TOP 5 mistakes in Estate Planning and Probate

Administrator — Tue, 18 Aug 2009 00:47:24 +0000

These are my top five I have seen in doing probate and estate planning.
1. I don’t have enough money for it to matter/Can’t I avoid probate?
There are provisions where you can get sometimes get by without opening an administration but why risk it? If you have debts an administration will be needed. If there is real estate there will need to be an administration. Texas probate is not as bad as you have been told. As much as I enjoyed Bleak House by Dickens where the entire estate was consumed by legal costs, Probate in Texas is much easier. With a properly executed will the duties of the executor are generally simple and not costly.
2. I can do it all myself with stuff off the internet or a form book. You may be able to. However, there are pitfalls in the probate code that flumox even experienced attorneys. Every estate has a different set of needs. An attorney familiar with the process can more effectively draft a plan to accomplish your goals.
3. Failure to account for the entire estate. It’s important to account for everything and understand where it will go under your will. I often draw flow charts to help clients visualize where everything will go. Often, clients will forget collections and personal items that they want to pass on to specific heirs. Do you have jewelry, collections or family heirlooms that you want to pass on? Are there mineral rights or royalties you have forgotten? You should talk to your attorney about these items and plan who will received these assets.
4. Failure to plan for incapacity. This is not a fun area to discuss, but there is a real chance that you or someone in your family may face long term incapacity. There is a court proceeding called guardianship, covered in a previous post, which appoints someone to make decisions for you. A court appointed guardian can handle financial matters, make health decisions and generally take care of the daily decisions that an incapacitated person needs. A good estate plan, however, will include documents appointing persons to handle these duties without the need for court intervention. You can decide who will care for you in the event of incapacity. More important in some families, you can decide who you do not want to make these decisions for you.
5. Failure to have an advanced directive or Living wills. The nation saw what a worst case advanced directive or living will scenario could be like in 2005 with the Terry Shiavo case. End of life decisions that should be personal and private, were debated by the entire nation. In Texas, one can complete a simple form that makes your end of life wishes clear. Had Terry Shiavo had this simple form the controversy surrounding her case would have been avoided. Because of the attention that end of life issues are getting as part of the health care reform agenda, I’ll be covering the advanced directive in greater detail in a later post.

So those are my top 5. I recommend talking about your plan with your attorney and your family prior to needing it. No one likes to think about these matters but planning ahead makes these transitions easier for all involved.

Where there’s a will there’s a Lawyer: Estate Planning for the Rest of Us.

Administrator — Tue, 05 May 2009 16:00:33 +0000

I do a lot of wills and other “planning” documents in my practice. Usually, the clients are young couples with children who want to make sure that everything is taken care of. I have had a couple of cases where the client is a person who has recently been given bad news by the doctor. We usually don’t think of wills as something that will be used within the next year but it does happen.
So do you need a will? Most people I deal with are not “rich” by any measure. The typical estate consists of a house with a mortgage, a couple of cars, some bank accounts and retirement. PeopleI often find that clients do much to avoid probate. Bank accounts can be set up as payable on death (POD) or joint tenants with rights of survivorship (JTWROS). Retirement and investment accounts can be set up with a named beneficiary. The question these clients often ask is, “Why do I need a will? If I can transfer all of these assets with a simple administrative form (and NO LAWYERS) why should I go throught the hassle and expense of hiring a lawyer?”

There are a couple of real advantanges to having a lawyer prepare a will and other estate planning documents for you. In Texas, a properly executed will makes the process of transfering assets at death easy and fairly inexpensive. All that is required in a typical probate after the filing of the will is a short prove up hearing, notice to creditors and a return of an inventory, appraisement and list of claims. If you have minor children, a will can include provisions determining who will care for the children in the event of you and your spouse both dying.

If you die without a will there is a long process of administration in which there is an attorney for the estate and at least one attorney for the heirs. You also need to have a proceeding to determine who the heirs are. In a dependant administration of the estate, your attorney must file a motion for court approval of every transfer, sale and expense of the estate. If you have minor children a dispute over guardianship of the children could leave them in limbo for months.

Call today to set up an appointment to discuss getting these important documents prepared for you.

Murphy's Law Blog » estate planning

TOP 5 mistakes in Estate Planning and Probate

Where there’s a will there’s a Lawyer: Estate Planning for the Rest of Us.