Estate Planning Archives - Massingill Attorneys & Counselors at Law

Oct 13, 2021 | By Massingill Staff | Read Time: 3 minutes | Articles

Six Estate Planning Tips for Small Business Owners

Estate planning for business owners is one of the most important but overlooked parts of setting up a business. Often, folks wait until it’s too late to have conversations about their wishes for their small business after they pass on. When setting up your business, estate planning for small business owners can be an essential component of preparing for long-term success. Your business is likely one of your greatest assets, and it’s something you should protect with plans and insurance while you’re alive. Don’t let all your hard work go to waste after you’re gone. Talking to a local business estate planning lawyer is the first step in helping protect your greatest asset, your business. At Massingill Attorneys & Counselors at Law, we can help you navigate all aspects of estate planning. To help you prepare, we’ve compiled the six top estate planning tips for small business owners. 1: Draft or Update a Will and Estate Plan A will and an estate plan can be foundational documents for your business. And talking to an estate lawyer is the first step in drafting a solid estate plan for your business. If you die without a will, figuring out how to pass down your company and its assets can become expensive and time-consuming for your heirs. Make sure you avoid this preventable confusion by putting your will and estate plan into place as soon as possible. 2: Communicate Openly About Your Business Succession Plan A business succession plan discusses how you want your business run after you’re gone. Talk about your succession plans with your family and business partners. Succession plans work best when you work with your heirs and partners to put them into place while you’re alive. An experienced Austin, Texas business estate planning lawyer can help you develop your succession plan today. 3: Draft a Buy-Sell Agreement (for Businesses with Multiple Owners) For a business with multiple owners, creating a buy-sell agreement can help ease confusion after one owner dies. A buy-sell agreement allows any of the following to happen upon your death: Your business partners can purchase your interest in the business; Your heirs can inherit your share of the business under your will; Your interest can be sold to a third party; or You can block a third party from purchasing your interest in the business. Make sure you speak to a lawyer and make your desires known. Having a buy-sell agreement in place as part of your estate plan can help open conversations in multiple-owner businesses. It can also ease transitions when one owner exits or dies. 4: Focus on Tax Efficiencies Taxes are one of the biggest concerns for any business owner trying to create an estate plan. One of the key issues in creating a solid plan is reducing the need to sell parts of your business to pay estate tax. Developing your estate plan with an experienced Texas estate planning lawyer can help you understand your potential liabilities. An estate planning lawyer can also help you understand your options for minimizing those liabilities and protecting your business and your heirs. 5: Confirm You Have Enough Insurance Life insurance and liability insurance can be a lifesaver for your heirs. Make sure you have enough of both when you’re doing your estate plan for your small business. You should consider buying enough life insurance so that your heirs or business partners have the liquidity to finalize your business affairs after your death. It’s also a good idea to pay the liability insurance for a certain period beyond your death. This can help your heirs in the event that a customer or client brings a lawsuit after your death. 6: Maintain Proper Records (and Disclose Where They’re Kept!) Any estate lawyer will tell you that an estate plan is only as good as the paper it’s written on. Unfortunately, many people write estate plans and then secure them in places where no one can find them. Don’t let this happen to you. Maintain proper records of your estate planning. Keeping your will and other estate documents with your estate planning lawyer is a great idea. Let your family and business partners (if applicable) know your lawyer’s contact details. How We Can Help Our law firm serves Texas businesses like yours who want to prepare for the future. Attorney Joshua Massingill and his team have helped many Texas small businesses understand their estate planning options. We have abundant experience in estate planning for businesses. Contact us today to book a consultation to discuss your business’s future. We’re standing by and excited to speak with you.

