Wills and Estate Planning

Many clients will choose a Last Will and Testament (“Will”) as the foundation of their estate plans. A person dies either with a Will or other dispositive document referred to as dying “testate” or without a Will which is dying “intestate.” A Will is the Testator’s opportunity to control the disposition of his or her assets at the time of his or her death. It is a document which must meet strict criteria in order to be “probated” by the court at the time of the Testator’s death. The advantages of a Will include

• Ability to select your executor
• Transfer your assets according to your plan vs. the “State of Texas” plan
• Designate a guardian for your minor children
• Make charitable gifts
• Protect your pets
• Minimizes your estate tax burden
• Disinherit a family member
• Control when your children receive your estate (instead of all at once possibly as young as age 18)
• Protects property in the case of the “blended” family
• Allows lesbian and gay couples to protect their life partner
• Protect your estate from “creditors and predators”

 

Many clients will choose a Revocable Living Trust ("RLT") instead of a Will as the foundation of their estate plans. Properly drafted, a RLT offers complete asset control to clients during their lifetime; avoids multiple probates if the client has several residences or inherited property in another state or states; provides for incapacity planning during the client and his or her spouses lifetime and after death; and on death allows them to pass their assets to their loved ones without the costs, delays, and the public record associated with probate.

Can I protect my spouse and children's inheritance from "creditors and predators"?

With proper planning. We often incorporate irrevocable trust planning to provide protection for the surviving spouse by holding a portion of the estate in a trust which pays income and principal to the surviving spouse but retains creditor protection and protection of your family from remarriage. Also, instead of leaving your assets equally to your spouse or your children outright, why not leave it to your children in "Dynasty Trusts" – lifetime irrevocable inheritance trusts. These trusts, if properly drafted, can protect your child's inheritance from a spouse in the event of divorce; protect your child's inheritance from creditors in the event of a financial hardship; and upon your child's death, the unused assets can be protected for your grandchildren.

How often should I review my Estate Plan?

The only constant in life is change. So as your assets and family matures, your estate plan may need to adjust to those changed circumstances. It is important to maintain your estate plan to ensure it is keeping up with the changes going on in your life and the complex changing laws and tax consequences. These are just a major life events that would necessitate a plan review:

• Birth or death of a family member or potential beneficiary
• Divorce - whether it's yours or someone identified in your estate plan
• Change in your distribution plan; or your named agents, executors or trustees
• Change in your financial circumstances
• Change in your property ownership
• A desire to change one of your named "fiduciaries" or alternate fiduciaries (e.g., executor, successor trustee, financial power of attorney; health care agent, etc.) in your legal documents.

You should initiate a review under any of these circumstances. And even if none of these circumstances have changed, it is a good idea to review your plan with your estate planning attorney every 2-5 years.