How to choose a GREAT Wills & Trust Attorney

I know many struggle in knowing how to find the right Wills, Trusts, and Estate Planning Attorney for them. Here are a few suggestions when choosing a lawyer to write your Will and powers of attorney:

  1. Ask if estate planning is at least 50% of their practice. There are far too many attorneys who “dabble” with writing Wills and that causes attorneys like me and clients like you almost as many headaches as online forms. For example, our practice is about 98% estate planning and probate. That’s not saying an attorney needs to be “board certified” for this type of work. I’m not and most of my fellow Wills & Trusts lawyers are not, but you can always use that as a criteria.
  2. Ensure that they also practice probate. If they don’t know how Wills get interpreted by the court, then they have no business drafting these documents, in my opinion. I have become a lot better at drafting through understanding how various courts may interpret language and clauses.
  3. I would ask if they will guide you on how to make sure your beneficiaries of life insurance, retirement, and financial accounts are set up in a way that will work with your wishes. For example, you do not want to name a child under 18 as a beneficiary.
  4. Make sure you ask if they will help you with ensuring your documents get signed appropriately. If it’s not signed properly, it’s not valid. Texas requires you to sign in the physical presence of two witnesses. No exceptions, even though I’ve seen some “online notary services” provide witnesses who appear via video conference and that will not hold up in court. We have very strict guidelines on having people sign in our office or we provide detailed instructions and guidance on how to arrange themselves.
  5. Ensure they don’t just make you fill out a long form without explaining concepts and roles that you are assigning to people. I have some clients who do great with that, and for them, they can fill something out (see references to our new online Will app), but our typical client has an initial consultation where we walk them through everything.
  6. Find out the timing and process. They should be able to provide you drafts to review within a few weeks tops. Find out how quickly you can then get the drafts updated and/or signed. Many attorneys drag their feet and an unsigned Will is no Will at all.

I could go on and on about what I believe makes a GREAT Wills & Trust attorney, but these are some of the factors I would encourage you all to look into when you are making this important decision for yourself and your family.

How to Write Your Own Will in Texas

During this time, there is a heightened concern for getting your affairs in order. One of the biggest challenges is getting your Will signed with all legal requirements. To be a valid Will, you must sign it in the physical presence of two unrelated, disinterested witnesses. For added protection, it should also be notarized. That is three people who are not your family that you have to be face to face with at a time when you are supposed to be social distancing and sheltered at home.

One exception is a holographic Will that is entirely in your own handwriting and signed. That’s it! Now, this is a TEMPORARY fix and has many drawbacks as far as not being able to have the degree of legal complexity and thoroughness that even a simple Will requires and it does require extra steps to prove-up in probate court. BUT this is better than having nothing and it is better than trying to complete an online form (that still need the formal signing requirements).

We do not recommend that you attempt to write this without any instruction, so we’ve created an online tutorial that will guide you on the best way to Write Your Own Will. Click here to start the tutorial!

5 Reasons Why You Should Get a Will NOW! (COVID-19 Edition)

  1. You are contemplating your own mortality.
  2. You have more time on your hands to think through these decisions.
  3. You are no longer unsure about who you trust to name as guardians of your children, because at this point, you’d let anyone take them!
  4. You’ve run out of things to talk about with your family.
  5. Beat the rush of people who are waiting to get this done once the dust settles. We are already dealing with a high volume of clients anxious to get this planning done; just imagine what it will be like when things begin to return to normal.

These are uncertain times and many are feeling anxious. What better time to get this vital planning started? You can even view the recording of our online class: How To Write Your Own Will: https://bit.ly/2WW9Ecg.

And remember: If you don’t have a Will, the state of Texas has one for you!

Contact us for more information!

Do I Need a Living Trust?

What is a Revocable Living Trust?

Much has been written regarding the use of “living trusts” (also known as a “revocable trust,” “inter vivos trust,” or “loving trust”) as a solution for a wide variety of problems associated with estate planning that wills cannot address. Some attorneys regularly recommend the use of such trusts, while others believe that their value has been somewhat overstated. The choice of a living trust should be made after consideration of a number of factors.

