Facing mortality is the bane of humanities existence. The acknowledgement of the truth that we will all transition from this form is notably met with stern and abiding resistance. This resistance produces strong emotions that ultimately breeds procrastination and estate planning matters are put off for another day.
All that notwithstanding, it is a sound practice to have all your affairs in order. Part of having your affairs in order is having a valid will or trust in a safe place and one at your attorney’s office. No one wants to think about drafting these documents, because it is painful to think about not being here for loved ones. But, making the extra effort and taking time to execute a valid will or draft a trust is the best thing you can do for your loved ones.
Getting a will drafted doesn’t tickle anyone’s fancy. Most people would rather sit on a bed of hot coals than face the reality of their own demise. Have it your way, but know this, there will be a mess for those left behind if you delay. Leaving your loved ones to wrap up the business of your estate without a will is misery, a headache the likes they should not have to endure, and is easily prevented.
You may just need to update your will because circumstances have changed in your life, like a divorce or untimely passing of a beneficiary. If you have been thinking about this and procrastinating, I completely understand. The truth of this is the nagging thought will not go away until you confront the need to get it done and initiate the process.
A living trust (sometimes called an “inter vivos” or “revocable” trust) is a legal document through which your assets are placed into a trust for your benefit during your lifetime and then transferred to designated beneficiaries at your death by your chosen representative, called a “successor trustee.” On the other hand, a will is a document with a plan of distribution of your assets upon your passing. Your executor, as named in the will, oversees this process, and notably, nothing in your will takes effect until after you die.
One of the first benefits of a living trust is that it avoids probate. With a valid will, your estate will go through probate, the court proceedings through which your assets are distributed according to your wishes by the executor. A living trust, on the other hand, does not go through probate, which often means a faster distribution of assets to your heirs—from months or years with a will down to weeks with a living trust. Your successor trustee will pay your debts and distribute your assets according to your instructions. Notably, both documents allow you to choose a guardian for your children in the event you transition while they are minors.
Whether a living trust saves you money, has caveats depending on your specific financial situation. Drafting a living trust will likely cost more than drafting a will as it is a more complex legal document. Also, in a trust, you must transfer your assets such as bank accounts, stocks, and bond accounts and certificates to the trust through separate paperwork; simply writing up a living trust does not actually “fund the trust.” Paying for an attorney to help you get this done properly is an additional cost not associated with drafting a will.
Other procedures involved in an estate plan with a living trust could also include changing the beneficiary on your life insurance policy to the trust, appropriately dealing with your IRA or 401(k) plan, and also creating a “pour-over will” that will provide for the distribution of any assets acquired after the creation of the living trust but before your death or any assets inadvertently excluded. Keep in mind that a pour-over will, like any will, will go through probate.
While a will costs less to draft, a living trust can save your estate money at the time of your death as the distribution of assets in the trust will not go through probate; court costs for probating your will are taken from estate, although note that for a simple, uncontested will, costs are often nominal. Regarding contests, living trusts will likely hold up better in the event someone comes forward contesting the distribution of your assets; accordingly, court costs to cover any will contests may also need to be considered.
As far as savings of income and estate taxes, there is often no substantial difference between living trusts and wills, although living trusts may provide savings for married couples in the form of joint living trusts. For people with simple estate plans and for young married couples with no children or significant assets, a living trust is probably not financially beneficial.
There is no consolation for the pain and immense grief of losing someone you love. It is a very sorrowful time, and no one wants to deal with the legal aspect of this unfortunate situation. When a loved one transitions there are two categories they fall into, either they passed with a will or they passed without a will. Either way, you will need to hire an attorney to either probate the will or file an application to determine heirship.
If your loved one executed a will prior to passing, the legal road ahead is a bit smoother. All the attorney needs to do is file an Application to Probate the Will, which is usually filed by the attorney on behalf of the person named in the will as the Executor or Executrix. The attorney will need to follow a few steps laid out by the Texas Probate Code and the Executor or Executrix will be on their way to being able to administer the estate in accordance with the wishes of the will. Please be mindful of the fact that you only have four (4) years to file the Application following the passing of your loved one.
If your loved one passed without a will, the legal road ahead is more tedious. It will take more time because the Texas Probate Code requires that we determine all the potential heirs are and provide them with notice of the Application to Determine Heirship. The Application is filed by an attorney on behalf of a person who is probably one of the next of kin to the deceased loved one. In this legal scenario, the state has a vested interest in making sure everything goes smoothly, so an Attorney ad Litem is appointed, which is the reason the filing fee for an Application to Determine Heirship is higher than most filing fees.
We will also need two uninterested witnesses to attest to the family lineage of the passed away loved one, which aids the court in determining the rightful heirs. These witnesses will be required in court at the hearing. This particular requirement can be a stumbling block and cause the process to extend past expected time estimates. These hurdles can be overcome with a bit of patience and tenacity.
There are occasions that require filing an application seeking a court supervised administration to gain a legal guardianship over an incapacitated person, a minor is also incapacitated, or over that person’s belongings. The court can appoint a guardianship over a person, which is called Guardianship over the Person, or a guardianship over a person’s belongings and property, called a Guardianship over the Estate.
The need for a guardianship can arise in several instances. For example, if a person becomes ill or has an accident and can no longer care for themselves or handle their personal business affairs. The applicant will need to contact an attorney and file an Application for Guardianship along with additional documents proving the person they seek to care for has become a ward of the state and their ability to adequately care for themselves is greatly diminished.
The Texas Probate Court does not allow Pro Se Applicants to represent themselves in order to obtain a guardianship, you must hire an attorney to file the application because you are representing another person’s interest and you only have the right to represent your own interest in a court of law. The court is strict concerning the guardian requirements. If you have blemishes on your record or have engaged in conduct unfitting, it is likely the court will not approve your application. There is a great and heavy responsibility on the shoulders of guardians and Texas has a vested interest in the well-being of the ward and the process can take between 30-60 days depending on the level of complications.
A guardian in Texas must meet all legal responsibilities established by the court. Guardians are held to high standards of behavior when it comes to the duty of care they have for their wards. A guardian’s responsibilities can include:
In Texas, you can obtain temporary guardianship by completing the Authorization Agreement for Nonparent Relative or Voluntary Caregiver. If you find that you need a temporary guardianship quickly Forms are available at the Texas Department of Family and Protective Services website. A hearing is held within 10 days of application at which time a temporary guardian is either appointed or the application is dismissed of the court finds there is no need for the guardian. If the application is granted the temporary guardianships end in 60 days, at which time, the court will decide if a there is the need for a permanent guardianship or none at all.
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“Our business in the Universe is not to deny its existence, but to Live, using the Laws to rise from lower to higher” - The Kybalion
When you don’t know how long the storm is going to last, you need a team that has the intestinal fortitude to weather the storm with you. Please call or email The Law Office of Victoria Broussard, for your complimentary 15 minute consultation.