, the decedent’s property passes to his or her heirs as if he or she died without a Will.  Again, this further emphasizes how important it is to execute a Will which meets all legal requirements so that property Will pass as the decedent wishes.  After proving the validity of a Will, the next step in the probate process is the administration of the estate.

Independent Administration:

Texas is one of the states that provides for independent administration – administration free of court supervision.  This means that after an independent executor or administrator is approved and an inventory of estate assets is filed with the court, the executor or administrator can simply take care of the administration of the estate without any further court involvement or supervision.  The independent executor or administrator is free to settle with creditors, set aside the homestead and other exempt property, manage the property of the estate, sell assets for payment of debts or taxes, and distribute the remaining estate to those entitled to it.  Thus, independent administration avoids the costs and delays associated with a court-supervised estate administration in which the executor or administrator must seek court approval before performing any of these acts.

Muniment of Title:

If there is no need for the appointment of an executor or administrator and the only reason for probating a Will is to clear title to property, a Will can be admitted to probate as a muniment of title.  Under this procedure, there is no executor or administrator appointed.  It is a somewhat more simplified method of probating a will than the traditional formal administration.  It is generally used only when there are no debts of the estate to be paid and no other actions that require the appointment of an executor or administrator.

Small Estate Affidavit:

If the decedent died intestate, without a Will, then his estate may be resolved with a small estate affidavit.  If the value of the estate, excluding the homestead, exempt personal property, and nonprobate assets, does not exceed the statutory maximum, no formal administration is necessary if the heirs file an affidavit with the court showing that they are entitled to receive the property of the estate.

The small estate affidavit is not necessarily limited to small estates, and may be a useful alternative to a formal administration in certain estates where, for example, the residence and nonprobate assets comprise the majority of the estate and the remaining assets are valued at less than statutory maximum.  Check with your estate planning or probate attorney to see if this is appropriate in your circumstances.

Informal Family Settlements:

Informal family settlements are permissible where the estate is small and consists only of personal property, such as personal effects and household furnishings, but generally not where the estate includes real estate, bank accounts, stocks, and bonds.  If a motor vehicle is involved, a new certificate of title may be applied for by filing an affidavit of heirship with the Texas Department of Public Safety.

Always, check with your attorney to decide which method of estate administration is right in your particular circumstance.  It could save you time and money.

The post IS PROBATING A WILL REQUIRED ? appeared first on Moak & Moak, P.C. -Attorneys At Law.

It is important to understand that there could be potential downsides to this decision and it’s crucial to consider your specific situation carefully to avoid these common beneficiary issues:

Outdated Beneficiary Choices

The most common disadvantage is failing to review beneficiary choices regularly to assess whether they still meet your requirements or adjust to any changes that have occurred in your life. For example, perhaps you designated your spouse as the primary beneficiary of your retirement accounts and other non-probate assets. However, if you go through a divorce and forget to change these designations, your ex-spouse could still end up with a significant portion of these assets.

Another example may be where new relationships develop that did not exist when you initially made beneficiary designations. For example, you have had more children or remarried. Should you fail to update your estate plan, you may inadvertently omit these loved ones from receiving a share of these assets when you really would have wanted them to receive something.

Failure to Name a Contingent Beneficiary

A related issue is failing to name secondary or contingent beneficiaries. What happens if you do not have a “backup” beneficiary? One of the main disadvantages is that an asset that could typically pass directly to persons outside of probate may now become an asset that has to be addressed through the probate process. This can create a long delay before those assets get to your loved ones.

Minor Beneficiaries

Disadvantages can also arise if you name a minor as a beneficiary and that person is still a minor when you die. If this happens, an insurance company or retirement administrator may not have a way to handle the situation. It would be unable to distribute the funds until it receives directions from a court, or the minor reaches the age of majority (age 18 in most states).

If you find the need to make adjustments to your beneficiaries, don’t hesitate to contact your certified financial planner or an attorney familiar with estate planning. They should be able to assist you in finding the most suitable solutions for your situation.

The post Keep Tabs on Nonprobate Assets appeared first on Moak & Moak, P.C. -Attorneys At Law.

The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

Life is unpredictable and certain events can have a significant impact on your estate plan. It’s a misconception that once you’ve created your estate plan, you can just forget about it. It’s important to consider how common life changes can affect your existing estate plan.