The term “living trust” is generally used to describe a trust that you create during your lifetime.  A living trust can help you manage your assets or protect you should you become ill, disabled or simply challenged by the symptoms of aging. Most living trusts are written to permit you to revoke or amend them whenever you wish to do so.  These trusts do not help you avoid estate tax because your power to revoke or amend them causes them to continue to be includable in your estate.  These trusts do help you avoid probate, which may not always be necessary depending on the cost and complexity of probate in your estate.

A “living trust” is legally in existence during your lifetime, has a trustee who currently serves, and owns property which (generally) you have transferred to it during your lifetime. While you are living, the trustee (who may be you, although a co-trustee might also be named along with you) is generally responsible for managing the property as you direct for your benefit. Upon your death, the trustee is generally directed to either distribute the trust property to your beneficiaries, or to continue to hold it and manage it for the benefit of your beneficiaries. Like a will, a living trust can provide for the distribution of property upon your death. Unlike a will, it can also (a) provide you with a vehicle for managing your property during your lifetime, and (b) authorize the trustee to manage the property and use it for your benefit (and your family) if you should become incapacitated, thereby avoiding the appointment of a guardian for that purpose.

Advantages of a Living Trust:

  • It’s a smart way to avoid probate.
  • Keep more money in the family by avoiding potentially lengthy and expensive court proceedings.
  • Your personal and financial matters remain private. By creating a living trust, the public doesn’t get to see what you owned, who you owed, or who will inherit your assets.
  • Your affairs get handled if you’re incapacitated. Avoid going to court by appointing a trustee to take charge of your finances according to the instructions provided in your living trust.
  • A living trust doesn’t change your financial affairs. A living trust lets you do whatever you want with your money – buy and sell assets, open bank accounts and make investments just like you do now. You can amend or change the trust any time, or even revoke it and pull your assets out. It remains on the shelf, ready to act if something happens to you or your spouse.
  • Avoids probate in multiple states if you own real estate outside of Texas.

Disadvantages of a Living Trust:

  • Time-consuming to maintain – you will need to transfer all of your property, beneficiaries, bank accounts, and other assets to the trust AND you will need to remember to acquire any new assets in the trust throughout your life in order to avoid probate.
  • More expensive. Now, if you are successful in transferring your assets to your trust, then the trust will ultimately save money as it can avoid or at least significantly reduce probate costs.

Frequently Asked Questions:
What is a living trust?
It’s a legal document that states who you want to manage and distribute your property if you’re unable to do so, and who receives it when you pass away. Once signed, you transfer ownership of your assets into the trust and you remain in complete control of your property. The trust property can be managed and distributed without going through the probate court.

Can I transfer property into and out of the trust while I’m alive? Yes. If you have an individual trust, you can transfer property whenever you want. If you have a shared trust, you’ll need your co-trustee’s consent if you own the property together.

Do I still need a Will if I have a living trust? Yes, because you may not have transferred your property into your trust before you pass away. A Living Trust includes a pour over will. It transfers property still in your name alone when you pass away to the trust to be distributed to your beneficiaries. It also lets you name guardians for your minor children.

Aren’t living trusts just for the wealthy? Not at all. People of all income levels can set one up to manage their finances in case they become disabled, or to provide for loved ones without going through probate court, which may be required of relatively modest estates.

Elder Law – Planning for Incapacity

by Jen Green, Burch Law

No one wants to think about the possibility of becoming incapacitated. But as estate planning lawyers are all too aware, it can happen to anyone at any time. If you don’t plan for incapacity, incapacity may plan for you. It is an especial concern now that modern medicine has vastly lengthened the quantity of life, but not necessarily the quality. Elder law isn’t just for the elderly; we all need to plan ahead for ourselves and our loved ones.

But even when we don’t want to plan for incapacity, most of us are opinionated about whom we want to have access to our stuff. And who we will let make decisions for us.

The time to put systems in place to ensure that your wishes are followed in these matters is when you still have the capacity to make decisions under the law. Just because the standard of legal capacity to make a Will is pretty low is no reason to put off necessary planning. The temptation to procrastinate is great, but better to use your procrastination credits on that long-deferred plan to clean out the garage or those vaguely disturbing dark corners in the back of your closet that are starting to mysteriously expand and make strange mewling sounds….

