You should speak with a property or an estate planning attorney to help you understand your legal rights and to make sure your written agreement complies with the state’s statutory requirements.

It is generally insufficient to create a deed that states your intent to hold property with your spouse with a right of survivorship. Instead, your attorney will most likely draft a separate agreement stating such and file it in the appropriate county clerk or recorder’s office. You should also be aware that although a written agreement signed by you and your spouse may allow the surviving spouse to have an unfettered ownership interest to community property at one spouse’s death, the agreement will not control who receives your property after the surviving owner dies. Instead, you must create a will to control the future disposition of your community property. If you fail to draft a will, the state’s rules of intestate succession establish the rights that heirs have to your property.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

Marital property ownership rights are important for estate planning purposes. In most community property states, communal owners each own half of their property and as such, they may freely dispose of their rights as they wish while they are alive or at death. At one spouse’s death, a community property owner may not have an automatic right of survivorship to the remaining property. However, in Texas, the Texas Legislature recognized the need for flexibility for planning purposes between spouses.

The Texas Legislature amended the Texas Constitution and the Texas Probate Code. The Texas Probate Code allows spouses to enter into agreements whereby a surviving spouse has a legal right to automatically own her deceased spouse’s community property upon his death. Spouses can enter into written agreements between them giving one spouse a survivorship interest to community property. To conform with the Texas Probate Code, a written agreement must bear the signatures of both parties and must identify the subject community property. The language within the agreement must specifically incorporate specific survivorship language giving a surviving owner a right to unlimited ownership of that community property at one owner’s death.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

Typically, unless you are going through or have gone through a divorce, you probably haven’t given much thought to the term “community property” or “equitable property.” If you are thinking about estate planning, you should understand what “community property” and “equitable property” really mean. Most states follow the common law regime of equitable property during divorce and for estate planning purposes. However, like a handful of other states, Texas is a minority community property jurisdiction.

Courts in community property jurisdictions consider that all property acquired during marriage as joint property of both spouses. Unlike equitable distribution jurisdictions, community property jurisdictions view spouses as equal owners of community property, regardless of how they hold title to their property.

In equitable distribution states, courts divide marital property and debts equitably, not necessarily equally. Spouses in community property jurisdictions own property acquired during marriage equally. Similarly, they are jointly responsible for their marital debts. However, in equitable distribution states, there is no presumption of equal ownership in divorce, and judges can divide marital assets and debts using an equitable methodology. In many cases, fault may play a big role in how courts ultimately divide marital property and debts in the absence of a property settlement agreement.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

Elderly residents should be wary of high-pressure tactics from overbearing salespeople who pressure them into giving them your financial information. Be wary of con artists throwing around probate law terms like “executors.” You should always be suspicious of claims from scam companies promising that you can significantly reduce your estate taxes by creating living trusts. A written will can also help you reduce your taxes and are often less expensive to create. Promises that a living trust will help you receive federal or state government assistance are false. Finally, you should be wary of overinflated claims from fraudulent salespeople guaranteeing that you can save lots of money in federal taxes by creating living trusts.

Only a licensed attorney can help you decide if a living trust would appropriate serve your estate planning needs and only after carefully discussing your goals with you.

Although living trusts can provide some tax benefits, so can other estate planning tools, including making lifetime gifts. Unfortunately, not all consumers understand the specific legal advantages to creating living trusts. Without proper legal training and consulting, consumers often unintentionally overemphasize the utility or benefits to creating living trusts. These myths helped fraudulent and deceptive businesses devise living trust scams. Scaring consumers, mainly elderly consumers, into believing they should create living trusts, living trust scam artists sell fake living trust forms and kits.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

As discussed in the last blog, the Texas Attorney General and Texas Bar brought living trust scams to our attention. Living trust scam artists purporting to sell living trust kits or documents prey upon elderly consumers’ fears. Unfortunately, these kits are often worthless and can cost thousands of dollars. Other living trust scam businesses sell living trust products in an effort to obtain a consumer’s private financial information. Deceptive living trust salespeople may visit you at home or call you by telephone in an effort to persuade you into buying a worthless living trust kit or do it yourself form. The Attorney General of Texas recommends you contact your local law enforcement if you suspect you are the victim or intended victim of a living trust scam.

Con artists selling living trust kits or forms may scare you into believing that using wills instead of living trusts will save you years in unnecessary probate court procedures or thousands of dollars in court costs. You should realize that will contests or claims challenging the validity or authenticity of a probated will are very unlikely. Only a probate law attorney can decide if a living trust is suitable for your estate planning needs, and only a licensed attorney should help you draft this document tailored to your individual needs. A salesperson selling fraudulent living trust services may face criminal or civil sanctions by practicing law without a professional license.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

Beware of living trust scams targeting elderly residents across the nation. A living trust is a written legal instrument allowing you to place your assets into trust for the benefit of your beneficiaries. A trustee manages the living trust on your behalf. The written instrument earns its name from the fact that you create a living trust while you are still living. A living trust may be irrevocable or revocable. You may not alter or revoke an irrevocable living trust document, unlike a revocable living trust, which you can revoke or amend. Living trusts are useful estate planning tools, but they are not appropriate for everyone.

