To Probate, or Not to Probate….

Last-Will-Test

Probate court proceedings (during which a deceased person’s assets are transferred to the people who inherit them) can be long, costly, and confusing. In addition to dealing with the loss of a loved one, the added stress of probate proceedings leads good planners to find other ways to transfer the assets.

There are several ways to avoid probate in Texas.

  1.  Living trusts You can make a living trust to avoid probate for virtually any asset you own — real estate, bank accounts, vehicles, and so on. You need to create a trust document (it’s similar to a will), naming someone to take over as trustee after your death (called a successor trustee). Then — and this is crucial — you must transfer ownership of your property to yourself as the trustee of the trust. Once all that’s done, the property will be controlled by the terms of the trust. At your death, your successor trustee will be able to transfer it to the trust beneficiaries without probate court proceedings.
  2. Transfer-on-death deeds for real estateBeginning September 1, 2015, Texas allows you to leave real estate with transfer-on-death deeds. These deeds are sometimes called beneficiary deeds. You sign and record the deed now,but it doesn’t take effect until your death. You can revoke the deed or sell the property at any time; the beneficiary you name on the deed has no rights until your death.
  3.  Joint ownership If you own property jointly with someone else, and this ownership includes the “right of survivorship,” then the surviving owner automatically owns the property when the other owner dies. No probate will be necessary to transfer the property, although of course it will take some paperwork to show that title to the property is held solely by the surviving owner.

    4. Special provisions for small estates.  Probate can be avoided with the use of an affidavit of heirship or a small estate affidavit, if the bulk of the estate includes the decedent’s homestead and other assets of less than $50,000.00 value.

Consult an estate planning attorney for more information.

This document does not constitute legal advice. It is to be used for descriptive purposes only. Please seek the advice of a competent lawyer in your state.

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Irrevocable Living Trusts as a Solution to Long-term Care Costs

If you, or a family member, does not qualify for long term care insurance, but discover the need for long term or nursing home care for the individual, how can you protect your family’s assets from being depleted by paying for long term care?

If you want to shield your estate from the costs of a nursing home or other potential creditor, you may form and fund an irrevocable trust with those assets or property.   This involves naming someone else to act as trustee of the property. Ownership of the property is transferred to the Trust, and the Trustee is obligated to protect and preserve the assets, per instructions contained in the Trust, and to pay out income from the Trust to Beneficiaries you designate in the Trust. Because you no longer own the assets, they cannot be used to pay costs of nursing home care, and cannot be attached by creditors to satisfy your debts.

The catch is, for this type of protection, the trust must be irrevocable – you can’t change your mind and take your property back after you move it into the trust’s ownership. Your ownership of your property is severed so a nursing home can’t expect you to use these assets to pay for your care — they’re not yours any longer.

Moving your property into such a trust allows you to qualify for Medicaid. When you make the transfer of property, you effectively deplete your estate of disposable assets. This doesn’t have to leave you bereft — the trust can provide you with income produced from the assets it holds. (*Also subject to Medicaid Limits.) But – trust income can be paid as reimbursement of family members, for payments made by them for your care.

The other catch is that Medicaid has a five-year “look back” period that can put you in a bit of a bind if you’ve moved your countable assets into an irrevocable trust and can’t get them back. You cannot qualify for Medicaid for five (5) years after you transfer your property into the trust. If you transfer assets, then need long-term care four years and 11 months later, you’re within this look-back period — and you may not be looking at just a month of ineligibility until you reach five years. How long you’re ineligible depends on the value of the property you placed in trust and the average monthly cost of nursing home care in your state. If the average monthly cost is $5,000, the government divides the value of your transferred property by this number. If you moved $100,000 in assets, this comes out to 20, so you’d be ineligible for Medicaid for 20 months — almost two years. Meanwhile, you can’t get your property back to pay for your care during this time.

Bottom line – It’s a good idea to consult with a lawyer to explore all your options before you take such a permanent step.

This document does not constitute legal advice. It is to be used for descriptive purposes only. Please seek the advice of a competent lawyer in your state.