Birth of a Child or Grandchild

Many parents create their estate plan after their first child is born. But if their plan only includes their first child, the second child might not get their fair share without going to court. That’s why it’s important for parents to update their estate plan after each subsequent child is born.

Similarly, if a grandchild is not included in the grandparents’ estate plan, they may not be able to receive any of the benefits or opportunities that the grandparents wanted them to have. This could happen because of the family’s structure or how the estate plan was written.

Death of a Family Member

When creating a will or trust, different people play different roles: the person making the document (Testator for a will or Settlor for a trust), the people who will receive something from it (beneficiaries), and the people responsible for making sure the instructions are followed (executor in a will, trustee in a trust).

If any of these people pass away, it can impact the estate plan. For example, if a beneficiary dies, their share may go to someone else or their own descendants. It’s important to review your estate plan to ensure your wishes are still carried out.

It is also important to have backup people in place in case the person you named as the personal representative, executor, or successor trustee is unable to carry out their duties (even if it’s due to passing away before you). If you didn’t name any backups, then your loved ones may have to choose someone to take over, or a judge may have to decide who should be appointed. This could be especially difficult for families who tend to have conflicts.

Purchasing a New Home

If you have a trust-based estate plan, it’s important to make sure that all of your property and accounts are owned by the trust or named as a beneficiary. When you buy a new home, you need to remember to transfer it into the trust to avoid probate.

When you buy real estate, the title company may assume that you are buying it as an individual or as a married couple, so you need to tell them that you want to buy it in the trust’s name. If you forget to do this, you will need to contact your estate planning attorney to transfer the property into the trust after a successful transaction.

If you don’t put your property into your trust, then after you pass away, it will either go to the person who co-owns it with you (if you co-own it in a certain way), or it will have to go through a court process called probate if you owned it individually or as a tenant-in-common. It’s another Risk of Neglecting Your Estate Plan.

Marriage or Divorce

Getting married is an exciting time, but it can also be complicated, especially when it comes to money and property. You and your spouse may own separate property, as well as property that you accumulate together during your marriage. To avoid confusion and ensure that your wishes are carried out, it’s important to have an estate plan that outlines what property is separate and what is joint, what you want to leave to your spouse, and who should make decisions for you if you are unable to do so. If you don’t update your estate plan after getting married, a court may have to get involved to determine how your property should be distributed and who should make decisions for you.

If you get divorced, though, your wishes may change. To avoid any confusion, it’s important to update your estate planning documents after your divorce is finalized. This will ensure that your former spouse is not involved in your estate plan, even if they were previously named as a decision maker or beneficiary. It’s best to work with an estate planning attorney to update your documents and choose new decision makers and beneficiaries.

Don’t Risk of Neglecting Your Estate Plan

An estate planning attorney can review any estate planning documents you have, whether from years ago or a prior marriage, including Wills, trusts, powers of attorney and beneficiary designations, and then help you create new documents for your current situation.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

The post Neglecting Your Estate Plan appeared first on Moak & Moak, P.C. -Attorneys At Law.

The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

For most people, thinking about not being able to make financial decisions is bad enough.  But thinking about not being able to manage health care is even worse.  After all, money is just that: money.  But your health and health care is different.

So this week I thought I write about, what happens if you are no longer able to manage your health care?  What if you are incapacitated such as with dementia and can’t make health care decisions for yourself?  Who will make those decisions for you?

Two Options

You have two options: Plan ahead, or do nothing.  I do not advise doing nothing.

For planning ahead, you can choose who you want to make health care decisions for you if you’re not able to make those decisions yourself.  In Texas, you do this by creating an power of attorney for health care, which is sometimes called a health care power of attorney or a medical power of attorney.

Power of Attorney

In your power of attorney for health care, you name someone (your health care agent) to make health care decisions for you if you can’t.  These decisions include doing things like talking to doctors, scheduling health care appointments, consenting to medical treatment, picking up prescriptions and so on.

Who decides whether you’re incapacitated?  Again, you choose in advance who decides whether you are incapacitated.  You may have a doctor determine that you’re incapacitated. Many people choose to have a doctor make this decision, but you need not have a doctor make this decision.  You can also name a spouse, children, or someone else you trust.

