The Texas Homestead

Texas and Florida may be the two best places to live if you owe money. Both states have laws that exempt a significant amount of property from seizure by creditors. For instance, when our Texas forefathers were drafting our state constitution, they felt homestead protection was important to the preservation of the family.

What (and Who) is a Fiduciary?

There are common threads running through all of the various matters that come across my desk. One of them is the concept of fiduciary duty. In virtually every case in my office, I have at least one conversation with a client on the topic. So, I thought it worthwhile to spend some time discussing what it means to be a fiduciary.

What it Means to be a Fiduciary

A few years back Fred had agreed to look after his mother's finances if she ever needed help. She had put him on her bank accounts and signed a power of attorney naming Fred her agent. Now she was in the nursing home and could no longer make decisions for herself.

How do you choose a lawyer?

When looking for the right lawyer, first and foremost you should try to find one upon whom you can rely. Why pay money to any professional for advice that will be ignored? Usually the best way to find a lawyer is to ask for a personal referral from someone you trust.

Things to consider in making gifts to a minor

If you want to name a minor as a beneficiary of your will, life insurance or retirement account, provide for a trustee to receive the money for that child’s benefit. A minor lacks the legal capacity to sign a binding release, so theoretically that minor could receive the money, spend it all and then sue the executor for being stupid enough to have handed it over in the first place.

How do you handle non-probate assets like insurance and IRAs?

A will has no effect on a life insurance policy, IRA, 401(k), or any other “non-probate asset” for which you have executed a proper beneficiary designation. You can even tell your bank how to pay out your account when you die.

If you fail to designate a beneficiary, however, then that asset will pay to your estate.

Did decedent own land outside of Texas?

If the decedent was a resident of Texas, then the Texas probate courts have jurisdiction over the real estate decedent owned in Texas and everything else decedent owned regardless of where it is located. Put another way, Texas courts have no jurisdiction over real estate in another state.

What if decedent owed money?

The decedent's debts must be settled before property is distributed. If you have a claim against a decedent’s estate, it is important that you present that claim correctly and in a timely manner.

An independent executor simply steps into the shoes of the decedent, so a creditor can usually just send the bill to the executor.

Should probate be avoided?

Probate in Texas does not have to be long and expensive, yet fear of its costs drives many to plan ways to avoid it. Some people execute trusts into which they transfer everything they own so that, when they die, there will be no need to probate their estate.

Who inherits when there is no will?

When the testator leaves a will, those who receive the property are known as “beneficiaries.” If the decedent died intestate, all property passes to the “heirs.” So, when there is no will, who gets what?

To answer the question, you must first know if the decedent was married.