Anyway, back to the plan: an important component of any plan to legally cement your wishes in place is the statutory durable power of attorney (your financial power of attorney). This document will allow your most trusted relatives and/or friends to manage your finances for your benefit while you are incapacitated, whether from a temporary hospital stay or something more long term. It needs to be durable to remain in effect after you become incapacitated (otherwise it basically goes away the moment you become incapacitated). And if something happens such that you can’t manage your finances as usual, you will need someone to access those funds to pay for your bills and your care.

You will also need a medical power of attorney and the accompanying release that allows a trusted loved one to make medical decisions and access your medical information.

Additionally, you will also want to be the one to choose a guardian in the event you become incapacitated. You don’t want this choice made by a court or by a stranger. Always better to plan ahead and set down your wishes in a valid legal document. If you wouldn’t let someone touch your money or make a decision for you now, you sure don’t want them stepping in later when you have no say in the matter. Guardianship comes up in many other contexts than elder law, because incapacity can affect people at all stages of life.

We can’t emphasize enough the importance of planning ahead. Our estate planning lawyers can help guide you through thinking about your choices and choosing the best options for your lifestyle. We can prepare the powers of attorney, directives, trusts, Wills, and other documents you will need to secure your wishes in the face of future eventualities.
If you have a ne’er do well relative or friend who has their eye on your estate, don’t let failure to plan provide their golden opportunity. Stop them now. You can get the last laugh. But it requires proper planning. We can help. Contact our estate planning lawyers to set up a no obligation consultation.

What Your Bank Isn’t Telling You About Your Estate Plan

I often have to unravel misinformation for my clients when it comes to Wills, estate planning, and probate. Perhaps this is most common when it comes to banks. While bankers are not attorneys, they are often put in the position of navigating the legal world of estate planning and probate. It is vital that clients are informed for when, not if, they receive confusing information from a well-meaning banker.

Here are a few keys points to know:

  1. Powers of Attorney: A power of attorney is ONLY valid while you are alive. It is incorrect to ask for a power of attorney in the event of death.
  2. Account Options: You are not always given the advice on how you want to own your accounts. Every bank has its own policies, but here a few generalities to understand:
    • “Putting someone” on your account can mean a lot of things. Did you add him or her as someone who only has access while you are alive, but no ownership interest – somewhat like an internal power of attorney? Or did you add him or her as an account owner, meaning such individual has ownership interest? Or maybe you added someone as a “POD (pay on death)” or “TOD (transfer on death)”, which would only be distributed upon death? There is no right or wrong way to set up your account – the only concern is what is your intent? A POD or TOD overrides a Will, so if you’ve named someone with the desire to assist with your estate, you actually gave such individual a gift with no obligation on how your money is used.
    • Additionally, accounts set up by one or more persons as joint tenants with rights of survivorship will pass to the surviving account holder or holders. Not all joint accounts pass to the survivor. When joint accounts are set up as tenants in common, the portion of the account that was owned by the decedent passes under his or her Will.
  3. When an Account Holder Dies: Perhaps nothing baffles banks more in my experience than when a customer dies. Whether you have a Will, living trust, or nothing at all, the information many of my clients receive is completely contradictory. Often an individual is told they can just do a sworn statement filed with the court called a “Small Estate Affidavit” to transfer an account. Without knowing A LOT more about the estate, there is no way to make such a claim. First, if there is a Will, you cannot use this document. Second, with the exception of the house and some other exempt property, the total assets cannot exceed $50,000…and any debts cannot exceed the value of the estate either. Another misunderstanding is that a Will does have to go through probate BEFORE an Executor can act or have access to any funds. I could write a great deal more about how accounts are settled upon death, but suffice it to say, reach out to an attorney BEFORE you go to the bank when a loved one dies.

There are many other issues when it comes to financial accounts that can conflict with your intent. If you’d like to review your accounts, please let me know. I’m here to navigate the murky waters of Wills, estate planning, and probate!

Parents: Your Kids Need Legal Planning Once They Turn 18!

Did you know that once your children turn 18, you will not have automatic rights to make legal and medical decisions for them? You won’t even have access to medical information in case of an emergency! That’s right, once someone is of legal age, no one, not a parent, not a spouse, has automatic legal rights. Once many parents realize this, they have their kids rush in to sign legal documents, especially before they go off to college.

