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Community Property Basics

As you may know, Texas is a community property state. This means that Texas law differentiates between community property, which belongs to both spouses equally, and separate property, which belongs to one spouse. In general, property acquired during marriage is community property. Separate property consists of anything one spouse owned before marriage, property acquired by one spouse by gift or inheritance, and recoveries for personal injuries sustained by one spouse (except for a recovery for loss of earning capacity during marriage). DISTINGUISHING COMMUNITY PROPERTY FROM SEPARATE PROPERTY CAN BE DIFFICULT. In theory, the distinction is easy to draw. But in practice, things often get more complicated. For example, if you owned a duplex rental home before marriage, it would remain your separate property during marriage. However, rental income generated by the duplex during marriage would be community property. And if you sold the duplex, the proceeds would remain your separate property…unless you commingled the proceeds with community property and rendered them untraceable. The same goes for inherited property, which remains the separate property of one spouse unless commingled with community property. Things get especially complicated when a couple has acquired property while domiciled in other states with different marital property laws. These “wrinkles” make it easy to unknowingly convert separate property to community property. DIFFERENTIATING BETWEEN COMMUNITY AND SEPARATE PROPERTY IS VERY IMPORTANT FOR ESTATE PLANNING PURPOSES BECAUSE IT DETERMINES HOW PROPERTY IS DISTRIBUTED AT DEATH. In Texas, if Spouse A dies intestate (without a will) and is survived by Spouse B and their children, all of Spouse A’s community property is distributed to Spouse B. But if Spouse A had children from a previous marriage, then the community property would be split, with one-half going to Spouse B and one-half going to Spouse A’s children (but Spouse B would have the right to use the homestead residence for life). Separate property, on the other hand, is treated differently. Spouse A’s separate personal property would pass one-third to Spouse B and two-thirds to any children. Separate real property would pass to any children, but Spouse B would have the rights to one-third of the real property for life. However, it is important to remember that these rules merely specify what happens when a person dies intestate. A thoughtful estate plan allows you to specify exactly how, when, and to whom you want your property distributed. IF ALL THIS SOUNDS COMPLICATED, THAT’S BECAUSE IT IS. As you can see, even these relatively simple concepts can become exceedingly complex when spouses move between states, have children of separate marriages, etc. This article is not intended to serve as a definitive guide to Texas community property laws. The purpose here is merely to underscore the importance of having an estate plan. Failure to plan can result in some very complicated, and often very undesirable, outcomes. To learn more about Texas community property laws or the benefits of estate planning, browse our archives, or contact an attorney.

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| Read Time: 2 minutes | Estate Planning

Will or Trust? Or Both?

In general, estate plans are either will-based or trust-based. Both wills and trusts are powerful estate planning mechanisms (and each has its own advantages and disadvantages). BUT DOES IT EVER MAKE SENSE TO HAVE BOTH A WILL AND TRUST IN YOUR ESTATE PLAN? THE ANSWER IS…YES. Our trust-based estate plan packages always include a “pour-over” will to provide for the distribution of any assets inadvertently excluded from the living trust. In other words, the pour-over will acts as a backstop that can be used in the event certain assets are accidentally omitted from the trust. This allows the client to rest easy, knowing that all of his or her property will be properly distributed. Also, sometimes a will creates a trust after probate. These kinds of trusts, which arise from a will and become effective when the testator dies, are referred to as “testamentary trusts.” Testamentary trusts are often created to care for young children because minors cannot directly receive substantial gifts. A testamentary trust allows the testator to leave a gift to a minor child and appoint a trustee to manage the trust until the minor becomes old enough to handle that responsibility him or herself. ONE OF THE MOST FUNDAMENTAL ESTATE PLANNING DECISIONS IS WHETHER TO MAKE A WILL OR A LIVING TRUST. But it is important to remember that trust-based plans should also include a will, and wills can create testamentary trusts. Does the terminology confuse you? Don’t worry – you are not alone. To learn more, visit the estate planning section of our web site, or contact an attorney today.

