Brandon Talks Back

Dear Wondering,

I wish I could tell you that a Will and Trust are like a cast-iron skillet: buy one, season it, and it will last forever.

Unfortunately, estate planning documents are more like your driver's license photo. The longer you go without looking at them, the greater the chance they no longer reflect reality.

A good rule of thumb is to review your estate plan every three to five years. However, don't wait for the calendar if life gets in the way. Marriage, divorce, births, deaths, a move to another state, a significant increase or decrease in assets, or changes in your family relationships are all reasons to pull those documents back out and take another look.

I often find that the documents themselves are not the problem. The problem is that the people named in them have changed. The executor moved away. The trustee passed away. The children grew up. The grandkids arrived. Life happened.

Think of your estate plan like the batteries in your smoke detector. It may seem fine sitting there quietly, but a periodic check can save your family a lot of headaches when they need it most.

If you can't remember the last time you reviewed your Will or Trust, that's probably your sign that it's time.

Dear Confused Marie,

A Lady Bird Deed is one of the most popular estate planning tools in Texas because it allows you to keep complete control of your home during your lifetime while naming who will receive it automatically when you pass away.

The biggest advantages are that it can help avoid probate, preserve flexibility because you can change or revoke it at any time, and it may help protect the property from Medicaid Estate Recovery in many situations. The beneficiary has no ownership rights while you are alive, so you remain in control.

The biggest drawback is that it only works for real estate. It does not transfer bank accounts, investments, vehicles, or other assets. It also must be prepared correctly to avoid title issues later.

Like most estate planning tools, a Lady Bird Deed is neither good nor bad on its own. It is simply the right tool for some situations and the wrong tool for others. The key is making sure it fits your overall estate plan.

Before signing any deed, make sure you understand exactly what it does and, just as importantly, what it does not do. A Lady Bird Deed can be a great solution, but it is only one piece of the puzzle.

Dear Alex,

Think of it this way:

A Lady Bird Deed is planning ahead.
Probate is cleaning things up afterward.

Both can transfer title to real estate after death, but the time, cost, stress, and court involvement can look dramatically different.

With a Lady Bird Deed, the owner signs and records the deed while alive, keeps full control of the property during life, and names who automatically receives the property at death.

And when I say automatically, I mean no probate court is usually needed for the transfer itself.

The beneficiary typically records:
• an Affidavit of Death, and
• the death certificate

and title transfers through the county property records.

That is why people love Lady Bird Deeds in Texas.

The owner can still:
• sell the property
• refinance it
• mortgage it
• revoke the deed

without the beneficiary's permission.

It also commonly:
• avoids probate costs
• avoids probate delays
• preserves a stepped-up tax basis
• helps protect against Medicaid estate recovery

Now here is the part many married couples do not realize:

In Texas, the house does NOT automatically go to the surviving spouse just because they are married.

I repeat that all the time because people are genuinely shocked by it.

Unless proper survivorship language or planning was done ahead of time, part of the deceased spouse's interest may still require probate before clear title can pass.

That means the surviving spouse may suddenly discover:
• they cannot easily sell the home
• refinance the home
• transfer the home
• or sometimes even clear title problems

until probate is completed.

In other words:

The mortgage company may recognize the surviving spouse. The title records may not.

And that is where probate enters the picture.

In Dallas County, probate can involve:
• court filings
• attorney fees
• waiting periods
• notices to heirs and creditors
• and months of administration

Even a relatively simple probate can take several months.

The bottom line, Alex:

A Lady Bird Deed is often one of the simplest and most cost-effective ways to keep real estate out of probate in Texas.

But the key is this:

The planning must happen before death, not after.

First, thank you for attending our seminars and for taking the time to reach out. We truly appreciate your kind words.

Because the farmland is in North Dakota and the sale involves tax considerations that depend on several factors, including how the property was held in the trust, the valuation at your mother’s death, and how the transaction will be reported, it would not be appropriate for us to provide specific tax or North Dakota real estate guidance. Additionally, I am only licensed to practice law in Texas, so advice regarding North Dakota real estate procedures generally needs to come from professionals licensed in that state.