Here are some of the most important documents to consider:

  1. Medical Power of Attorney – A Medical Power of Attorney (or Durable Power of Attorney for Health Care) designates an agent to make medical decisions if you are unable to make them.
  2. Medical Record Release (HIPAA) – A HIPAA Release Authority is a document that specifies who may have access to your medical records.  For example, most clients will name the same individuals as in their Medical Power of Attorney so that they may have access to your medical records if they have to make medical decisions on your behalf.
  3. Financial Power of Attorney – A Statutory Durable Power of Attorney (or financial Power of Attorney) designates an agent to make financial decisions and control property on your behalf.  A Power of Attorney gives great financial responsibilities.  For example, if you are in an accident and are in the hospital, your agent could help pay your bills and manage your financial affairs in your absence.

There may be other planning that is necessary for your children, which is why it’s vital to consult a qualified attorney to guide you through your specific circumstances. There are other considerations as well in the event your child has a bank account or a vehicle. You may want to ensure that financial accounts are set up with pay on death clauses (POD) or with rights of survivorship to allow a parent to have access in the event of death.

These do not have to be complicated or expensive matters to address. While no parent wants to think of their children being hospitalized, disabled, or dying, it is possible and creates additional heartache to be powerless to act for your child.

For more information, watch our informational video: https://youtu.be/psa3_2TpSTw

If You Don’t have a Will…You’re a Bad Parent!

Ok, not really, but I had to get your attention as to how important this planning is!

You love your children, you’d do anything for them. Yet you still don’t have a Will to protect them if the unexpected happens. Or you mistakenly think that an online form or program is sufficient enough to cover those who are most precious to you. Many do not realize the consequences of not having this planning completed…and having it done correctly!

Without a Will…

  • Your children will become wards of the state and a court will determine the guardian of your children.  Your family could end up in court fighting over the kids, or they could end up with a stranger.
  • The court will determine who inherits your estate as well as the trustee of your children’s inheritance.
  •  Your court-appointed administrator/executor may have to post a bond to guarantee that s/he is responsibly managing the money the state grants to your underage children.
  • In blended families, a new spouse may become partners with step-children or possibly an ex-spouse in handling your estate.
  •  The new spouse will not be legally required to use those assets for your children and when s/he dies, s/he will not be required to leave any of those assets to your children.

 Don’t Take the Risk of Going Online

There are a myriad of issues that are not addressed or are left incomplete when someone tries to draft their own documents through online forms or Will kits. I wrote more about this in a previous blog:https://burch-law.com/think-an-online-will-is-better-than-nothing-think-again/.

For parents in particular, going online is a huge mistake. Much of your estate, such as life insurance and retirement, is not controlled by your Will. Beneficiaries of such assets need to be carefully coordinated in order to ensure inheritance is distributed to your children in the manner that you wish.

Also, when you use online forms you are not aware of other planning that may be necessary. For example, a Will can cover guardianship of your children if you pass away, but what if you are in an accident or incapacitated? There is no one automatically designated by law to step in for your kids. There is; however, a document that can be created to cover such a situation. Bottom line, you are not aware of all the considerations and your options unless you consult an attorney.

So, no, you’re not really a bad parent. However, your children are counting on you to protect them. The reality is, you need to plan for the unexpected to ensure that no matter what, your kids will receive the best care possible rather than leaving it to chance…or to the state.

Because…If You Don’t have a Will, the State of Texas has One for You!

Think an Online Will is “Better than Nothing”? Think Again!

Unsatisfied Woman With Laptop Showing Thumbs DownSo many people are under the false assumption that drafting a Will through an online form or Will kit is “better than nothing.” I disagree. An online Will is actually WORSE than nothing!

You’ve been there. You and your spouse are frantically rushing around trying to get ready for a big trip that you’re finally getting without the kids and then it dawns on you: “What if something happens to BOTH of us?” Cue the internet and searching for a form to download. You quickly answer the questions, print it off, sign it, maybe even get it notarized and think “Well, we KNOW we should see a lawyer about this, but at least this is ‘better than nothing.’” This is one of the biggest misperceptions I hear.

