Estate Planning

Don't Lose the Original Will Wills only take legal effect when the person who made the will dies and the will is admitted to probate. Probate is a legal process where a court hears evidence to prove that the will is valid and should be given legal effect.  Normally this requires that the original will ( not a copy) be filed with the clerk of the court. Most wills are self-authenticating,...

Unfortunate fact: your debts do not die with you.  They continue to burden your property after your death.   This is a big deal.  Your creditors can go after the property that goes through your probate estate and the property that passes under beneficiary designation.  It is fair to say that your beneficiaries or heirs take their share of your property under the threat that it may be pulled back by a...

Most people have a general idea that they “should” have a Will, but do they really understand what happens if they don’t? One of the biggest difficulties that can arise when someone dies without a Will is that the State of Texas decides who gets your “stuff.”  This may or may not be where you actually want your property to go.  If someone dies married, and there are no children...

Are you married? Amazingly, a lot of people cannot correctly answer that question. In Texas, you can be married formally or informally.  The formal way is when you sign a written declaration of marriage.  The informal way, also known as a common-law marriage, is when you and another person agree to be married, thereafter live together in Texas as spouses, and represent to others that you are married. The formal method is...

Texas offers its residents several favorable benefits. We do not have an individual income tax, we do not impose an estate or inheritance tax, and we provide extremely generous protection to individuals from creditor claims. To share in this good fortune, you just have to be domiciled within our state.  “Domicile” is a legal term.   It means that you have a true fixed and permanent home and principal establishment in Texas. ...

Cremations are hot, but a recent decision by the Texas Supreme Court may have a chilling effect on the popular funerary choice. In 2016, for the first time in U.S. history, cremations accounted for more than 50 percent of funerals. Some experts estimate that the cremation rate will reach 78.8 percent nationwide by 2035. So what did the Texas Supreme Court do that could dent the increasing cremation market? Here’s a hint:...

  Here is how to lose your grandmother's 4.15 carat marquise cut diamond ring to your former wife. First, when your grandmother dies, become the administrator of her estate. Second, pull your grandmother’s very valuable diamond ring from the custodian account in a New York bank and have it sent to you. Do this even though you have not settled the entire estate, and you are not the only beneficiary entitled to...

Ever wonder what will happen to your Facebook account when you die? Here is your answer: TRUFADAA. It stands for Texas Revised Uniform Fiduciary Access to Digital Assets Act, which is found in Chapter 2001 of the Texas Estates Code and sets out the scheme for handling digital assets when a person dies or becomes incapacitated. TRUFADAA replaced the original Uniform Fiduciary Access to Digital Access Act, an unfortunate experiment...

The Texas law of descent and distribution is a bit complex so, just for fun, let’s kill off Bob, an imaginary person who lacked the foresight to have a will, and see how the law applies to his estate. If you are reluctant to play the game, just remember that you could be personally touched by the law if you live in Texas, have relatives in Texas, or have...

Cue the jokes: in Texas, perpetual care cemeteries are supervised by the Texas Department of Banking. The Department of Banking also supervises prepaid funeral contract sellers and cemetery brokers and (presumably in its spare time) trust companies and state-chartered banks. There are two types of cemeteries in Texas: perpetual care and non-perpetual care. The owners of a perpetual care cemetery have a duty to keep up the place – that...

For many, many years  –  from the stone age through 2011, to be exact  –  attorneys in Texas regularly recommended trusts to their clients as a way to minimize or avoid estate taxes. A lot of clients heeded the siren song, and hundreds, nay, thousands, of trusts were formed. The trust documents were sent home with the clients, who, naturally, put them away in very safe and secret places. So...

Little known laws are the light of a litigator’s life. Example: the law of cemetery plots. The right to be buried in a certain plot is known as “the exclusive right of sepulture.” The right is usually conveyed to the person via a certificate of ownership, although that is not the only way it may be conveyed. A plot may hold contain more than one grave, niche or crypt. A cemetery plot isn’t treated like...