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Dallas Estate Planning Law Blog

Estate planning requires regular updating of the basic documents

Wills and living trusts should be updated to reflect changes in one's life as those events occur. When the person marries, or one's spouse dies, or when there is a divorce, such events create the need to revisit one's estate planning documents to make revisions. For example, if there is a divorce but the person who made a will during the marriage forgets to go back and revise it, the divorced spouse could potentially have a continuing interest in the maker's estate under Texas law and the law of other states.

In most instances, that last scenario is the opposite of what the maker of the will wanted to see happen. Therefore, it is best to always make sure one has a good, updated set of estate planning documents in effect whenever a major life change occurs. A few other life changes that require such action are birth of a child, marriage, sale of a business, death of a child, and moving to another state.

Will contest results in rejection of will presented for probate

Probate of a will in Texas may lead to a will contest when the will is challenged by those who believe that they have a better right to collect from the decedent's estate. A will contest is often based on a claim of undue influence, which asserts that the beneficiary took advantage of a position of power over the person to get that individual to consent to disposing of property in a way that was not a product of a free exercise of his or her own will. The presentation of the will for probate is the appropriate time to challenge its validity.

If the person has dementia at the time of the making of the will, it is not absolutely certain that the will does not reflect largely the person's intentions. That is because people with dementia are known to have lucid periods. Therefore, where a prima facie showing of undue influence is made, the one who is supporting the probate of the will must prove that there was no undue influence.

Estate planning considerations arise when child reaches 18

When a child living at home turns 18, under Texas law and elsewhere, there is a change in legal status from being a minor to an adult for most purposes. For the parents, the child may still seem to be as dependent as before, but the new legal status will require some adjustments. In the area of estate planning, the new adult will be well advised to take some steps to provide some planning protections.

For example, a durable power of attorney should  be put in place because anyone is subject to becoming incapacitated due to sudden illness or accidental causes. With the young adult still living at home, it may be desirable for one or both parents to be able to sign the child's name to legal documents and necessary transactions in the event of temporary or permanent incapacity. This is a relatively inexpensive tool that can save one's estate time and money in the unpredictable future.

Putting off estate planning can cause big problems in future

Procrastinating over estate and long-term planning can cause immeasurable confusion and suffering to a person and his or her heirs in the event of one's incapacitation or passing. It is easy to see why preparing for one's end of days may be a frightful subject for some. Nonetheless, ignoring the task will only lead to future problems. The basic documents of estate planning are generally the same from state to state, including Texas, and an experienced estate planning attorney will work closely with financial advisers and with the client to keep the process as painless and engaging as possible.  

A will is often considered to be the bedrock document of an estate plan. However, that is only true if there are assets owned by the testator that must be distributed at death. If all of a person's assets are owned jointly with a spouse, as husband and wife, then the property does not go through the person's estate at death; instead, the laws of survivorship will cause the jointly-owned asset to pass to the surviving spouse automatically by operation of law.

Ignoring long-term care planning may result in future crisis

There may be a crisis brewing here in Texas and throughout the country based on statistics that indicate that a large majority of people are letting the task of long-term care go to the proverbial wayside. The potential crisis is suggested by statistics that say that most people approaching retirement today will need long-term care planning in the future. This means that a great majority of retired persons are going to need vital life-saving services in the future; unfortunately, a great majority of them are apparently doing nothing about it.

Indeed, it is commonly suggested that 97 percent of people will need long-term care services during their lifetime. Although that may be an exaggerated figure, it is nonetheless advisable for those potentially affected persons and their families to see these statistics as sounding an ominous warning. According to experts in the field, ignoring long-term care planning may result in one becoming a statistic who is suffering the consequences of not having planned in advance.

Boomers look to estate planning as they approach age 70

For residents of Texas and elsewhere, taking care of one's retirement years in advance is often a task that is put off until tomorrow. However, each tomorrow brings one closer to those years where he or she will start to relax more, and begin to progressively wind down the activity levels due to age, health and natural evolution. For the early-born baby boomers, they must now say hello to the beginning of an eighth decade of life. Being 70 may be a great eye-opener for estate planning purposes, as one looks back on all of the joys and battles and concludes with some deserving pride that indeed he or she can be rightly called a survivor.

