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Houston Probate & Estate Administration Law Blog

Durable financial power of attorney: Choose the right agent

In the event of incapacitation, you want to know that there is someone who can step in to manage your finances. Furthermore, you want to know that the court won't make this decision on your behalf.

A durable financial power of attorney allows you to name an agent. This is the person who has the legal power to manage your finances if you can't do so, such as the result of a serious injury or illness.

The difficult decision to disinherit a child

There is no predicting how family relationships will turn out as children grow into adults and find their own ways. You may be living proof of this if your adult children are living lives that are very different from what you had hoped and planned for them. Perhaps you even have one child whose life choices are so far removed from yours that you have made an intentional decision to disinherit the child from your estate.

What you plan to do with your estate after your passing is largely your choice. Some states, such as Texas, have laws that protect spouses and minor children from disinheritance, but otherwise, it is your right to distribute your assets as you see fit. However, if it is your decision to disinherit a child, you should know that such actions can easily lead to protracted and expensive probate litigation unless you prepare your estate carefully.

What happens if a beneficiary dies during the probate process?

If you've been appointed as the executor of someone's estate, then you've likely already been advised by the testator, their attorney or a judge just how long it can take to adjudicate a case. The probate process can take anywhere from weeks to years to see it through here in Houston. You have a lot of responsibilities to take care of as a Texas executor. If the testator's will is contested or a beneficiary dies, then this can extend out how long things take.

Beneficiaries generally don't pass away during the few months that it often takes for an executor to administer an estate. If the process drags out longer, then they might.

Will modification: When it may be necessary

You've created a will, you're happy with the terms and conditions, and you hope that you can keep it the same for the rest of your life. However, you shouldn't assume that this will happen, as it may be necessary to make some changes as the years go by.

Here are some situations in which a will modification may be necessary:

  • A change in executor: There may come a point when you need to change the executor of your will. Maybe you had a falling out with the person currently named as executor. Or maybe this person has passed on prematurely. Don't wait to make a change if necessary, as you don't want the court to appoint someone upon your death.
  • A change in beneficiaries: Your will outlines what happens to your assets upon your death. You can name one beneficiary or several. This can change throughout your life, such as if you go through a divorce, get married or have children.
  • Adding a guardian: Maybe you were single with no children when you created your will. However, you recently brought a child into the world, so now you need to consider the impact on your estate plan. A will allows you to name a guardian for any minor children.

Do you believe these estate planning myths?

There is no denying the fact that there is a lot of gray areas associated with estate planning. Even if you have a good working knowledge of estate planning, your legal rights and federal and state laws, you could still make a mistake that costs you and/or your family.

Here are a handful of estate planning myths that many people mistake for facts:

  • Only rich people need an estate plan: Nothing could be further from the truth, as estate planning is for people of all income levels. You create an estate plan for many reasons, such as ensuring that your assets end up in the right hands and protecting yourself in the event of incapacity.
  • Only old people need an estate plan: Even if you're young and healthy today, this could change in the future. It's important to create an estate plan early in life, and then make changes to it as necessary as you age.
  • Your family will take care of everything when you pass: Even if you can trust your family to do the right thing, that doesn't necessarily mean everything will go as planned. Without an estate plan, the legal system decides what happens to your assets and debts upon your death. Also, without an estate plan, you put a lot of pressure on your family when you pass away.

Questions to answer before choosing a trustee

Once you decide to create a trust, you'll be faced with a variety of questions that require your attention. For example, you need to choose a trustee. And when doing so, it's imperative to name the right person.

Answer these questions as you compare trustees on your search for the right one:

  • Can you trust the person? If you can't trust the person completely, you're best off considering another individual for this responsibility. The last thing you want to worry about is a trustee that will make decisions that benefit them, as opposed to the trust and its beneficiaries.
  • Can the person make difficult decisions at difficult times? For example, if you're incapacitated, your trustee may need to step in and make important decisions regarding the way in which your assets are invested. You must have confidence that they'll do so to the best of their ability.
  • Will they stick with their responsibilities over the long run? A trustee has the potential to remain in this position for many years, so it's a must that they're devoted to the responsibility. If you think a person will get bored with their responsibilities or move on for another reason, mark them off your short list.

Can you leave assets to your minor children in your estate plan?

As a parent, you want the best for your children's future. You also know that you would do anything for them and provide them with anything they needed. As a result, when you consider your estate plan and desires for property distribution, you undoubtedly want to leave at least a portion of your remaining assets to your children.

As you know, an accident, illness or injury could occur at any time that results in your passing. As a result, your children could still be minors if you meet an untimely demise. Because minors do not yet have a great deal of financial responsibility, you may wonder whether you could even leave assets to your young children.

When should you review your estate plan?

As challenging as it may be, it's satisfying to create an estate plan that you can trust. Not only does it ease your mind and reduce tension, but it's sure to do the same for your loved ones.

After creating an estate plan, you shouldn't put it away and hope that everything remains the same. Instead, it's important to regularly review your plan. Here are some times when it makes sense to take action:

  • Marriage or divorce: It doesn't matter if you tie the knot or dissolve your marriage, you need to review your estate plan for changes. You're likely to find a few that immediately make sense.
  • Having a child or adoption: If you have a child or adopt a child, there are things to change in your estate plan. For example, this is a good time to name a guardian, as you want to know that any minor children will be cared for in the event of your passing.
  • Major financial change: Maybe you receive a large inheritance, win the lottery or settle a lawsuit. If your financial circumstances change, review your estate plan to determine if you need to make any adjustments.

Questions to ask your adult parents about estate planning

As your parents age, it's critical that you help them with a variety of tasks related to their finances and health. In many cases, this leads you to discuss topics that fit under the estate planning umbrella.

There are a variety of important questions to ask your parents about estate planning, starting with the following:

  • Are you comfortable with the estate plan that you currently have in place?
  • Do you need to make any changes to your estate plan that you have been putting off?
  • Does your estate plan adequately address long term care planning, such as how you will pay for a nursing home should the time come?
  • Have you given any thought to creating a trust?
  • Are you comfortable with the person you've named as the executor and/or trustee?

Important things to consider when choosing a beneficiary

You're faced with a variety of challenging and important decisions when creating an estate plan. Among them is deciding who to name as your beneficiary.

Even if it sounds simple and straightforward, the more you think about it the more you'll realize that you have multiple options to consider.