A living trust is not a one-size-fits-all solution to estate planning. Typically, a living trust is only one part of your estate planning documents, which also includes a written will. Furthermore, a living trust must comply with specific state laws, and in Texas, the Probate Code establishes the statutory requirements when creating a valid living trust. A living trust does not help you avoid probate; since a will and a living trust is not the same thing, although they may serve similar purposes. An attorney licensed to practice law in Texas will probably not use prepackaged living trust forms and will help you create a specifically tailored document.

If you fall victim to a living trust scam, you may have a right to cancel your transaction within three days under federal law if you entered into it during a door-to-door sales transaction.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

Another disadvantage of dying without a validly created will is that Texas law treats a lifetime gift only as a gift and not as an advancement of a future bequest. For example, if you intended to count a niece’s car as a gift against her future inheritance, you need to state such in your will. If you do not create a will, the Texas Probate Code treats the gifted car as a gift and not as an advance. This can become a problem if you intended to give your children equal shares of your assets but gave one a sizeable lifetime gift to count toward her inheritance.

By neglecting to draft a will, you cannot select who will be responsible for administering your estate. If you drafted a will, you could select your attorney, a family member or trusted confidante to administer your estate. If you die intestate, a court may have to appoint an individual to act as your personal representative, and the appointed individual may not have any relationship to you. Furthermore, if a court appoints a family member to serve as the personal representative of your estate, she may have to post a bond with the court to ensure timely payments to creditors and distributing your property to your heirs. This may be expensive, depending on the size of your estate, and it may be difficult for her to afford without her inheritance.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

As previously discussed, a major disadvantage to dying intestate is the lack of control you have as to who will inherit your property. If you wanted to leave a large portion of your estate to a special nephew, you must do so by will. If you do not create a will, your nephew only receives his intestate share of your property, as established by the Texas Probate Code. If you die with a surviving spouse and children, they will receive most of your property, and your nephew may not receive anything. This would not occur had you created a will because of the Texas laws against forced heirship with testate residents. Similarly, if you intended to leave your girlfriend a portion of your estate, she will not receive anything under the Texas Probate Code’s intestacy rules of succession because she is neither your surviving spouse nor a blood relative. If you want to leave property to an unrelated caretaker who cared for you when you became ill, your caretaker will not receive anything pursuant to the intestacy statute.

Dying intestate may lead to unnecessary delays during the probate process, and a significant amount of time may pass before your heirs will receive their inheritances. In the interim and during the delay, your heirs may no longer be alive to receive their property. A probate court may have to locate missing heirs and confirm their family ties to you before making distributions. Your heirs could also contest their intestate shares by filing challenges with a probate court.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

Each state’s intestacy laws will establish what happens to your property if you die without a will. In Texas, the Texas Probate Code governs who receives your property and the order of priority in those distributions. The Texas Probate Code establishes an order of intestate succession or distribution scheme for residents who died before and after Sept. 1, 1993. After Sept. 1, 1993, the beneficiaries of your property depend on their degree of kinship to you. The Texas Probate Code automatically gives certain heirs and your surviving spouse a legal right to inherit your property. If you did not want to leave property to certain heirs, you need to draft a valid will. You cannot usually totally disinherit your surviving spouse or dependent children by will alone.

There are many disadvantages to dying without a validly created will. A common disadvantage is that you retain almost no control as to which heirs inherit your property. If you wanted to leave certain friends, colleagues and charitable organizations property, you need to create a valid will, since the state’s intestacy rules do not include them. By creating a valid will, you can avoid most of these pitfalls. Scheduling an appointment with our office is the first step in helping you avoid them by creating a will.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

Estate Planning:  http://www.domain.com/estate_planning/estate-planning/
As previously mentioned, Texas law allows residents to exclude a broad range of personal property as exempt homestead property set-asides. Exempt personal property set-asides include any personal property of up to $60,000 per family or $30,000 for unmarried residents. This includes household furnishings, business property and tools, clothing, toys and books. Texas homestead exemptions include farming or agricultural equipment, some agriculture livestock and household pets and athletic equipment. The agricultural and farming exemption allows you to set-aside up to 12 cattle, up to 60 other livestock, domestic pets and 120 fowl. Texans may exclude up to two firearms as homestead set-aside property.

The homestead exemption does not distinguish between community and separate property. Thus, separate property acquired before marriage and separate property acquired by gift or inheritance during and after marriage is subject to the exempt treatment. Homestead property also includes community or marital property acquired by one spouse or both spouses during marriage. As such, if the homestead exemption attaches to any item of real or personal property, it does not matter when it was acquired. Thus, if you die with only community property, your surviving spouse may be able to inherit your entire estate as a surviving owner. As previously discussed, although most creditors cannot reach homestead and set-aside property, some secured creditors may be able to use them to satisfy their existing debts. Because of the homestead property exemption laws, understanding what your probate assets include and what creditors cannot reach is important, and we may be able to further explain the provisions.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.