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Houston Probate & Estate Administration Law Blog

Avoid estate litigation by picking the right will executor

Executors have many responsibilities. Some of them include selling your property, filing lawsuits on your behalf, paying creditors, distributing assets and reviewing medical records. Not everyone is an ideal candidate to be the executor of an estate. The person has to be trustworthy, take their role seriously and also be able to act on your behalf in a legal capacity once you're gone.

You may want to consider hiring an attorney, bank, trust company or accountant to serve as your executor if you don't personally know someone responsible enough to take on this role. You should keep in mind that these type companies or individuals charge fees for their services, which means they're not right for every estate.

Here’s why people make estate planning mistakes

When it comes to your estate plan, you never want to find that you made a mistake. The only good part of pinpointing a mistake is that it puts you in a position to fix it before it causes harm in the future.

People make estate planning mistakes for a variety of reasons, including the following:

  • Fear: For example, if you're scared to create an estate plan because you don't want to face the future, it could cause you to make the mistake of skipping your estate plans entirely.
  • Misinformed: You think you understand the ins and outs of estate planning, which points you toward tackling the process on your own. However, if you don't truly know what you're doing, you could make a mistake.
  • Lack of guidance: This goes along with misinformation. You need professional guidance during the estate planning process, as it'll keep you on track and give you confidence that you're making the right decisions.

Life circumstances may call for you to modify your estate plan

As you age, your life changes in many ways. Sometimes, you're excited about the direction you're heading. Other times, you're disappointed in something that happened and searching for ways to make it right.

Regardless of the life circumstances you're dealing with, it's important to consider the overall effect on your life. And that includes your estate plan.

What are a fiduciary's responsibilities?

There are many types of professionals that are considered to be fiduciaries, including attorneys, real estate agents or brokers, accountants, business advisers, bankers and financial advisers. Then there are others such as trustees and executors that don't necessarily have to be trained professionals like the others described above. They can be asked to assume fiduciary duties for another person. There are lots of responsibilities associated with acting as a fiduciary for someone else.

Fiduciaries have a legal obligation to be both trustworthy and honest in representing someone. Any number of individuals described above can be brought in to serve as fiduciaries either before or after a person's death. The person acting as a fiduciary must act in the best interest of the individual they're representing.

What you could ask when making health care choices for someone

When your loved one asked you to serve as his or her health care proxy, you may have felt trusted and hoped you would never have to fulfill the role. Then recently, you got the news you hoped you would never hear -- your loved one can no longer make decisions for him- or herself due to an incapacitating illness or injury.

People are looking to you to make difficult decisions for another person that could have a significant impact on his or her life. You may need to decide what kind of end-of-life health care measures your loved one receives in the last weeks, days or hours of his or her life.

Consider a living trust for these reasons

When creating or modifying your estate plan, consider every option that's available to you. By taking this approach, you reduce the risk of making a mistake that could complicate matters for your loved ones in the future.

Many people overlook the benefits of a living trust because they assume a will is all they need. While you don't have to create a living trust, there are some reasons to consider it:

  • Privacy protection: A living trust is never made public, which allows you to keep it private from outsiders, even after your death. This is the opposite of a will that becomes public record after it's filed in probate court.
  • No probate for assets held in a living trust: With a will, your estate must go through probate before assets are distributed. But with a living trust, the assets can be passed on to your heirs without the need for this time-consuming and often costly process.
  • Help if you become incapacitated: If you're incapacitated for any reason, your trustee can step in to manage your affairs. But without a living trust, it's possible that the court may make a final decision as to who should takeover.

Were you named a beneficiary in a will?

You may know for a fact that you are named as a beneficiary in someone's will. For example, your parents may have made it clear to you that you are their sole beneficiary.

Just the same, there are times when you may be surprised to find that you're someone's beneficiary, such as after an extended family member passes on.

Long-term care planning should be part of your estate plan

Estate planning has a way of confusing people. Many people focus so much time on their assets and distribution upon their death that they overlook other details of importance.

For example, long-term care planning should be a big part of your estate plan. Without this, you may find yourself struggling to get the care you want and need in the future.

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.