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| Read Time: 2 minutes | Estate Planning

Do I Really Need an Estate Plan? (Spoiler Alert: Yes)

If you don’t have an estate plan, the state of Texas will ultimately decide who receives your property after your death, and a judge will decide who cares for your children (and pets). If this scenario makes you uncomfortable, consider making a comprehensive estate plan. There are many reasons to make an estate plan.  The three reasons most commonly cited by attorneys are: 1) to transfer assets from one generation to the next; 2) to avoid probate; and 3) to avoid estate taxes. But there are many other reasons to plan your estate, such as naming guardians for your children, planning for Medicare and other government benefits and protecting assets from creditors, bankruptcy and divorce. THERE’S NO WRONG TIME TO MAKE AN ESTATE PLAN. In general, clients don’t randomly wake up in the morning and decide to make an estate plan.  Instead, the need is made obvious to them by a life event, such as: the illness or death of a family member a marriage a birth or adoption of a child when a child first goes off to preschool or daycare when a child leaves for college before, during, or after a divorce The benefits of estate planning are clear…so why do so many people avoid planning their estate? Because the process requires making tough decisions. The hardest decision clients typically encounter is determining guardians for their minor children. The decision can be an emotional one, and can even create conflict between spouses. But the sense of relief experienced by clients who have tackled this tough decision to protect their children is often overwhelming. EVEN THE MOST BASIC ESTATE PLAN IS BETTER THAN NO ESTATE PLAN AT ALL. We advise our clients against “letting perfect be the enemy of good.” The pressure to make perfect decisions shouldn’t deter you from thoughtful planning. And because we want our clients to feel completely comfortable with the decisions they’ve made, we offer free revisions for 90 days after signing.  If a client discovers that after a period of time, a decision they made just doesn’t feel right – we’ll make the change, free of charge. Our goal is to make the estate planning process simple, easy to understand, comfortable and rewarding. To learn more about estate planning concepts, the building blocks of a comprehensive estate plan (such as wills, trusts, advance directives, powers of attorney, and more) visit the estate planning section of our web site, or peruse our blog archives.

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Thanks, But No Thanks: Reasons to Disclaim Inheritances

The “laughing heir” (one who inherits property and laughs all the way to the bank because his relation to the deceased is too distant to warrant grief) is a common conceit in television and movies. A woman opens the mail to find a letter explaining that one of her long-lost relatives has died and, as the relative’s only surviving heir, she has inherited a large sum of money. If the opportunity arose, most of us would gladly cash a large inheritance check or take title to a beautiful property in Martha’s Vineyard.  Would it ever make sense to disclaim an inheritance?  The answer, like most things legal, is maybe. In certain circumstances, disclaiming an inheritance might be wise.  For example, real property might be littered with nuclear waste, or be subject to back taxes that greatly exceed the property’s value. Heirs may also choose to disclaim property for tax reasons.  In some instances, heirs that meet the requirements of a “qualified disclaimer” are treated as if they never owned the property, enabling the property to pass to the disclaiming party’s heirs without a “gift” having been made. Finally, heirs may wish to disclaim property for personal, moral, or religious reasons. Disclaimers are irrevocable, so any decision regarding whether to disclaim an inheritance should not be made without legal counsel.  Consult a qualified attorney and/or tax professional before proceeding. Need advice about disclaiming an inheritance?  Looking for an affordable estate planning attorney in the Cedar Park, Leander, Round Rock, or Georgetown area?  Contact us today.

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| Read Time: 3 minutes | Estate Planning

Demystifying Probate: What You Need to Know

probate (noun): the process of winding up the affairs of a person who has passed away. The concept of probate can be confusing to clients (and even attorneys). In simple terms, a probate is a lawsuit filed against yourself after you die – paid for with your own money – for the benefit of your creditors. PROBATE CAN BE MESSY AND EXPENSIVE. However, probate in Texas is easier to navigate than in most other states. Texas law is often referred to as being “probate friendly” because it allows for independent administration. What does that mean? The Texas Young Lawyers Association explains it this way: [A]fter an independent executor or administrator is approved and an inventory of estate assets or an affidavit in lieu of an inventory, is filed with the court, the executor or administrator can simply take care of the administration of the estate without any further court involvement or supervision. The independent executor or administrator is free to settle with creditors, set aside the homestead and other exempt property, manage the property of the estate, sell assets for payment of debts or taxes, and distribute the remaining estate to those entitled to it. Texas Young Lawyers Association, Texas Probate Passport (2014). However, to qualify for independent administration the will must either specifically allow it, or all of the estate heirs or beneficiaries named in the will must agree to allow it. And while the independent administration process is typically easier and less expensive than the alternative, the executor must still publish notice to potential creditors in a newspaper, and in certain instances file an inventory of assets and/or affidavits with the court. Probate can also be time-consuming. In Texas, the probate process commonly lasts between four and eight months. During this time, the decedent’s assets may not be fully accessible, which can be extremely inconvenient to family members desiring access. Throughout probate, the estate remains open so that claims can be made against the estate by creditors. Only after probate is completed can the estate be closed and assets be distributed. Another issue that frequently arises in probate proceedings is that some of the decedent’s assets cannot be located. IN TEXAS, APPROXIMATELY TWO BILLION (THAT’S BILLION WITH A “B”) DOLLARS IN UNCLAIMED PROPERTY IS HELD BY THE STATE! How did that money get there? When a person dies, their family if often unaware that they owned an insurance policy, real estate parcel or bank account, and when it’s not claimed after certain period of time it escheats (reverts) to the state. If you’re feeling lucky, you can search for unclaimed property that might belong to you by visiting the Texas Comptroller’s web site. Another clear downside to probate is that the process is public. Although most people draft their wills in secret and opt against broadcasting their decisions, few seem to realize that once probate begins, the will becomes a public record. Those wishing to keep the winding up of their affairs private should consider creating a living trust, which allows you to avoid probate altogether. Helpful Tip: Certain kinds of assets are not subject to probate, such as life insurance and retirement accounts that transfer from one person to another via beneficiary designations. Unfortunately, even these assets can be subject to probate under certain circumstances. For example, if you name a minor child as a primary or secondary beneficiary on your life insurance policy and then pass away, the assets may be probated because life insurance companies won’t directly pay insurance proceeds to minors. To make matters worse, the court often appoints a professional fiduciary (who charges by the hour) to manage the asset(s). The proceeds are held in a fund for the benefit of the minor until he/she turns eighteen, at which point he/she receives everything left outright, with no oversight and no direction. For most people, this scenario is less than ideal. While probate in Texas is substantially easier and less costly than in other states, it remains a complicated process with many pitfalls. We typically explain to clients that in most states probate is like a grizzly bear. In Texas, it is like a trained, circus grizzly bear that seems far less threatening – but under the right circumstances it can still bite your arm off, and those who ignore that fact do so at their own peril. To learn more about probate, visit the estate planning section of our web site. If you have questions about your particular situation you should contact an attorney.