That said, a few general items are commonly addressed when inherited real estate is sold.

When property is inherited, it typically receives a “step-up” in cost basis to the fair market value as of the date of the decedent’s death. Establishing that value is important because it is what is generally used to determine whether there is any capital gain when the property is sold. Many families obtain a date-of-death appraisal or other reliable valuation to document this.

It is also important that the trust or estate administration is properly documented so that title can transfer cleanly at closing. The title company or closing attorney handling the North Dakota transaction will typically confirm that the trust has authority to sell and that the proper parties are signing.

Because farmland sales can involve additional tax considerations, such as capital gains reporting and how proceeds are allocated among beneficiaries, families commonly coordinate with their CPA or tax advisor prior to closing to understand how the transaction will be reported to the IRS and what documentation to retain.

Given that your situation involves inherited property, a trust, multiple beneficiaries, and land located in another state, the best next step is usually to review the details with your CPA and the North Dakota closing professional or attorney handling the transaction so they can confirm the proper tax reporting and any state specific requirements.

Thank you again for attending our seminars and for reaching out.

You are not alone. This is a very common misunderstanding.

A Will is actually one of the main estate planning documents. It is not something separate that you have to have in addition to an estate plan. When people talk about an “estate plan,” they are usually referring to the full set of documents that work together to protect you.

A Will handles what happens after your death, such as who receives your property and who is in charge of settling your affairs.

A complete estate plan also includes documents that protect you while you are living in the event of incapacity. At our firm, that includes:

• Statutory Durable Power of Attorney
• Durable Power of Attorney for Property
• Health Care (Medical) Power of Attorney
• HIPAA Release Form
• Physician’s Directive (Living Will)
• Declaration of Guardian
• Declaration of Guardian for Children, if applicable
• Authority for Disposition of Last Remains and Burial and Funeral Instructions
• Dementia Directive

All of these documents together make up your estate plan. The Will is just one part of it.

Dear Confused and Not Cash or Real Estate Rich,

You are not alone in thinking that estate planning is only for the wealthy. That is one of the most common misconceptions I hear in my practice.

Estate planning is not about how much money you have. It is about what happens if something happens to you.

If you were injured or became unable to make decisions, who would speak for you medically? Who would access your accounts, pay your bills, and handle everyday matters without court involvement? If you passed away, would your loved ones have clear instructions, or would they be left dealing with delays, probate, and unnecessary stress?

You do not need a large estate to need an estate plan. If you have a body, relationships, responsibilities, or belongings you care about, then you already have enough at stake.

Estate planning is real life planning. The goal is not to protect millions. The goal is to protect people.

Dear Anita,

It sounds logical to think that if every financial account has a Transfer on Death or Payable on Death designation, a will is unnecessary. In practice, that assumption causes more problems than it solves.

Transfer on Death and Payable on Death designations control only the specific account they are attached to and only at that institution. They do not coordinate with each other, and they do not adjust when life changes. A will is what ties everything together.

First, Transfer on Death and Payable on Death designations fail more often than people realize. Beneficiaries may die first, forms may be outdated, accounts may be missed, or an institution may be acquired or merged. When banks or brokerages are bought, sold, or renamed, beneficiary records do not always carry over correctly. If a Transfer on Death or Payable on Death designation is missing, rejected, or invalid, that account becomes part of the estate. Without a will, Texas law decides who receives it.

Second, Transfer on Death and Payable on Death designations do not handle contingencies. They do not address minors, disabled beneficiaries, divorce, creditor issues, or what happens if a beneficiary cannot inherit. They also do not allow for layered instructions or meaningful backup planning. A will provides clear direction when the original designation fails.

Third, a will is still required to put someone legally in charge. Transfer on Death and Payable on Death designations move money, but they do not appoint an executor to handle final expenses, taxes, refunds, claims, or disputes. Someone must have legal authority to manage those matters, and that authority comes from a will.