Sep 10, 2021 | By Massingill Staff | Read Time: 4 minutes | Articles

Dying Without a Will in Texas: What Young Families Need to Know About Texas Intestacy Statutes

In many cases, this is what happens if you die without a will in Texas: complications and conflicts. Even more disturbing is that the state ends up determining what happens to your estate rather than you. When you have no will in Texas, you provide no definitive legal assurance regarding what your wishes are, and you give your loved ones no legal right to carry out even the wishes they are sure of. Dying intestate in Texas can and should be avoided by all adults, including those who are part of young families. Why You Should Have a Will A will is an essential part of an estate plan. When an estate planning lawyer creates your will, they do so after meeting with you and learning about your family and assets. They create a legally binding document—a will—that speaks for you beyond the grave. In this document, you state how your property and assets will be distributed. It can also address issues of care and support for your minor children. A will can be very specific. In some cases, you may wish to be sure that you exclude a certain person from receiving anything through your estate. For example, say you have an estranged parent you fear will incorrectly argue that you promised them certain items. Your will can clearly state that you are intentionally leaving them out of the will and that you wish to leave them nothing. In other situations, you may have a partner to whom you are not married. Your lawyer will know that Texas intestate succession laws will exclude them from inheriting your property. As a result, they will make sure that your will, which will supersede dying intestate laws, clearly provides for your beloved partner. For a young family with kids, you and the child’s other parent may find that one of the most important parts of your will is providing for the child’s care if either or both of you pass away. What happens if you die without a will in Texas along with your child’s other parent? You leave with no legally clear statement of whom you wish to raise your children. Dying with no will in Texas leaves your estate without important protections you could have provided by creating a will. The court will deem you as dying intestate in Texas. At that point, the state law, not you, determines what happens with your estate. Regardless of age, health, income, etc. you should have a will. What Are Texas Intestate Laws? Texas intestate succession laws provide a road map of what happens to the estate of someone who dies without a will. The Texas Estate Code, which addresses intestate succession law, states that spouses and children, parents, and siblings inherit, in that order. There are breakdowns regarding percentages for each group, based on which parties are alive when you pass away. An Example of Intestate Succession Laws To provide an understanding of what happens if you die without a will in Texas and how the courts use intestate laws, consider this scenario. A young adult with a partner passes away suddenly and unexpectedly. They leave no will, and their partner is not their legal spouse or domestic partner. They have been with their partner for over 5 years. They were extremely close to their youngest of 3 younger siblings. They had not spoken to or had any relationship with their other two siblings in years, after a falling out. Their parents are no longer alive. The partner and sibling with whom they were very close believe in all sincerity that the deceased would have wanted the two of them to have their personal belongings and possessions. They further agree that the person would have given a sizable amount of their financial estate to a charity close to their heart. However, because the person died with no will in Texas, this does not happen. Texas intestate succession law provides that the siblings would receive equal measures of the estate. The partner and charity would receive nothing. But the two siblings the person was not speaking with would each receive one-third of the estate. Special Consideration for Young Families Without a Will If you are a young family, what happens if you die without a will in Texas is that you do not protect your family or provide clear intentions of your wishes regarding your belongings. Instead, you put those you love in the unfortunate, costly, and time-consuming process of having to wade through court and bow to Texas intestate succession laws. Yes, these laws provide assistance to some family members. However, Texas intestate succession laws are not enough. For instance, while the Texas estate code which contains intestate circumstances addresses children, it does not fully protect them. Young families with wills often also create trusts, guardianships, and other protections for their families. These additional important protections are not fully covered by intestate laws. Your estate attorney can help you adjust your will as you face any of life’s milestones. They can update your will for changes and desires related to: Marriage, Committing to a long term domestic partner, The birth or adoption of a child, Providing care for an elderly parent or disabled sibling, Plans regarding home and property ownership, and Leaving gifts for close friends or charities you grow to deeply care about. Without a will, your wishes may not be carried out once you die. This will be the case even if you made those wishes clear in conversations with those you love. So what happens if you die without a will in Texas? Don’t make your family and loved ones find out. Work with a lawyer now and get a will. One of the most important adult decisions a young family can make is to work with a trusted estate planning law firm to avoid the court applying intestate succession laws to their young family. Massingill Attorneys & Counselors at Law: Austin, Texas Estate Planning Attorneys The attorneys at...