It is not a time for fretting about old age -- indeed, statistics today give a person more than a 50 percent chance to reach 85, which is much better than their grandparents, who had only a 28 percent chance. Now, in fact, more than one in 10 boomers will reach age 95. Do not forget, furthermore, that that percentage may be substantially improved by scientific advances in the next several years.

Plan now with a will, powers of attorney, trusts and directives

Statistics applicable to Texas and nationwide say that only half of the Baby Boomers generation have made a will. In that respect, many of us have to admit that we are sometimes "penny-wise and pound-poor." Thus, saving the relatively modest expenses of preparing an estate plan and making a will can possibly result in unwanted consequences to our heirs.

Furthermore, there are other obstacles even more daunting than the relatively minimal expense. There is the old reliable obstacle, procrastination, and the dark void, called 'lack of incentive,' that also may prevent us from doing what common sense tells us to do. In the matter of preparing trusts, a will and various directives to our representative, it is far better to focus and to do it, rather than finding oneself without those protections at a later time when it may be too late.

70 percent of retirees will need long-term care at some time

There are two dramatic statistics that stand out on the subject of elderly planning. First, according to the Long Term Care Group, the average annual cost of a room in a skilled nursing home was $97, 611 in 2014, and it could have been as much as $147,982. Secondly, about 70 percent of people 65 years old and older will need some kind of long-term care. Whether a person lives in Texas or another state, the only reasonably practical way to protect against losing all of one's assets to long-term care costs is to plan and start an aggressive elder law plan as early as possible.

In some cases, the individual may be able to purchase long-term care insurance. That insurance will pay for nursing home or even home-care costs for the coverage term. Because the product is generally expensive, one will benefit from consulting with an insurance or financial adviser to determine the affordability of long-term care insurance under the particular circumstances. The consultation may include investigating some of the hybrid forms of insurance that may be less expensive or that may pay dividends if the coverage is not used.  

Planning may stop long-term care costs from erasing life savings

According to the National Health Policy Forum, the annual cost of nursing home care in 2012 was between $81,000 and $90,000. Assisted living facilities cost an average of $42,000. Most retired Americans, including those in Texas, cannot afford to finance such high costs of long-term care. In fact, it is regularly reported that many retired persons have had their relatively modest life savings eaten up by long-term care costs.

That is particularly tragic because one of the implied promises of a productive, hard-working life in this country is that a person will be able to leave the fruits of his or her labor to family and loved ones. The problem, of course, is part and parcel of the massive economic problems associated with escalating health care costs. Fortunately, there are legal planning tools that can help to greatly lessen the impact of such financial burdens.

With planning, an estate may be exempt from the probate process

Probate takes place after the individual is deceased. It entails a situation where the decedent had sufficient assets in his or her name to qualify for the necessity of court administration of those assets pursuant to law. In Texas and other states, probate involves the appointment of a representative to administer the estate on behalf of the decedent. This can be the person appointed in a will or it may be a person who applies to the court where there is no will.

The representative will collect all assets and list them in an inventory that is filed with the probate court. Creditors and administrative expenses are paid and the remainder of assets distributed to the beneficiaries. Without a will, the beneficiaries will be those persons listed in the state statute relating to intestate succession.

Our Office Locations

The Livens Law Firm
2516 Harwood Road
Bedford (Fort Worth), TX 76021
Phone: 817-545-3425
Toll Free: 800-569-2663
Fax: 817-545-9847
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Austin Office
3 Lakeway Centre Court
Suite 120
Austin, TX 78734
Phone: 800-569-2663
Fax: 888-545-9847
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Addison Office
14135 Midway Rd.
Suite G-250
Addison, TX 75001
Phone: 972-685-5202
Fax: 972-685-5206
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