Fourth, joint ownership with rights of survivorship creates its own gaps. Survivorship only works if one owner clearly survives the other. If both owners die at the same time or it cannot be determined who died first, survivorship fails and the account must pass through probate. Even when survivorship works at the first death, the asset becomes fully owned by the survivor. When the survivor later dies, that account passes under the survivor’s estate plan or under intestacy if there is no will. The original owner’s wishes no longer control.

Fifth, not every asset fits neatly into a financial account. Final paychecks, refunds, legal claims, personal property, and newly acquired assets often fall outside Transfer on Death and Payable on Death structures. A will is what captures those loose ends.

Think of it this way. Transfer on Death and Payable on Death move accounts. A will protects the plan.

If the goal is simplicity for the people left behind, relying solely on Transfer on Death and Payable on Death designations assumes perfect paperwork, perfect timing, and no changes. A will is what keeps the plan legally sound when those assumptions fail.

Dear “Bypassing Parent,”

You’re certainly not the first parent to wrestle with this kind of decision, and you’re wise to ask before you act. While I can’t give legal advice about North Carolina law since I’m only licensed in Texas, I can tell you how this generally works here in the Lone Star State.

In Texas, you are free to leave your estate to whomever you wish, even if that means skipping over your only living child and leaving everything to a former stepchild and his long-time partner. The key is clarity. Your will or trust should clearly say that you are intentionally leaving your child out, not just forgetting to mention them. That single sentence can prevent a lot of confusion and possible court battles later.

As for your former stepson’s “common-law wife,” Texas does recognize common-law marriages if the couple has agreed to be married, lived together, and represented themselves as married since that time. However, that recognition varies by state, so you would need a North Carolina attorney to confirm how it is handled where you live.

Now, about the “reading of the will.” Hollywood made that one famous, but it doesn’t really happen. There is no big gathering where the lawyer opens a will and reads it aloud to the family. In Texas, the executor simply provides notice to each person who is entitled to receive one, privately and individually.

So yes, you can bypass your child if that is your wish, but it is crucial to work with an estate planning attorney licensed in your state to make sure your intentions are carried out exactly as you want.

A: Dear Out of State:

Great question! This is something we see quite often, especially here in Texas where families may own oil, gas, or mineral rights across state lines.

If you already have a Trust, you’re in a good position. Those out-of-state interests should be funded into your Trust, which simply means transferring ownership from your personal name into the name of your Trust. Doing this allows your successor Trustee to manage and distribute those assets without the need for probate in any other state. It keeps things simple, private, and cost-effective.

If you have only a Will, things become more complicated. Your Will must first be probated in Texas, and then a second probate, called an ancillary probate, must be opened in each state where you own property. Probate is the court process that proves your Will, settles any debts, and authorizes the transfer of property to your heirs. Each state has its own court system, rules, and fees, which means more time and expense for your loved ones.

If you have no Will or Trust at all, the process is even harder. Each state where you own property will require its own court proceeding to determine who your heirs are under that state’s laws. This can be time-consuming, costly, and may lead to results you did not intend.

The bottom line:
If you own oil, gas, or mineral interests outside of Texas, make sure those assets are transferred into your Trust now. It is one of the easiest ways to save your family time, money, and frustration later—and it ensures that your wishes are carried out exactly as you planned.

That’s an excellent and very important question, and one that many people wonder about. When one spouse passes away and the surviving spouse later remarries, it’s natural to ask how that new marriage might affect the trust that was previously created.

Before getting into the general information, it’s important to explain why we can’t give a specific answer here. Because of attorney–client confidentiality, we are not able to confirm whether someone who submits a question is or is not a client of the firm, nor can we discuss the details of any individual’s trust in a public forum. Every trust is drafted according to the specific goals, family circumstances, and financial situation of the people who created it. Discussing those details publicly could risk disclosing confidential information.

For that reason, any response I provide here must remain general in nature. The best and only way to know exactly how remarriage might affect your trust is to schedule a confidential, one-on-one meeting with me to review your specific trust document and its terms, whether or not I was the original drafting attorney.