Aug 23, 2021 | By Massingill Staff | Read Time: 4 minutes | Articles

Thinking About Doing Your Own Will?—LegalZoom vs. Hiring a Lawyer

When planning a will, many people assume that filling out a single document or form is enough to divide their property appropriately upon death. Unfortunately, this often results in unforeseen problems, such as beneficiaries contesting the will. At Massingill Attorneys & Counselors at Law, we are dedicated to helping clients protect their legacy and give their family peace of mind. Is LegalZoom Good for Wills? A LegalZoom Will Review While it may be tempting to use do-it-yourself solutions like LegalZoom to create a will, it often leads to unintended property distribution. To create an effective will, you need to take all possible life outcomes into consideration, including deaths, births, marriages, divorces, adoptions, and more. Websites like LegalZoom cannot tailor your will to your specific situation and only provide a generic, one-size-fits-all solution. For example, if you create a will with your wife as a beneficiary, what happens if she dies before you? LegalZoom cannot address these scenarios as thoroughly as an experienced estate planning attorney. Is a LegalZoom Will Valid? A LegalZoom will can be valid, but there are many circumstances that can make a will invalid. Without the assistance of an attorney, you are much more likely to make an error that invalidates the will or cause someone to challenge its validity. For a will to be valid, you can’t just fill out a form and put it in a drawer. It’s important to comply with legal formalities required by the state, such as signing the will and having it appropriately witnessed. LegalZoom won’t complete these steps for you. A LegalZoom will is also more likely to be subject to challenge. For example, imagine there are questions about whether the testator was mentally competent to sign. If an attorney prepared the will, they could attest to the testator’s mental capacity. But if the testator’s daughter just printed out the will and had them sign it, questions about mental capacity or undue influence could plague the probate proceedings. Important Elements of a Will That LegalZoom May Leave Out Even if your Will seems relatively straightforward, there are a few key parts of your document that LegalZoom won’t cover. Here are some of the essential parts LegalZoom might forget to include in your Will. Alternative Executors and Beneficiaries When filling out a will, the testator must choose an executor to carry out their wishes. In most cases, this is a spouse, child, or other close relative. However, if the primary executor dies or rejects their role, the probate court must appoint an administrator for the will. Each state has its own laws designating who may serve as an administrator if the testator doesn’t have an alternative executor. In addition, if a testator doesn’t name an alternative beneficiary in case the primary beneficiary cannot receive a gift, the probate court will distribute the gift according to state law. Witnesses In some states, a will requires the signature of the testator along with signatures from two or more witnesses. This means that the witnesses must be present when the testator signs their will and include the date and location of the signatures. While this may sound like a minor detail, some states will invalidate a will without this information. Conditional Gifts It isn’t uncommon for testators to leave a gift to a beneficiary with a request for them to meet certain criteria. Conditions allow you to control when your beneficiary receives their gift and how your beneficiary uses it. For example, if you want to leave your child a family heirloom, you can give it to them under the condition that they don’t sell it. This is a great way to ensure that your wishes are fulfilled. However, LegalZoom may not provide an option for you to customize your gifts in this way. Guardianship Nominations A guardianship nomination is often overlooked in a will, especially if the testator expects their spouse to take care of their children. However, this section helps identify a legal guardian for a minor child in case both parents die simultaneously. Why You Should Hire an Estate Planning Lawyer One of the major risks with using a service like LegalZoom is that they aren’t a law firm. This means that they cannot legally review your will for legal accuracy, provide advice for filling out your will, or apply the law to your specific situation. As a result, many people who use their service unknowingly create an invalid or incomplete will. If you want to create a will that minimizes the risk of legal disputes and carries out your wishes to the letter, hiring an estate planning attorney is your best bet. At Massingill Attorneys & Counselors at Law, our attorneys can help address your individual needs by making a comprehensive estate plan that covers every possible scenario. This includes identifying both primary and alternative beneficiaries, assigning legal guardians to a minor child, preparing detailed medical directives, and more. Need Help Planning for the Future? Estate planning isn’t easy to do alone, especially if you have unique circumstances or don’t know where to start. At Massingill Attorneys & Counselors at Law, we know that your will is an important investment in your legacy. Our goal is to tailor your will to your precise wishes and protect your family from potential legal issues. If you are ready to start the estate planning process or have questions about your existing will, call us at (512) 410-0343 to schedule a consultation. We proudly serve clients living in Cedar Park, Austin, and throughout the state of Texas.

