Recent surveys indicate 60% or more of us do not have any sort of estate planning in place, not even a will, but younger generations are starting to see the value in at least having a will in place with a surprising 63% increase since 2020. Currently, the 18-34 age group are more likely to have a will than 35-54 year-olds.

The Basics
A Will helps protect your family’s financial future by distributing your property and resources according to your wishes after your death, but what if you become unable to make decisions or advocate for yourself due to illness, injury or mental decline. Does your family know your wishes? Will they abide by them? Having an Advance Directive (Living Will), Medical Power of Attorney and HIPPA Release in place will allow you to designate who you want to make medical decisions for you and what actions you want taken in the case of a terminal illness. A Financial Power of Attorney should also be in place for the same reason. You can designate someone you trust to make financial decisions if you are not able.

Trusts
Trusts provide even more protection for your assets serving to reduce estate taxes and allow the distribution of your assets according to your wishes outside of the probate process, saving your heirs months of waiting. There are a multitude of trusts available depending on your needs. A Revocable Living Trust provides a single place to consolidate all of your assets, reduce estate taxes, and unlike probate, maintain your family’s privacy. A Special Needs Trust allows you to provide for a special needs child or adult without jeopardizing government benefits. An IRA Inheritance Trust could provide a lifetime of steady income for your heirs. A Gun Trust can preserve these family heirlooms. See our Wills and Trusts section for additional information.

More Asset Options
Additional options for having your assets pass outside of probate include:

  • Naming beneficiaries for your financial accounts makes them non-probate assets so they immediately go to your beneficiaries upon your death.
  • In Texas, you can list beneficiaries on your vehicle titles, taking them outside of probate.

  • Ladybird Deeds and Transfer on Death Deeds allow real estate holdings to pass outside of probate as well.

Probate

If you find yourself in the situation where your spouse or close family member dies without a will in place, probating the estate can be time consuming and complicated. Our experienced legal team can guide you through this eight step process consisting of filing, public posting, will validation, cataloging assets, identifying beneficiaries, notifying creditors, resolving disputes and finally distributing assets. Even with a will, you still have to go through probate for the will to be recognized as valid. In Texas, the personal representative of the deceased (executor) generally has four years from the date of death to file for probate. During probate a court legally recognizes the death, oversees payment of debts, and the distribution of assets except those assets that are governed by existing trusts or other means and pass outside of probate. The probate process can be completed within six months for a relatively simple estate. If there is no will or the will is contested, the process could go on for over a year and even longer and involving increased supervision by the court.

Probate Contests

In Texas, a will can be contested within two years after the original probate and the person contesting must prove that the will is invalid. Some examples that would invalidate a will include: excessive influence by a third party, forgery, improper execution, or that multiple wills were executed. These disputes do not have to be settled in court. Often mediation with a third party is used or the opposing family attorneys are able to resolve the dispute and settle out of court. In any of these situations, we are prepared to fight on your behalf.

The Hyde Law Firm understands that you have different and changing needs over the course of your life when it comes to Estate Planning and we will help you preserve the value of those assets for the benefit of your heirs.

Other than having a trust, three main methods exist to avoid formal administration of the estate when there is no will. These include: Affidavit of Heirship, Small Estate Affidavit, and Determination of Heirship without formal administration. Muniment of Title can be used with a will under very specific conditions.

If there is no will, a Determination of Heirship can be conducted instead of using the normal probate process. An application is filed with the probate court who appoints an independent attorney to investigate the deceased’s family history to locate any unknown heirs that might exist. Once the investigation is completed the attorney confirms to the court the identity of the heirs. A hearing then takes place where the court makes a final determination on distribution of assets.

An affidavit of heirship establishes someone as a legal heir to an estate. It should be signed by two disinterested witnesses who knew the deceased, the family history, and can confirm the claim that this person should be considered an heir of the estate. An affidavit of heirship also creates a clean chain of title transfer for any assets they receive.

To bypass the probate process using a Small Estate Administration, the estate must be worth $50,000 or less. No court hearings are required, but specific documents will need to be filed with the Probate Court.

Muniment of Title requires a valid written will and is most often used when there are very few assets and no debts other than a mortgage. A hearing takes place and the judge signs an order for the transfer of assets to the people named in the will.

Contact the Hyde Law Firm today.

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