That said, here are a few general points and questions to consider:

• Does your trust become irrevocable when one spouse dies? If it does, remarriage may not change the trust itself, but it could impact how assets are managed or what flexibility remains for the surviving spouse.
• Is the surviving spouse’s portion still revocable? If so, remarriage could raise new legal and financial considerations, particularly relating to community property, spousal rights, and whether new jointly held assets are properly titled.
• Does your trust mention remarriage? Some trusts include clauses that limit certain powers or distributions if the surviving spouse remarries, while others are silent on the subject.
• Have your goals or relationships changed? Even if remarriage doesn’t automatically change your trust, it’s often a good time to review the plan and make sure it still reflects your current intentions and family structure.

Because each trust is written differently, only a review can answer how these factors apply to your specific situation.

Bottom line: While remarriage may or may not affect a trust, the only way to know for sure is through a confidential review of the trust’s terms and conditions.

A: Dear Nancy:

You are not the first person to ask this, and it is a great question. Many couples think they can set up their trust now and wait to move their home into it after they both pass, but in Texas that is not how it works. If you leave the home in your names, it will not automatically go into the trust when you are gone. The only way it gets there is through probate, which is exactly what most families are trying to avoid.

The best approach is to go ahead and deed your home into your trust now. That one simple step allows the home to pass directly under your trust’s terms when you and your husband are gone, without the time, cost, or court involvement of probate. Many people worry that deeding their home into the trust will change something about their day-to-day life, but that is not the case. You keep your full ownership and control of the home, and you continue to qualify for your homestead exemption and all other related tax benefits. Your property taxes, mortgage, and insurance remain the same. The only change is that the title reflects that the property is owned by your trust, and that change saves your family a great deal of time, cost, and stress later.

If you wait until after both of you pass, your home cannot move into the trust automatically because no one can sign a deed after death. Your heirs would then have to go through probate and use your pour-over will to get it into the trust. Some people consider using a Transfer on Death Deed instead, but that document must be signed and recorded before death to be valid, and it does not provide the same flexibility or protection that a trust offers. A trust allows you to adjust your plan at any time without recording new documents, and it provides management if you become incapacitated. It also lets your successor trustee handle the property immediately at your passing, protecting your beneficiaries and avoiding any delays, disputes, or court filings.

By deeding your home into your trust now, you keep everything exactly the same during your lifetime while ensuring your home passes smoothly and privately to your heirs. It is the most complete and reliable way to protect your home and avoid probate altogether.

A: Dear Kurt: Q1: How do I move financial assets to an existing family trust without the need to liquidate positions and incur tax as with retirement accounts?

Retirement accounts are the landmine here. IRAs, 401(k)s, 403(b)s, and similar plans cannot be retitled into a trust during your lifetime. If you try, the IRS treats it as though you cashed out the entire account. That means every dollar becomes taxable income in that year, and you could forfeit a huge portion of your nest egg to federal (and possibly state) income taxes. It is one of the most expensive and irreversible mistakes people make with trusts.

The safe approach: keep retirement accounts in your own name and use beneficiary designations to direct them into your trust (or to individuals) after your death. That way, the tax-deferred status remains until distributions are required.

By contrast, non-retirement assets — bank accounts, brokerage accounts, CDs, and mutual funds — can usually be retitled directly into the trust without creating a taxable event. Another option is to add a “Transfer on Death” (TOD) or “Payable on Death” (POD) designation naming the trust. Either way, your assets move into the trust without liquidation or tax headaches.

Q2: How are financial assets impacted when the trust is the beneficiary? When your trust is the named beneficiary, what happens next depends on the type of account.

• Retirement accounts: The SECURE Act changed the game. Most non-spouse beneficiaries now must withdraw the entire balance within 10 yearsof your death (the “10-year rule”). Gone are the days when nearly anyone could “stretch” distributions over a lifetime. The only exceptions are Eligible Designated Beneficiaries (EDBs): a surviving spouse, a disabled or chronically ill beneficiary, a minor child of the account owner (until age 21), or someone less than 10 years younger than you. If your trust qualifies as a see-through trust, the IRS looks to the underlying beneficiaries and applies these rules. If not, stricter payout rules — sometimes a 5-year limit — may apply.
• Non-retirement assets: These pass seamlessly into the trust, free of forced withdrawal rules, and are managed according to your trust terms.