 

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Families with Special Needs Children

Planning for the transition to adulthood and beyond.

Do you know a family with a special needs child? As the child grows into the teenage years and adulthood, many parents are concerned about how they will protect the child from financial, physical, and legal harm as they turn 18 years old and “age-up” into legal adulthood.

There are several different paths that can be taken to protect the young adult,  taking into account the child’s own needs and capabilities, and the family’s resources. Some of the protections include:

  • Guardianship – parents or adult siblings may need to maintain decision-making responsibility.
  • Alternatives to guardianship, including “Supported Decision Making Plans.”
  • Special Needs Trust – to protect SSI or Medicaid benefits while allowing for funding for future needs and protection of family assets.
  • Powers of Attorney – Durable and Medical.
  • Designation of guardians or substitute guardians in case of future disability.

Families are advised to begin the planning for their child’s future early, at least by age 17 ½ , in order to prevent gaps in the child’s legal protections.

This article does not constitute legal advice. It is to be used for descriptive purposes only. Please seek the advice of a competent lawyer in your state.

 

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What is an Executor of a will, and what are the duties of an Executor?

Clients often ask, “do I need to appoint an Executor in my will?”, and “what does the executor need to do?”  Appointing an Independent Executor in your Will is very important.  This will be the person who carries out your wishes for the payment of your final debts, and distribution of your estate.  This should definitely be someone you trust, and who will be responsible with your estate. The duties of your executor can vary depending on the complexity of your estate. Overall, the executor will manage your estate and ensure that everything is done according to the terms of your will.

Here are a few of the duties of an executor:

Protect Property and Pay Outstanding Debts

Make an Inventory of all property of the Estate

Estimate the Value of the Estate

Distribute the property according to the terms of the will

The main reason for having an executor is to facilitate the distribution of estate property to beneficiaries as efficiently as possible. To accomplish this, an executor may need to locate beneficiaries that haven’t come forward and supervise the distribution of all money and property in the manner outlined in the will. When all property has been distributed, the job of the executor is done, and the probate estate may be closed.

For more information contact a Probate attorney or Estate Attorney

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What will happen to your family if you die or become disabled?

Source: What will happen to your family if you die or become disabled?

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Rights of Grandparents and other relatives

 

GRANDPARENTS’ AND OTHER RELATIVES’ RIGHTS
Sometimes the road less traveled is the one that is right for a child. We might wish that all children could grow up in the home of their biological mother and father, but that is not the reality of our world, nor is it always in the child’s best interest.
If you are the grandparent or other relative of a child whose biological parents are unable to care for the child properly, I can help you get that child’s life back on track. Contact my Sugar Land, Texas, office at http://www.mmconnollylaw.com to discuss your personal situation.
Know the Rights of Grandparents, Aunts, Uncles and Stepparents in Texas
Whether your main concern is rescuing a child from an unsafe environment, helping him or her develop in a positive and healthy way, gaining visitation or seeking termination of parental rights for an adoption, an experienced Sugar Land family law attorney like me can provide you with valuable guidance throughout the process.

My interest in cases like these dates back to the first one I handled. In that case, a grandmother had her daughter’s children to raise most of the time, but the mother would come back to get the children whenever her child support money was taken away. The grandmother had no legal rights to hold onto the children until we worked through all the legal issues to allow her to become her court-ordered conservator, receive the child support, enroll them in school and take care of their medical needs.

The sense of truly helping her, of keeping children with a family member and out of the foster-care system, was so rewarding that I have made a special study of non-parent adoption, grandparents’ rights, relatives’ rights and kinship care.

If you are concerned about the well-being of a child in your extended family, or a non-related child who has been living with you for an extended time, contact me to learn your rights and the actions you can take to protect, visit or adopt that child.

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Keys to Surviving Divorce

Going through a divorce can be a difficult time. Here are some tips to help you get the best result possible, while maintaining your sanity.

