Do you have a child who is 18 years old and going to college?
Once “children” reach the age of 18, they are now legally adults. Parents can no longer make medical decisions or access medical information unless the adult child grants permission. Also, if a child is no longer claimed as dependent on tax returns, the parents likely won’t be able to get educational information either. If you have a child who is 18 years or age or older and going to college, you may consider having them grant a power of attorney for medical decisions, a power of attorney for financial decisions and educational information, and a HIPAA release for medical information. If your child would like to have powers of attorney and a HIPAA release prepared, contact the Law Office of Roy Neal Linnartz, PLLC at 830-625-9300.
What is the statute of limitations for probating a Will after someone passes?
The statute of limitations for probating a Will is four years from the date of death. However, sometimes the only asset in the estate is real property and because that is typically not sold immediately after a death, people don’t realize they need to probate the Will. There is a method of passing the real property through the Will after four years called probating the Will by muniment of title. The applicant in the probate by muniment of title cannot be at fault for failing to probate the Will. If there is good cause to probate and no fault of the applicant for not having probated the Will, the court can approve the Will as valid and sign an Order stating such. A certified copy of the Will and Order serves to vest title in the beneficiaries of the Will. If you need help with probate, contact the Law Office at Roy Neal Linnartz, PLLC at 830-625-9300.
Do I need to file my Will or should I give copies to my family?
While you may deposit your Will with the County Clerk for safekeeping during your lifetime, it is not necessary to do so. It is typically best to retain control of your Will and to keep it in a safe place. However, the Executor and any successor Executors should know where to find your Will and be able to access it once you are deceased. Sometimes people keep their Will in a safe deposit box but if the Executor does not have access to the safe deposit box, it requires a court order to open and examine the safe deposit box for the Will. The safe deposit box is generally not the best place to store the Will because it can lead to unnecessary delays in probating it. People also often want to give out copies of their Will to family or Executors but that typically is not recommended. If you decide to update your Will at a future date and reduce or eliminate what a beneficiary receives, they may not be happy with the new outcome. They may destroy an updated version of your Will and probate the prior copy which benefits them. In short, it is typically best to maintain control of your Will and not to give out copies.
If you need assistance with a Will, please contact the Law Office of Roy Neal Linnartz, PLLC at 830-625-9300.
What is a Lady Bird Deed and how can I use it as part of my estate plan?
Enhanced Life Estate Deeds (aka Lady Bird Deeds) are a tool that can be used in estate planning to keep real property out of probate. Essentially, the maker of the deed gives a remainder interest in their property to a person or persons, but the maker retains the right to use the property for their lifetime. The maker also reserves the right to change or terminate the terms of the deed, sell the property, or mortgage the property. Because the maker of the deed retains full rights to the property and the right to terminate the deed, it is not considered a gift to the remainder interest holder. Use of this type of conveyance allows the maker to pass the property outside of probate and would not be subject to Medicaid reimbursement claims. Since this type of conveyance is not considered a gift, it can be used to plan for Medicaid to preserve the primary residence as an asset and can be made by a power of attorney (unlike Transfer on Death Deeds). If spouses are making a conveyance simultaneously, we often include a right of survivorship before the conveyance of the remainder interest so the surviving spouse retains 100% ownership. However, this is determined on a case-by-case basis based on the outcome desired. Assuming the property is community property, they could elect to allow their community property to convey upon the first to pass leaving an undivided interest with the surviving spouse.
If you want help with estate planning, Medicaid planning, or a Lady Bird Deed, contact the Law Office of Roy Neal Linnartz, PLLC at 830-625-9300.
The 85th Legislature changed the Estates Code affecting powers of attorney as follows:
- Requires third parties to accept durable powers of attorney (with some exceptions)
- Changing the language of the Statutory Durable Power of Attorney
- Changing the level of fiduciary duty of the agent
- Allowing for the agent to appoint a successor agent
- Allowing for agent compensation and reimbursement
- Allowing for agent to be given additional authorities
- Defines co-agent authority
Older versions of the Statutory Durable Power of Attorney are still valid. However, if you would like to expand what your agent can or cannot do, it may be worthwhile to update your power of attorney.
Maybe.
If your spouse had non-probate assets such as insurance or retirement benefits and you are the beneficiary, you typically get those assets paid out or transferred to you fairly quickly and simply. These typically do not need to go through probate if there is a surviving beneficiary designation.
If your spouse had “payable on death” or “right of survivor” designations on banking and other accounts, they will most likely pass to the surviving spouse.
If your spouse owned real property, it may depend on whether that real property was separate or community and whether your spouse had a valid Will or not.
If your spouse had a valid Will, they could convey their interest in any real property they own to the surviving spouse, whether separate or community. However, their interest, whether separate, or community, will go to the the beneficiary named in their Will. The Will should be probated to transfer title to the property to the beneficiary.
If your spouse did not have a valid Will, the person inheriting the real property will depend on whether your spouse had children with someone other than you and whether the real property is separate or community. If your spouse had no children, or no children with anybody else, you should inherit the real property. If your spouse had children with somebody else and owned separate property, the children will inherit the real property and you will inherit a life estate in one-third (1/3) of the real property (meaning that you can use it during your lifetime). If your spouse had children with somebody else and owned community property, the children will inherit your deceased spouse’s one-half (1/2) interest and you will retain ownership in your one-half (1/2) of the real property. If your spouse did not have a valid Will, an heirship determination and a probate administration should be completed in order to transfer the title of the property.