Jul 30, 2021 | By Massingill Staff | Read Time: 4 minutes | Articles

Why You Should Consider Hiring an Estate Planning Attorney

When a person passes away or becomes incapacitated, there are issues regarding probate, finances, inheritance, and much more. Making sure that you leave your estate situated to carry out your wishes means that you must first hire an estate planning attorney. A Texas estate planning lawyer is able to explain the ins and outs of estate planning, hear your concerns, evaluate your estate as a whole, and then create a solid estate plan. The Role of an Estate Planning Attorney An estate planning lawyer is a lawyer whose practice focuses on probate, wills, trusts, and related issues. They know how to create documents in compliance with the multitude of complex laws that carry out their clients’ wishes. Trust and estate planning attorneys also know how to best protect the assets of their clients. The best Texas estate planning attorneys do not produce one-stop shopping plans; they create plans and documents specific to each individual client. The Need for an Estate Plan The word estate sometimes causes people to believe that an estate plan is meant solely for people with massive amounts of money and extensive real property. That is a fallacy. Every person needs an estate plan. At the very least, an estate plan will address: Creating a valid last will and testament that distributes your property the way you want, and Powers of attorney appointing someone of your choice to handle your medical and financial issues if you are able to do so. In other situations, a Texas estate planning attorney will address various trusts, complex clauses regarding specific bequests, and more. In all regards, the estate plan will address any tax implications regarding the estate. When to Hire an Estate Planning Attorney Once a person reaches the age of adulthood, they should hire an estate planning attorney. A friend, partner, or parent cannot carry out your wishes once you are gone unless you document them in a legally binding estate plan. Life can take unanticipated and tragic turns at any age, even young adulthood. The older we get, the more urgent it becomes to work with a Texas estate planning lawyer. Our wealth, relationships, health, assets, and overall finances become more complex over time. In addition, our need to protect what we care about most (children, partners, pets, charitable organizations, etc.) becomes more clear. Regardless of your situation or age, every person should hire an estate planning attorney to address your needs. As your situation in life changes, your estate planning attorneys can adapt the estate plan. How to Choose an Estate Planning Attorney You may initially feel at a bit of a loss in trying to find a Texas estate planning attorney. You may be wondering: Do I need an estate planning attorney near me? Can I use a general practice attorney? Is it risky to use an estate planning lawyer I have never heard of? In choosing an estate planning lawyer, it is imperative that you have an attorney in your state and ideally in reasonably close proximity to you. This is because an estate plan must comply with your state laws, and attorneys practice law specific to certain states. In addition, having a lawyer that is convenient to meet with is helpful. You also will need a lawyer whose practice focuses on estate planning. Laws relating to wills and estates are not only state-specific, but they also change at times. Lawyers who are experienced and specialize in this area will be aware of all of the nuances of estate planning laws. You don’t need to be concerned with whether you have heard of the lawyer. Look for a lawyer who does estate planning regularly and a firm with strong client reviews. What Questions to Ask an Estate Planning Attorney When you are looking for an estate planning lawyer, you want to make sure you find someone who will listen to you and help you accomplish your goals. You can find out if a lawyer is right for you by asking some of the following questions: How long have you been practicing law? How much of your practice is devoted to estate planning? Do you foresee any special complications with my circumstances? How will you communicate with me? You may also ask them to refer you to previous clients who can tell you more about their experience with the lawyer and what to expect. What Can Your Estate Planning Attorney Help You With? Your estate planning attorney can help you with all aspects of your estate plan, including: Identifying your beneficiaries; Determining how you want your property distributed; Implementing strategies to protect your property from creditors; Special considerations regarding businesses and joint property; Care for a minor child; Living, irrevocable or other trusts, if necessary; Protecting your assets from unnecessary taxes; and Preparing powers of attorney and medical directives. Your attorney should help you create a comprehensive estate plan that carries out your wishes and protects your assets. Online Template vs. Trust and Estate Planning Attorney Sometimes individuals make the mistake of trying to create their own estate plan with the help of online templates or random legal service online ‘shops.’ This is a mistake because templates and online sites: Do not always incorporate accurate and current laws; Often have question and answer forms that cannot catch and address every individual’s circumstance; Often do not provide clear rules for how to execute the documents, leaving them invalid; and Result in other individuals contesting them, because they are not backed by an attorney. Everyday individuals should not be expected to give themselves valid legal advice and create estate planning documents that meet all requirements of the law. You can avoid the errors that templates and online sites bring by hiring a Texas estate planning attorney. Massingill Attorneys & Counselors at Law At Massingill Attorneys & Counselors at Law, our lawyers are approachable and welcoming. We want our clients to trust that they can leave the critical details of legal advocacy to our legal team. With our clear...

