Common Questions

There are various options to get the title cleared up so that there are no legal impediments to selling the property at some point in the future. For example, if the will clearly gives the entire ownership of the home to the surviving spouse and the property is located in the same county as the county of probate, then filing a certified copy of the will and the court order admitting the will to probate in the Deed Records of the county where the real estate is located should sufficiently identify the surviving spouse as owner of the home. Another option may be completing and filing a Distribution Deed in the Deed Records which establishes that the deceased spouse has gifted his share of the home to the surviving spouse.

For a husband and wife, this would seem to be an easy solution to avoid probating the home because the surviving spouse is the remaining owner of the property. But there are some practical considerations. For example, some third parties—like lenders and title companies—are reluctant to recognize this co-ownership form for real estate in Texas. Some title companies will not insure title to Texas property owned in joint tenancy with right of survivorship. Lenders may also be skittish with joint tenancy with right of survivorship language in the loan documents. So, a couple should evaluate whether these practical roadblocks may cause problems before filing a deed with right of survivorship.​ Also remember that when the second spouse passes away, there still needs to be a plan to transfer ownership of the home.

Retirement accounts and life insurance are characterized as non-probate assets because upon death the funds are distributed to named beneficiaries. However, most people own some probate assets, and if you do not have a will, then those assets will be transferred according to what the government thinks is best for you. Also, you may need to direct some of your non-probate assets to pay off your mortgage or other important assets which have liens. Coordinating these plans with a will usually a cornerstone of your plan, especially since independent administration of your estate is usually straight forward in Texas.​

There are several types of powers of attorney which allow you to choose one or more persons, whom you trust and who understand your priorities, to make financial and/or medical decisions on your behalf. There are some laws which allow your spouse and other close family members to make medical decisions for you, but no such laws exist for financial transactions.

There are some occasions when it makes sense to do something yourself. For example, a single person who just graduated college and has very few assets. However, once you begin to accumulate assets, marry, have children, and things become more complicated, it is a good idea to work with an attorney to make sure that your contingency plan is set up the way you want it to work.

You may or may not need to make changes to your plan. When you have big changes in your life--have a child, acquire a new home or other assets--it is recommended that you meet with an attorney to discuss those changes to see if anything needs to be changed in your plan. Otherwise, meeting with an attorney every 3 to 5 years to review your plan is a good idea. There may be some changes in your life that you did not realize created needed changes or there may be some changes in the law which requires some modifications to your plan.

Feel free to set up a consultation with me if you'd like to know more about the steps you can take to ensure your family is taken care of should you become unable to care for them. In addition to a consultation, here are a few resources from published articles in mainstream media. These articles provide general information and do not necessarily apply to Texas, but they often have some good issues or questions to raise when you are putting together your plan. I do not represent that these articles necessarily apply to you or that the information contained in the articles is correct as it applies to Texas. General Estate Planning • Protect Your Loved Ones with an Estate Plan (Kiplinger.com) • Estate Planning Checklist (Forbes.com) • Common Estate Planning Mistakes (Kiplinger.com) • How to Use Your Estate Plan to Save on Taxes (Kiplinger.com) • My Dad Passed Away, How Can I Access His Retirement Funds (Kiplinger.com) • 5 Estate Planning Scams to Avoid (GOBankingRates.com) • 10 Simple Steps on How to Start Estate Planning (MoneyBliss.com) • 12 Reasons Not To Leave Your House to Your Children When You Die (Financebuzz.com) • 8 Inheritance Mistakes That Can Tear Families Apart (FinanceBuzz.com) Couples or Individuals with Kids • Dividing Assets in Your Will Can Split Siblings. Here’s How. (Washingtonpost.com) Estate Planning for Individuals • Estate planning for singles (Kiplinger.com) • Estate Planning Tips for Those Who are Single (SmartAsset.com) • Estate Planning Tips for Those With a Disability (SmartAsset.com) Wills • The 10 Most Important Things to Include in Your Will, Experts Say (BestLife.com) • Seven Things You Should Leave Out of Your Will, According to Experts (Kiplinger.com) • 15 Costly Disadvantages of Not Having a Will (Worthly.com) Estate Planning Without a Will • Payable-on-Death vs. Transfer-on-Death, Which Account is Right for Your Legacy (SmartAsset.com) • The Key Differences Between Attorney-in-Fact and Power of Attorney (GOBankingRates.com) • Which Type of Power of Attorney Is Right for You? (Kiplinger.com) Retirement Accounts • Understanding Inherited IRAs, Rules, Options, and Benefits (BusinessInsider.com) • My Dad Passed Away, How Can I Access His Retirement Funds? (SmartAsset.com) • Is a Roth Conversion for You? 7 Factors to Consider (Kiplinger.com) • You Inherited an IRA, Here’s How to Avoid a Huge Tax Bill (Barron's.com) • Is Spousal Consent Required to Change 401(k) Beneficiary? (SmartAsset.com) • Naming Beneficiaries for Inherited IRAs, What You Need to Know (Kiplinger.com) • 403(b) vs. 401(k): What’s the difference in these retirement accounts? (BankRate.com) • The (R)evolution of Retirement Income Planning (Kiplinger.com) Beneficiaries • What to do if you inherit a house with a mortgage (Bankrate.com) Executors • Eight Steps to Take When Settling an Estate as the Executor (Kiplinger.com) Long-Term Care/Elder Planning • How to Pay for Long-Term Care (Kiplinger.com) Other Interesting Articles • Nine Things to Keep in a Home Safe (Kiplinger.com) • Here's What Happens to Your Bank Account After You Die (fool.com/the-ascent/) • Why Now Is the Best Time To Protect Yourself From Potential Fraud (Kiplinger.com)