Answers To Common Questions About Estate Planning In Texas
Many people know they need an estate plan but avoid getting started because they are uncertain about what they need or where to begin. It is natural to be filled with questions. The best way to get answers, however, is to speak with an estate planning lawyer like me, John Elliott.
Below, I’ve provided answers to some of the questions I have received most often throughout more than 15 years as an attorney. After you’ve finished reading, I encourage you to ask me your own questions by contacting Elliott Estate Law, PLLC, and scheduling an initial consultation.
Do you need a will in Texas?
Legally speaking, there is no requirement for someone to have a will. However, as a practical matter, there are many reasons why having a will is important. Even if you consider your estate to be very modest in size, you nonetheless have an estate. You worked hard to earn your assets, and you should get to decide what happens to them when you pass.
When someone dies “intestate” (without a will), their property is passed according to Texas law. The default heirs are generally a surviving spouse and surviving children. You may not have wanted property distributed this way, or you may have wanted others included that were left out. The best way to prevent this is to clearly state your intentions in a well-crafted will.
Is a trust better than a will?
Sometimes yes, and sometimes no. They are also not mutually exclusive. Many people have estate plans that include both a will and a trust, while others simply have a will.
Unlike wills, trusts are not legal documents. Instead, they are distinct legal entities that require maintenance and management. Trusts are powerful legal tools that can help you achieve a wide range of estate planning goals (one of which is discussed below), but they are not necessary or desirable for everyone.
When you contact my firm, I can help you determine which estate planning tools would be appropriate for you based on your needs and goals.
Can estate planning help me avoid the probate process?
Yes, it can. Many Texans want to keep their estate out of probate in order to spare their families the work, stress and expense of these legal proceedings. One of the most common tools for avoiding probate is the revocable living trust (RLT).
You can establish an RLT and transfer all or most of your assets into the trust (which means they are no longer part of the estate). While you are alive, you still control the assets and the trust is revocable, meaning it can be changed or ended at any time. When you pass away, the trust becomes irrevocable and assets are distributed to beneficiaries according to the terms of the trust.
If you don’t want to create a trust, you can use other estate planning tools to avoid or greatly simplify probate. These include the use of beneficiary designations (for things like insurance policies), transfer-on-death deeds and joint ownership/tenancy with rights of survivorship. I can discuss each of these options with you during our first meeting.
How can I save my family from having to seek guardianship if I become incapacitated?
When someone loses the ability to make or communicate decisions for themselves, they have become incapacitated. This is a real risk with the prevalence of diseases like Alzheimer’s and dementia. It could also occur due to an accident or illness that leaves you in a coma.
Guardianship is an important and necessary court appointment that allows someone else to make decisions on behalf of an incapacitated person. Because petitioning for guardianship can be a stressful, expensive and difficult process, however, it is best to avoid it when possible.
The best way to do so is to designate durable power of attorney and complete an advance health care directive. Durable power of attorney is someone chosen by you to make decisions on your behalf if you ever become incapacitated. A health care directive is your written wishes for medical care or end-of-life care if you become incapacitated. These are both standard estate planning tools I recommend to clients.
Contact My Firm Today For Answers To Your Estate Planning Questions
Elliott Estate Law, PLLC, serves clients in and around Houston, Texas. To learn more about your legal options from a lawyer who is board certified in estate planning and probate, call me at 713-936-4264 or reach out online.