Jul 6, 2021 | By Massingill Staff | Read Time: 3 minutes | Articles

What Makes a Will Valid in Texas?

All adults should have a will. Your Texas last will and testament allows you, rather than the state, to determine what should happen to your assets if you pass away. But if you do not follow Texas will requirements, the document will not be valid. What Are the Texas Will Requirements? To be binding and enforceable your will must meet Texas will requirements. For instance, Texas statutory law and case law required that to make a valid will in Texas: You have legal capacity, You have testamentary capacity, and You have testamentary intent. Let’s look at each of these requirements in terms of what they mean for Texas will requirements. Legal Capacity Legal capacity means that the court recognizes you as an adult at the time you made your will. This occurs in one of three ways. You have the legal capacity to make a will if you: Are at least 18 years old, Have been legally married (even if not 18), or Are a member of the US military. So long as you meet at least one of the criteria above, you are assumed to have the legal capacity to create a will under Texas will laws. Testamentary Capacity Texas will requirements state that you must be of sound mind when you make your will. This is different from legal capacity in that it is not addressing whether you are a legal adult but instead whether you have the mental ability to understand what it means to create your Texas last will and testament. The courts want to be sure that when you created a will, you understood things such as: What a will is and its impact; What your personal property is; Who your relatives are, and how they will be impacted by your will or lack thereof; and Who you want to give your assets to. Capacity is meant to protect those who may not understand Texas wills from having others take advantage of them to control their estate. Testamentary Intent At the time you sign your will, are you intending fully and truly to make a legally binding document of a Texas last will and testament? If yes, you have met Texas will requirements regarding testamentary intent. However, if you are making the will as a joke, for instance, then the courts of Texas will find a lack of testamentary intent. Other Legal Requirements Capacity and intent are vital aspects of Texas will requirements. There are, however, additional Texas laws to be aware of. For instance, a will must be in writing. There are options for handwritten and typewritten wills. In addition, there are rules relating to signatures and witnesses. Courts will scrutinize every aspect of a will before declaring it valid. Using a Texas Will Template: Beware If you use a Texas will template, you are at great risk of failing to meet Texas will requirements. Individuals often end up with templates that are not up to date legally or executed properly. If this happens to you when you pass away, your loved ones will be left with a last will and testament Texas courts will not honor. Attorneys Specializing in Wills in Texas To create a document that meets all Texas requirements, work with a law firm with expertise in estate planning. A Texas attorney who concentrates their practice on wills, trust, and estates can ensure that: You have a good analysis of your estate, upon which to create your will; You have a legal professional to answer all your questions during the process; You have a relationship with that attorney, who can later update your will as needed; and, most importantly, You have a Texas last will and testament that fully meets all Texas will requirements. Creating a valid will in Texas is a complex process for someone who does not specialize in this area. Those who create a last will and testament must execute all Texas will laws to a T. Remove the stress and uncertainty of this process by working with a law firm that continually receives rave reviews. Then, you can focus on making sure your wishes are known, while they make sure you end up with a legally valid Texas last will and testament. Massingill Attorneys & Counselors at Law: We Make It Simple Massingill Attorneys & Counselors at Law specializes in meeting the legal needs of Texas residents. Because of our flat fees, collaborative nature, and trusted legal excellence, we continually maintain a 5-star rating by clients. Call us today at 512-410-0343 or book an appointment online. We offer video, phone, and in-person consultations and make it easy for you.