Think of Your Health Care Needs in Advance or:

What happens if you don’t plan ahead?  If you don’t have an power of attorney for health care and you become incapacitated, someone such as a family member or loved one will have to file a case with the court to ask for them to be appointed as your guardian.  While we work with people to establish guardianships, I don’t advise this as a viable alternative to estate planning and creating an power of attorney for health care. This is because there are several problems with guardianship cases.

First, guardianship cases can be slow.  While it’s possible to get an emergency order if needed, guardianship cases often can take several months.

Second, guardianship cases are expensive compared to planning ahead.  Imagine a scenario where a person needs to be cared for.  Everyone agrees:  No one is fighting over whether the person needs a guardian, or who should be appointed as guardian.  For this “simple” case, attorney’s fees may range from $7,500 to $10,000.

The third problem with guardianship is that it’s public.  Everything that happens in court is public.  Plus, anyone who is an “interested party” to the person subject to the guardianship is entitled to notice of the case and has the opportunity to make their wishes and desires known.  Sometimes families are estranged from each other.  But the brother who you haven’t talked to in 10 years, and the parent that you haven’t seen in 5 years, are all entitled to notice of the case and have the opportunity to appear in court and make their wishes known.

Plan Ahead

For these reasons, I don’t advise that you do nothing.  Instead, it’s important that you plan in advance.

Having a well written power of attorney that includes health care is an important part of a comprehensive estate plan.  I suggest that it may even be more important than setting up a Last Will and Testament, because an power of attorney for health care will help you and your agent manage your health care while you are still alive.  It’s worthwhile to give your health care  some thought in advance.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

The post Think of Your Health Care Needs in Advance appeared first on Moak & Moak, P.C. -Attorneys At Law.

Many times the term “probate” frequently carries a negative connotation. In fact, financial planners advise many individuals, particularly those with valuable accounts and property, to try to avoid probate whenever possible.

However, the purpose of the probate system is ultimately to protect the deceased’s accounts and property, as well as their family, and in some instances it may even be advantageous. Consider briefly the advantages and disadvantages of probate.

The Pros

In certain instances, particularly when there is no Will, the system ensures that all accounts and property are distributed in accordance with state law. Here are some potential benefits of involving the probate court in the administration of a deceased person’s estate in Texas:

1. It provides a reliable procedure for the distribution of the deceased person’s property in the absence of a Will.
2. If a Will exists, it validates and enforces the wishes of the deceased.

3. It ensures that taxes and valid debts are paid so that the beneficiaries are not left with an uncertain feeling regarding the decedent’s affairs.

4. If the deceased had debts or unpaid bills, probate provides a method for limiting the amount of time creditors have to file claims, which may result in debt discharge, reduction, or other advantageous settlement.

5. Probate can be advantageous for the distribution of smaller estates where estate planning would have been too expensive.

6. It allows for third-party oversight by a respected authority figure (judge), potentially reducing family conflicts and aiding in ensuring everyone’s best behavior.

The Cons

Although probate is intended to facilitate the transfer of accounts and property after a person’s death in a fair manner, you might consider bypassing the process for the following reasons:

1. Generally speaking, probate is a matter of public record, meaning that certain documents, including personal family and financial information, become accessible to the public.  However, in Texas, if there is no outstanding debt, then an inventory is not required to be filed, thus protecting the family’s privacy. 

2. There may be substantial costs, such as court fees, attorney’s fees, and executor fees, which are deducted from the value of the assets you intended to leave to your loved ones.  These costs must be balanced with the cost to set up a trust and prepare the legal documents to transfer all your assets into the trust, then maintain the trust. 

3. Probate can be time-consuming, delaying the inheritance of your beneficiaries for months or even years. 

The Bottom Line

Whether you choose a Will or Trust to transfer your assets, you must examine both mechanisms to decide which  makes sense for you.  

A skilled estate planning attorney can devise a plan to help you transfer your assets and make life easier for your heirs. As I have said before, probate is just a word for transferring your assets.  Do not be scared of it and seek an attorney with experience in estate planning to make the process easier.

The post Pros and Cons of Probate appeared first on Moak & Moak, P.C. -Attorneys At Law.