There’s no “close” in Wills & Probate. If a Will isn’t signed with the legal requirements, then it is NOT valid and cannot be used in any way to show your intent! Many times these forms are not even signed correctly. Texas has specific requirements for how a Will is to be signed, witnessed, and notarized. I had a case awhile back where a single man with two adult children decided to use a website to draft his Will. “All” he had was a house, a bank account, and a car. Simple, right? Why go to a lawyer for advice and guidance! When do you find out a Will wasn’t signed properly? Usually when it’s too late…as in this case. When his daughter came to me after he died, I immediately noticed that he signed on one date; the first witnessed signed on a different date; and the second witnessed signed on yet another date. I looked at the daughter and said, “Your dad and both witnesses signed on three different dates.” And she said, “Yes, is that a problem?” Knowing that she is grieving, I gently told her that, unfortunately, the Will isn’t valid as the witnesses not only have to witness her dad’s signature, but also each other’s. Looking slightly defeated, she asked, “Well, can we at least show the court his intent to try and make this easier?” I had to tell her “no.” There is no “close” in Wills and probate. So what did we have to do? File a determination of heirship where the court has to appoint an attorney ad litem to research the heirs and present the findings to the court and then get her brother to agree that she can serve as the executor/administrator of the estate. If you think that sounds quick and inexpensive, you’re wrong. This extra time and expense could have been avoided by seeing an attorney. Why didn’t he go to an attorney in the first place? To save money. And in the end, not only did it cost WAY more money, but caused extra time and grief for his family.

A Will is not enough. Just having a Will is often not all that is needed when it comes to your estate and family planning. (see our other blog “Why a Will is not Enough” https://burch-law.com/why-a-will-is-not-enough/) Many do not realize that much of their money and assets will not even be controlled by their Will. When you designate a beneficiary on assets such as life insurance, retirement accounts, annuities; those designations will override whatever you stated in your Will.

For parents of young children, you do NOT want to name minor children as a beneficiary on these assets even if you have a Will that creates a trust for them. Rather, you want to direct your beneficiary to your Will with the trust (or a living trust). Who is going to guide you with this if all you did was an online form? If you leave your young child named as beneficiaries on your life insurance or retirement then that money can get stuck in the court and then given to the child at age 18 rather than going through the Will that has a trust and trustees established for your child. But you don’t know that or have any help unless you consult a qualified attorney.

Overall, DIY legal planning is a huge mistake even when you perceive your circumstances to be “simple.” There is simply too much at stake and there is no substitute for sound legal counsel to guide you through these decisions, ensure your wishes will be upheld and that your documents are enforceable. No, an online Will is not “better than nothing”…it is worse than nothing, because it gives you a false sense of security when, in fact, you may still be left with nothing.

If You Died Today, Would Your Family Be Prepared?

Pretty depressing thought, right? I get it, I do. All I can tell you is that it is far less depressing than having your family sitting across from me sharing how you always planned to get a Will and powers of attorney put into place, but just hadn’t gotten around to it.

The problem is, you just never know when an unexpected illness or accident may occur. According to recent statistics in Texas, 1 person is killed every 2 hours and 29 minutes in a traffic accident. One person is injured every 2 minutes and 12 seconds! If you’ve driven on 635 during rush hour, you know this is true! A sudden heart attack takes about 325,000 adult deaths every year. This list goes on and on of how no one is immune from illness or death. So when is the best time to plan? NOW!

I much prefer a call to get your Will drafted than a call from your family that it’s too late. Even the seemingly simplest of situations can become a huge ordeal that could be avoided by some basic planning.

Did you know that without a Will:

  • The court will determine the guardian of your children. Your family could end up in court fighting over the kids, or the kids could end up with a stranger.
  • The court will determine the trustee of your children’s inheritance.
  • The state determines who inherits your estate.
  • The court will appoint an executor for your estate.
  • Your court appointed administrator may have to post a bond to guarantee that s/he is responsibly managing the money the state grants to your underage children.
  • In second marriages with children, a new spouse may become partners with stepchildren or possibly an ex-spouse in handling your estate.

Don’t let this happen to you…don’t put your family through the pain of having to bear avoidable costs and complications during a time of tremendous grief. You’re out of excuses and the time is now. Get your Will and other planning in place today!

And remember: If YOU Don’t Have a WILL, the State of Texas has One for YOU!