Jul 6, 2021 | By Massingill Staff | Read Time: 3 minutes | Articles

FAQs: Living Trusts in Texas

When it comes to estate planning, most people have heard of a last will and testament. While this is certainly a popular option for handling one’s estate, it is by no means the only option. In fact, a comprehensive estate plan will likely include both a will and a trust. What Is a Texas Living Trust? Broadly speaking, a trust is a legal entity organized to control your assets. A revocable living trust in Texas is a specific kind of trust that allows you to retain control of the assets you place into the trust while you’re still alive. Living trusts are a flexible option for managing your estate because you control which assets to put into it. For example, you could decide to transfer the title of your home and car to your trust. From that point on, the trust would own your house and car. Who Manages a Trust? When you set up a living trust as the grantor, you designate both trustees and beneficiaries. You can designate the same person as both a beneficiary and a trustee, and you can even name yourself as a trustee and beneficiary. Ultimately, the trustees are responsible for administering the trust for the benefit of the beneficiaries. They do this by following the instructions you set out in the trust formation documents. A Texas family trust is a popular option where only family members are listed as beneficiaries. What Is the Cost of a Revocable Living Trust in Texas? The cost of establishing a living trust will depend on a number of factors, including: The complexity of your estate and the number of assets you want to transfer into the trust; Whether the trust includes a spouse or significant other; and Whether you hire an attorney. It is possible to set up your own Texas living trust using an online service. However, doing so does come with some risks since you can’t take advantage of the experience of an estate planning attorney if you have questions. What Is a Revocable vs. Irrevocable Living Trust? A living trust in Texas can be either revocable or irrevocable. A revocable living trust gives the grantor the ability to modify the trust at any time. By contrast, an irrevocable living trust can only be modified with the consent of the beneficiaries. Living Trust vs. Will in Texas? While both wills and trusts provide for the disposition of your property, there is one major difference. Where a will is only effective after you die, a living trust becomes effective as soon as you transfer property into it. You can also make changes to your living trust while you are alive. What Are the Benefits of a Living Trust? Privacy is a major benefit of a living trust. The process of administering a will, called probate, is available in the public record. A trust, on the other hand, remains private. Revocable living trusts in Texas are also much more flexible and do not require all of the same formalities associated with changing and executing a will. Contact an Estate Planning Lawyer Setting up a will and trust is just one part of a complete estate plan. Massingill Attorneys and Counselors at Law offers flat-fee pricing on our will or trust-based estate plans. We will work with you to develop the best estate plan for your needs. Contact us today online or at 512-410-0343 to book a free consultation.