1.    Complete a thorough inventory of your assets and your needs

    Taking accurate inventory of your assets and their most current valuations is crucial in achieving a favorable outcome. Knowledge is power when negotiating the finances of your divorce. The inventory should include every asset you own from the cars to the retirement accounts to future pensions and social security payouts at a future age for you and your spouse. You should also make copies of all tax returns over the past 3 years. These returns can help explain a lot more than your income and taxes paid; they can help find potentially hidden assets, dividends, capital gains, depreciation, and business expenses.

          2.  Get your emotions out with your support group – not your lawyer

           The more emotional you are, the more costly your divorce could be. If you spend hours (or minutes) talking to your lawyer as if he/she was a therapist – the more costly your divorce will be and the less likely you are to be taken seriously. Think about your divorce as a business negotiation. You are hurt and angry, yes, but you are also negotiating your financial future. Vent outside the lawyer’s office so you can enter negotiations with a business mind set.

      3.  Settle out of court if at all possible.

      You may be forced to go to mediation before court. This is an excellent opportunity to curb costs and prevent a very lengthy, expensive war. Prior to mediation, know what you really want to keep, what you are willing to give up and then be prepared to spend the day giving and taking. In mediation, the divorcing parties have 100% control over how things will be settled, assuming they can come to an agreement. If your case goes beyond initial mediation, the costs could skyrocket. Do not let your pride and emotions hurt you financially by holding out on one or two issues that may seem paramount at the time. Consider this – can what I want to keep be replaced with a new version of the item with the money I’ll save by ending this now?

             4.  Ask for help.

        Divorce is expensive.  Maintaining a household as a single parent is obviously more expensive than a 2    income household. It’s okay to ask for help during this time of transition. Rely on friends and family for the extra support someone going through this process needs. This will help you keep your emotions out of the courtroom, the attorney’s office and out of your personal business dealings. It’s easy to let your emotions take over and talk about your divorce to anyone who will listen. This is not always wise. Use your friends and family during this time. If you do not have a network of friends or family close by, your local church may have a divorce recovery or divorce care group which can be very helpful.

      5.  Don’t forget your spouse’s employer benefits and plans

It’s important to know what your spouse is entitled to as you negotiate your financial future. Contact the Human Resources Department at your spouse’s employer and ask about any and all benefits. As a spouse, you are entitled to know about current and future benefits; be sure to ask if there’s a pension plan in place. Review your last two or three tax returns, which will list any interest earnings, dividends, or capital gains that were reported. By comparing the financial affidavit to the tax return, you can reconcile assets and look for omission.

       6.  Consider taking a one time, penalty-free 401k distribution during divorce.

Many people don’t realize each spouse, no matter what age, can take a one time, penalty free distribution out of a spouses 401k during the divorce process. You must take this distribution directly from the 401k – it’s not available from IRA’s without the 10% penalty. For example, if you want money to put down on a new home, you can take a one-time lump sum distribution from your soon to be ex-spouses 401k penalty-free to do this.

Beware of emotional attachment to your marital home.  The marital home and the retirement plans are likely to be the largest assets in your marriage. Many people – especially women – have such an emotional attachment to the marital home that they cannot imagine life in another house. However, the house comes with a mortgage, taxes, maintenance and repair bills.  A pension does not. It’s important to consider the type of assets you are getting rather than just achieving a 50/50 split. .

        7.  Identify and focus on what’s really important

We all have a finite amount of financial and emotional capital. It’s wise to spend yours in areas that are really important to you. By clearly articulating your needs and goals, you will expend less time, money, and emotional capital over the small stuff. Clarify the issues that are most important to you and focus only there.

           8. Avoid the gray areas & look down the road.

Gray areas in your divorce decree can lead to conflict in the future. This conflict hurts everyone – especially children. Plan for your children’s contingencies today to avoid conflict in the future. Who will pay for college? Who will buy the car when the kids can drive? Who will pay for insurance? How many extra-curricular activities will your child/children be involved in, and who will pay for these activities? Look at holidays – do you want to add Halloween or Easter to the holiday rotation? Is there a large family event annually which you want to establish rights to? Consider all your life events, and establish guidelines for possession of the children for those events as clearly as possible today to avoid conflict in the future.

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