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| Read Time: 2 minutes | Estate Planning

Lame Excuses for Not Devising a Comprehensive Estate Plan

Most people don’t spend much time thinking about planning their estate.  It’s complex, daunting, and quite boring.  (Editors’ Note: We actually find estate planning incredibly fascinating!  But we understand that’s not normal.) Here are some of the top excuses people make for not devising an effective estate plan… Estate planning is for wealthy people. This is a common misconception that we’ve discussed before. Estate planning is too expensive. Many people think they can’t afford to make a will when, in reality, they can’t afford not to.  Estate planning is an important investment that can pay major dividends to your family and loved ones in the event of your death.  Let us show you how affordable estate planning can be in the Cedar Park, Leander, Round Rock and Georgetown areas. Estate planning is complex and takes too much time and effort. In truth, drafting effective estate planning documents can be extraordinary complex.  But from a client’s perspective, the process is quick and painless because we do the heavy lifting.  You make the decisions while we do the legwork. I don’t want to think about dying. Nobody does.  But estate planning is for the living, not the dead.  In the event of your death, what would happen to your children and/or pets?  Will your loved ones be forced to spend countless hours in probate court?  There are countless reasons to plan for the future. Estate planning is too invasive.  I don’t want to reveal my private information. Trust is the hallmark of the client-lawyer relationship, and we are bound by law to keep your information confidential.  We take your privacy seriously. Planning for the future is a wise decision, and can be surprisingly easy and inexpensive.  If you’re looking for a rock-solid, affordable estate plan in the Cedar Park, Leander, Round Rock, or Georgetown area, contact us today.

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| Read Time: 2 minutes | Estate Planning

Do I need an estate plan even if I’m not wealthy?

A common misconception is that estate planning is only for wealthy people.  In reality, there are a multitude of reasons for ordinary people have an effective will.  Let’s consider a hypothetical example. Anna is a secretary who lives in Cedar Park and works in Leander, earning $40,000 per year.  She is 29 years old, married, and has two daughters.  Here are some reasons Anna should consider planning her estate: Anna’s estate may be small now, but could be quite large by the time she actually dies.  Most of us begin with small estates that grow larger over time.  Over the years, small pay increases, investment income, and sporadic windfalls begin to add up.  If your estate is growing, even slowly, now may be the perfect time to prepare an estate plan.  Furthermore, it is possible for the size of Anna’s estate to increase after her death if she dies in a manner that gives her estate a winnable survival action against a third party (a drunk driver, for example). Anna may want to nominate a guardian to care for her minor children.  Estate planning is about more than just money.  If you have minor children, who would control their personal and financial affairs in the event of your death?  If, like most parents, Anna believes that she knows better than the court system who should care for her children, she needs a will. Under certain circumstances, Anna’s spouse’s right to deal with her property may be subject to the claims of children if she dies without a valid will. Interested in an affordable estate planning attorney in the Cedar Park, Leander, Round Rock or Georgetown area?  Contact us today.

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