Jun 17, 2021 | By Massingill Staff | Read Time: 6 minutes | Estate Planning

Why Estate Planning Is Important in Texas

Many think that estate planning is only for the ultra-wealthy, but that is simply not the case. If you have assets, you have an estate. If you have an estate, you need a plan. For assistance, please don’t hesitate to contact our Texas estate planning attorneys by sending us a message or calling (512) 410-0343 today. Below we will explain why estate planning is important in Texas. What Is an Estate Plan? An estate plan is a set of documents that directs others on managing your assets during your lifetime and at death. Part of estate planning includes developing instructions on your financial and medical care if you are unable to make those decisions. Your estate plan may comprise a combination of the following documents: Last will and testament, Advance power of attorney, Living will, Medical power of attorney, and Trusts. At Massingill Attorneys & Counselors at Law, our goal is to make sure your intentions are clearly defined in your estate plan. We achieve this by incorporating multiple document types. Last Will and Testament A will is your final chance to speak. This legal document communicates your wishes and instructs your executor on how to distribute your assets. Your will is only effective once you die, and only assets solely in your name (also known as probate assets) are subject to the terms of your will. With this document, you can do the following: Gift specific property, cash, or other assets; Appoint your executor; and Designate a guardian for any minor or disabled child. Texas has its own unique requirements for a will to be valid. That is why it is advantageous to consult with an attorney to assist you in creating your will. Financial Power of Attorney A power of attorney is a document that authorizes another person to manage your financial affairs on your behalf. There are several types of powers of attorney that are available based on your needs and goals. Powers of attorney can be broad or limited in scope and can take effect immediately or when a certain event occurs, such as incapacity. A financial power of attorney can help protect you from financial abuse if you become incapacitated. Texas has a statutory form available, but it is best to speak with an attorney to fully understand the implications of the document before you sign. Living Will A living will, also known as an advance medical directive, provides end-of-life instructions. This document is meant to prevent confusion or disagreement among your family and health care providers with respect to how you want to be treated before you die. Typically, you would decide on the use of artificial hydration and nutrition, the use of breathing machines, whether you want to be resuscitated, and whether you want to be an organ/tissue donor. Medical Power of Attorney A Texas medical power of attorney allows you to appoint an agent to make health care decisions for you if you are unable to do so. Since the term “health care” includes a broad range of medical services, you may limit the agent’s power to only certain medical decisions. The document only goes into effect when a physician certifies that you lack the competence to make health care decisions. The health care professional must follow your agent’s instructions. Trusts Trusts are used for many reasons, but most commonly to pass assets to beneficiaries outside the probate process and protect against creditors. Trusts come in a variety of types, including living trusts, testamentary trusts, Medicaid trusts, charitable trusts, special needs trusts, and life insurance trusts. These estate planning vehicles are attractive because the beneficiaries typically get their inheritance quicker and cheaper than through a will. With proper use, trusts can also provide certain tax advantages to both the testator (the creator of the trust) and the beneficiary. Why Do I Need an Estate Plan? Estate planning is important for many reasons, from protecting your hard-earned assets to providing for your family and minimizing taxes. Peace of Mind Planning for your death may seem like a morbid task. It is. Discussing how you want to die and who should get your car may not be fun, but it is rewarding. Knowing you are making sound decisions about your assets and providing for your family should bring you and your loved ones peace of mind. Tackle the tough questions and decisions now, so your family is not left scrambling, during an already difficult time, to figure out what to do with your estate. Protect Your Assets Without an estate plan, you and your assets are not protected. You have worked hard for what you have, so take the time to shelter it from creditors, greedy family members, or divorce proceedings. As mentioned above, estate planning is both important and effective during your lifetime. The use of medical and financial powers of attorney can protect yourself and your assets from abuse. By incorporating wills and trusts into your estate plan, you continue to provide protection even after your death. Ensure Your Assets Go to the Intended Beneficiaries If you do not write your own will, Texas will do that for you. Under Texas intestate succession laws, your probate assets go to your closest living relatives. This highlights the importance of estate planning since your assets could pass to someone you may not want them to. Depending on who is surviving at your death, Texas will distribute your estate as follows: If children survive, but not a spouse, then children inherit; If a spouse survives, but no children, parents, or siblings, then the spouse inherits; If parents survive, but no children, spouse, or siblings, then parents inherit; and If siblings survive, but no children, spouse or parents, then siblings inherit. The rules become more complicated when you have blended families or a mix of surviving parents, children, and siblings. There are several ways to avoid this type of distribution, such as executing a will, transferring your assets into a trust, or jointly owning property. Avoid...

Jun 8, 2021 | By Massingill Staff | 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, probate is a lawsuit filed against yourself after you die – paid for with your own money – for the benefit of your creditors. If you have any questions after reading this article, contact our experienced Texas estate planning attorneys today to schedule a free consultation. 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 DOLLARS IN UNCLAIMED PROPERTY IS HELD BY THE STATE How did that money get there? When a person dies, their family is often unaware that they owned an insurance policy, real estate parcel, or bank account, and when it’s not claimed after a 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 website. 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 Probate 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. CONTACT MASSINGILL ATTORNEYS & COUNSELORS AT LAW TODAY To learn more about probate, visit the estate planning section of our website. If you have questions about your particular situation the experienced legal team at Massingill Attorneys & Counselors at Law is here to help. Contact us today to schedule a free consultation

Apr 22, 2021 | By Massingill Staff | Read Time: 4 minutes | Estate Planning

When to Start Your Estate Planning (in Texas)