Here is a link to the Travis County Probate Court’s diagram of descent and distribution without a valid Will:
https://www.traviscountytx.gov/images/probate/Docs/DnD_diagrams.pdf
*The above is an overly simplified answer to the question. There are other scenarios where probate could pass outside of probate such as if the property is held in trust or if there is a transfer on death deed. Contact the Law Office of Roy Neal Linnartz, PLLC for help with estate planning and probate.
In Texas, if you receive Medicaid benefits, the State is required to try to recover those costs by filing a claim against the estate and a house can be used to satisfy that claim, with some exceptions. Medicaid has a 5 year lookback period so if you give your house away or sell it for less than fair market value within 5 years of requiring Medicaid assistance, there may be a penalty imposed or a delay in getting benefits.
One of the best ways to protect a house from a Medicaid claim is through an Enhanced Life Estate Deed, sometimes called a Ladybird Deed or a Transfer on Death Deed. In the Enhanced Life Estate Deed, you keep the right to revoke the deed, to mortgage the property, to sell the property, or do anything with the property during your lifetime. Upon your passing the remainder interest in the property will vest in someone else, perhaps your child(ren). A Transfer on Death Deed allows you to put a beneficiary on your property. Because you have retained ownership and control of the property in either instrument, there is no gift or transfer so it is not subject to the 5 year lookback. When you pass the property immediately passes to someone else so it is not subject to probate and is not subject to a Medicaid estate recovery claim.
If you are interested in protecting your house from a Medicaid estate recovery claim, you should discuss it with an experienced estate planning attorney. Contact the Law Office of Roy Neal Linnartz, PLLC at 830-625-9300 for help protecting your home from Medicaid.
Texas is a “community property” state meaning that property is classified as either community property or separate property.
Property owned prior to a marriage is separate property while property acquired during the marriage is presumed to be community property. However, property acquired as a gift, inheritance, or bequeathal in a Will is also separate property.
Examples of separate property:
- Property and income owned or earned prior to marriage
- Gifts
- Inheritances
- Capital gains
- Personal injury claims for injuries
Examples of community property:
- Income during the marriage
- Property acquired during the marriage
- Dividends and interest
- Personal injury claims for lost wages
- Retirement benefits accrued during marriage
Property retains its character through mutations such as selling a house and buying a new house. For example: If one spouse owned a house prior to the marriage and sells that house, the cash proceeds would remain separate property. If those cash proceeds are used to purchase another house, the second house is also the separate property of the spouse that sold the first house and applied the proceeds to purchase the second house. However, the mutation should be documented because there is a presumption that property acquired during a marriage is community property.
If one spouse owns a house prior to the marriage, the house is that spouse’s separate property. If the married couple puts community property funds into improving, maintaining, or repairing the one spouse’s separate property house, there could be a claim for reimbursement by the spouse who does not own the house as separate property but the house would remain the separate property of the spouse who owns the house as community property.
If someone wants to retain the character of their separate property, it is important that they keep their separate property compartmentalized and not commingled with community property assets. Separate property can be traced back to determine its character but doing so can be difficult and cost prohibitive if the commingling happens for a period of time.
The above description of community and separate property is very general and simplified to answer basic questions. Each scenario should be evaluated based on the facts of that scenario.
For more information you can review this section of the Family Code: https://statutes.capitol.texas.gov/Docs/FA/htm/FA.3.htm
What Is Estate Planning?
An estate plan is a way of simplifying things in the event that you are incapacitated or you are deceased. If you don’t have a plan, the state has a default plan for you. Of course, falling back on the default plan can be lengthy and expensive because they have put a lot of protections in place to make sure that no one is forgotten. Estate planning allows your wishes to be fulfilled rather than enacting some default plan assigned by the state, in addition to saving your family time and money.
Estate planning is one of the very few areas of law that we practice. We are experienced and have been handling these cases for quite some time. We stay up to date with statutes and case law. We are not general practitioners, we handle probate as a niche area of practice.
For more information on Estate Planning In The State Of Texas, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (830) 625-9300 today.
Why Do People Avoid Or Delay Creating An Estate Plan?
No one wants to talk about death or incapacity. It’s not a fun subject to think about. We find that a good number of people come to us because either they’re planning the birth or adoption of a child, there’s been a death in the family, there’s been a divorce, they are planning to travel, or there’s been some other prompting factor. Some people just realize that it’s time to start planning because it’s the adult thing to do.
Many people think they don’t have enough assets to warrant planning because they just don’t understand how estate plans work. People assume that when they pass, their property and possessions will automatically go to either a spouse or to their children. Often, we find that the spouse or children, when they try to sell or transfer that property, run into issues where they had no idea that something more needed to be done upon someone’s passing. When parents are deceased and there are multiple children in question, sometimes the children no longer get along or some of them have passed. They are left with a very complicated situation with many heirs involved. At that point, the property may be so diluted that it becomes cost-prohibitive to clear up the title because if they don’t all cooperate and agree, going to court takes so much time and expense that it eats up the value of the property. Many times, people don’t understand the importance of making a plan so that what they want to be done actually happens.
What Happens If Someone Passes Away Without Having An Estate Plan Or A Will In Place?
If you have a will, the will gives you control. You get to determine what actually happens. The legislature wants to protect heirs. If you don’t have a will, there has to be a determination as to who the heirs are, in addition to appointing someone to be the administrator of the estate. Without the agreement of all the heirs, it requires an administration, which is lengthy and expensive because it requires court permission to do everything in settling the estate. Having an estate plan drastically reduces the time and expense it takes for the beneficiaries or heirs to clear up the estate and ensures that when you’re gone, what you want to happen will happen. Having an estate plan is not for the person making it, it is for the people left behind dealing with it.
For more information on creating an Estate Plan, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (830) 625-9300 today.