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Houston Probate & Estate Administration Law Blog

Can I provide directions for digital assets in estate plans?

These days, one's digital presence and digital assets are just as, if not more important, than one's real property and presence. People pay their bills, manage and access their accounts, and even buy cryptocurrency, making their digital assets and information an integral part of their portfolio. When one dies though, digital assets are not treated the same way real property is treated and it is important to keep that in mind as one is drafting their estate plan. Locking heirs and beneficiaries out of inheriting digital assets and executors and fiduciaries without access to them can be detrimental to one's estate plan.

The ownership of a digital assets or accounts may not automatically be transferred through trusts, wills and powers of attorneys-this depends on the terms of service of agreement and the type of asset in question. Generally, powers of attorney should give the agent the specific authority to take over digital accounts in case an individual is incapacitated. In Texas, recommendations for durable powers of attorney to include digital assets were included in 2017.

Review heirs and beneficiaries after a divorce

The new tax laws set to come into effect on January 1, 2019, caused a lot of people, including Houston residents, to finalize their divorces before the new year set in. under the new law, the payor can no longer deduct alimony and the receiver is no longer obligated to pay tax on it. Anyone whose divorce has been finalized recently should consider this the right time to update their estate plan. This also applies to anyone who has not reviewed their estate plan after separating from a spouse.

One of the first steps one should take after finalizing a divorce is update one's healthcare proxy. This document allows someone else to make important healthcare decisions for you and usually people appoint their spouses as their proxy. However, one rarely wants their ex-spouse making such crucial decisions, which is why updating it is essential. Similarly, updating one's power of attorney to a trusted individual is important as well.

What assets should you include in your estate plan?

Like many Texas residents, you may have decided to make some New Year's resolutions. With the new year under way, you may already feel like the changes you wanted to make in your life may not happen as quickly as you had hoped. Certainly, it can take time to achieve goals, but as long as you do not give up, you will likely have the chance of at least keeping some of your resolutions in check.

If one of your goals for the year is to create an estate plan, you have already made a major stride in making that idea become a reality. Choosing to create a plan is not always easy, and having the idea on your mind is important. One next step to reaching this goal includes determining the assets you want your plan to address.

Estate planning decisions should be informed

As mentioned many times before on this blog, Houston residents, along with their counterparts across the country, often delay talking about end-of-life decisions and how they would like their assets to be distributed amongst their heirs. In the absence of a healthcare proxy or a financial one, family members are left to make important, life altering decisions in an emotionally charged environment and this can lead to family disputes in the long-run. This could be avoided if individuals take the time and make the effort to make these decisions and create comprehensive estate plans.

However, creating an estate plan is not the end of the matter. Routinely updating those documents and ensuring one has utilized all the newest possibilities for estate plans available at the time are also important steps that must be taken to ensure one has protected their assets for their most current and relevant beneficiaries. Neglecting to take this step might mean an important part of the family is left out, such as newborns.

End of year estate planning modifications crucial

The end of the year is a hectic time for most Texas residents, as they complete their holiday shopping and get ready to ring in the New Year with their family members. While many think to cook lavish meals and get extravagant gifts for family members to express their love, very few realize that they might have overlooked a very basic way to provide for their family member's futures -- creating a comprehensive estate plan.

One way to do so is to create a SLAT -- a spousal lifetime access trust. For married couples, it is a common way to protect assets and a useful tax planning technique. In addition to this, SLAT's can also be structured in such a manner that they become non-grantor trusts. This can allow individuals to gather a variety of income tax benefits under the new tax laws. Another way is to create a domestic asset protection trust -- a DAPT -- in various states where it is allowed. It allows individuals to remove assets from their estates and from the reach of creditors even while the person him or herself can continue to benefit from them.

Living wills are an important estate planning document

While many are advised to create a will to ensure their assets are distributed according to their wishes after they pass away, Houston residents may not be aware that there are different categories of wills. Living wills are one of those types and it might be an option for someone to avail if they want to leave directions for loved ones and medical care providers in case they are facing a life-threatening situation.

Living wills or advance directives are legal documents that outline the type of medical care that someone either wants or does not want in certain instances that would prevent them from voicing their own opinion. For example, an unconscious patient facing a terminal illness may not be able to voice whether or not he or she would like life-sustaining treatment and their family members may also not know what that individual wants. A living will would provide guidance in that situation. It only comes into play when someone is unable to convey their own wishes -- doctors do not consult the document if a life-threatening situation does not exist.

The mystery of the missing last will and testament

We hear it all too often... "The original signed will is missing. I know it was in that box. I saw it. It had been there for years!" Usually by the time a last will and testament has been determined to be missing, every possible heir to the estate is in an uproar, and the decedent's house has been turned upside down from frantic searching. Panic ensues and everyone wants to know how this is going to affect their inheritance.

The first step a party should take in locating a missing will is to determine if it was drafted by an attorney. If so, and that attorney can still be located, contact he or she immediately to see if they possible kept the original copy in their office. Many times an attorney will keep the original signed document and send a photocopy home with the client. If the document was not drafted by an attorney, be sure to contact any and all family members and friends who could have any knowledge of whether the will was revoked, or simply relocated.

Divorce looming? Now is the time to review your estate plan

Making your estate plan was a wise and thoughtful move. Barely half of those in Texas and across the country take the time and effort to make a plan that will protect and provide for their families after they are gone, as well as creating some security for themselves as they age. Unfortunately, your estate plan may be the farthest thing from your mind if you and your spouse are preparing to divorce.

You should know that divorce is one very important reason to revisit and revise your estate plan. While you may plan to see your attorney to amend your estate planning documents as soon as your divorce is finalized, there are certain measures that may need your immediate attention.

What is a fiduciary's primary role?

Many estate arrangements involve the relationship of a trustee and a beneficiary and the creation of a fiduciary duty. The individual who has been named as the estate trustee is likely to be the fiduciary and the beneficiary is the principal. Before going down this road, it is important for all Houston residents to understand the legal obligation they are creating and the responsibilities created by it.

A fiduciary refers to the legal relationship between two parties that necessitates one party to act solely for the benefit of the other party. Therefore, the fiduciary (trustee) owes this duty to the beneficiary (principal). Strict care must be taken to ensure that there is no conflict of interest between the two parties, and the fiduciary is often acting without receiving any profit, unless the contrary is stated at the onset of the agreement.

No need to contest a validly created will with our help

The death of a loved one sends a Texas resident on an emotional and stressful journey. Family members have to go through the decedent's belongings and plan their funeral all while coming to terms with their own grief. If the decedent had not outlined their own wishes for how their funeral should take place and their assets distributed, it can trigger another stressful time in the lives of the heirs.

Family strife among beneficiaries is common if the decedent did not outline how their estate should be distributed. In what should be a time of coming together and helping one another get through this difficult period, siblings may fight over how the funeral should be held and who gets to live in the family home. Leaving a family unprepared to deal with one's estate is a step not many want to knowingly take, but dying without an estate plan may result in just that.