If you have lost a loved one before, you know just how difficult it can be to manage their estate and affairs in the aftermath of their passing. Matters can become even more complicated if your loved one did not leave behind a comprehensive estate plan. Everyone will die some day—this is just an unavoidable fact of life. And while you may not necessarily want to think about this, it is important to do so sooner rather than later. But exactly when should you start estate planning for yourself? The short answer is that it is never too early to get started on creating your estate plan. At Massingill Attorneys & Counselors at Law, we know just how important it is to have a comprehensive estate plan in place that is created with your particular needs in mind. If you have questions about when to start your estate planning and how to get started when you are ready, give our estate planning attorneys a call today. Common Estate Planning Questions Before getting into when you should start your estate planning, it is important to have a general understanding of what an estate plan is and when yours will come into play. Most people have heard of the term “estate planning” at some point or another. But if you don’t know exactly what that means in a practical sense, don’t worry—you are not alone. In fact, there are many misconceptions about what constitutes an estate plan and when you might need one. Below are some commonly asked estate planning questions to help guide you through the beginning stages of creating your own estate plan. What Documents Are Typically Included in an Estate Plan? Many people believe that creating an estate plan is synonymous with creating a will. However, this is not necessarily the case. A last will and testament is certainly an important estate planning document. However, a comprehensive estate plan will contain additional documents as well. Below are some examples of documents that you might want to consider including in your estate plan: Last will and testament, Revocable living trust, Pour-over will, Financial power of attorney, Medical power of attorney, Directive to physicians, HIPAA waiver, Final disposition instructions, and Guardianship nominations for minor children (if applicable). A comprehensive estate plan will go over more than just who you wish to leave your assets to after your passing. Contact our Texas estate planning attorneys today to discuss what estate planning documents are right for your unique circumstances. Why Do I Need an Estate Plan? Of course, one of the primary reasons people create an estate plan is to better ensure that their property and assets end up where they belong. But there is more to estate planning than just distribution of assets after your passing. Who will manage my finances if I become incapacitated but am still alive? How do I let my loved ones know my end-of-life decisions? Who do I designate to make medical decisions on my behalf in the event I am unable to make such decisions for myself? These are questions that will often be addressed in a comprehensive estate plan. So, why do you need an estate plan? There are a number of valuable reasons: Clearly delineate your intentions regarding the distribution of your assets after your passing; Sleep easier knowing that you have organized your affairs for the future; Better protect the people you love; Avoid potential legal disputes that may otherwise arise without an estate plan in place; and Give your family peace of mind. When someone passes away, it is always most difficult on their loved ones. And when someone dies without an estate plan in place, this nearly always results in a more complicated, time-consuming, and emotionally draining process for their loved ones. No person knows your wishes better than you do. Thus, protect your legacy and your loved ones by making sure you have all the necessary documents in place for your estate plan. Do I Need to Hire an Attorney to Create My Estate Plan? Of course, there is no legal requirement in Texas stating that you must have your estate planning documents drafted by an attorney. In fact, Texas law specifically permits what are called “holographic,” or handwritten, wills. Nevertheless, wills and other estate planning documents are legal documents. Thus, there are many additional laws and best practices surrounding their drafting and execution. In an effort to ensure that all your documents are legally binding and enforceable, it is best to have an estate planning professional draft your documents and guide you through the process. Many people mistakenly believe that they cannot afford to hire an attorney to draft their estate planning documents. In reality, you cannot afford not to. At Massingill Attorneys & Counselors at Law, we want to make estate planning documents as accessible as possible. That’s why we offer affordable pricing and flat fees for both will-based and trust-based estate planning packages. So When Should You Start Estate Planning? Don’t wait—get started on your estate planning today. This life is precious. And as cliché as it may sound, it is also uncertain and can change in an instant. Thus, it is never too early to start getting your affairs in order. People frequently believe that estate planning is reserved for the elderly, but this is not the case at all. All adults should have an estate plan in place, no matter their age or stage of life. So if you are wondering whether it’s time to start estate planning, the answer is yes! It is best to do so as soon as possible just to be safe. Your Austin, TX Estate Planning Attorneys If you are searching for a Texas estate planning firm who will provide you with unparalleled services and attention, look no further than Massingill Attorneys & Counselors at Law. Legal documents are complex, but we make it simple. Based in Austin, TX, our firm has helped countless clients achieve the peace of mind that comes with creating a comprehensive estate plan. Your family is unique—your estate planning...

Aug 23, 2016 | By Massingill Staff | Read Time: 2 minutes | Estate Planning

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.