Bottom line:

• Never retitle retirement accounts into your trust during life — it’s a guaranteed tax disaster.
• Use beneficiary designations for retirement accounts.
• Retitle or TOD/POD your non-retirement assets into the trust with no tax hit.
• Remember: the SECURE Act’s 10-year payout rule is the new reality for most inherited retirement accounts.

Legal Disclaimer This information is provided for general educational purposes only and is not legal, tax, or financial advice. Retirement accounts and trusts are complex, and mistakes can have significant tax consequences. Always consult with a qualified estate planning attorney and a financial/tax advisor before making changes to account titling or beneficiary designations.

A: Dear Maria:

You can breathe easy! Using a Transfer on Death Deed in Texas will NOT cause your sons to lose the step-up in basis. You've found an excellent estate planning tool that gives you the best of both worlds.

Here's the good news: When you pass away, your sons will inherit the house at its fair market value on that date (the "stepped-up basis"), not what you originally paid for it. This means if they decide to sell the property, they'll likely owe little to no capital gains tax since their tax basis will be close to the current market value.

The IRS treats Transfer on Death Deeds the same as property that passes through a last will for tax purposes. The magic happens because the property transfers at death, not while you're alive. If you had given them the house as a gift while living, THAT would have cost them the step-up benefit.

As a Texas resident, you have additional advantages: no state income tax means no state capital gains tax, and the Transfer on Death Deed avoids probate while preserving these favorable tax benefits. Plus, you can change your mind and revoke it anytime during your lifetime.

You're being a thoughtful mother by planning ahead. Just make sure a Texas estate planning attorney reviews the deed to ensure it's properly executed and fits with your overall plans.

A: Dear Transport Lover:

In Texas, trailers are considered motor vehicles under the Transportation Code, even though they are not self-propelled. The law defines a motor vehicle to include a trailer or semitrailer designed or used to be towed on a public highway, and the fact that your trailers have titles issued by the Texas Department of Motor Vehicles confirms they fall into this category. This means that if you are completing a Beneficiary Designation for a Motor Vehicle (such as Form VTR-121), you would need to include each titled trailer individually if you want the designation to apply to them.

A: Dear Widow:

1. "Per Stirpes" and Stepchildren:
In Texas, "per stirpes" distribution means that a deceased beneficiary’s share passes to their descendants (biological or legally adopted children, grandchildren, etc.). Stepchildren are not considered legal descendants under Texas law unless they were formally adopted.

So, if your stepdaughter passes away before you and she has no biological or adopted children, her share would not pass to her stepchildren or step-grandchildren under a generic "per stirpes" clause. Instead, her portion would typically be redistributed among your other beneficiaries according to the per stirpes structure in your will.

However, if your will specifically names the stepchildren or step-grandchildren and the language of the will clearly expresses your intent for them to inherit, then yes, they could inherit.

Notice: Please note that this is a general explanation based on Texas law and the limited facts provided. We have not reviewed your specific will, and our response should not be interpreted as legal advice tailored to your individual situation. The precise answer may depend on the specific language used in your will and any other relevant documents. We recommend a full review of your estate plan to ensure your intentions are properly documented.

2. Your Son's Half-Siblings and Intestate Succession:
If your son passes away without a will (intestate), Texas Estates Code governs who inherits his assets:

If he dies without a spouse or children, and you (as his parent) are deceased at that time, his property would typically pass to his siblings and half-siblings, with half-siblings receiving one-half the share of a full sibling.
Assets with designated beneficiaries (like bank accounts or retirement plans) would not go through probate and would pass directly to the named beneficiaries. But his house, vehicles, and personal property would follow the rules of intestate succession.

Notice: Again, this is a general overview of intestate succession in Texas and may not cover all variables in your son’s circumstances. If this is a real-world concern, a legal consultation and formal review of relevant documents are strongly recommended to ensure proper guidance.

A: Dear Marcia: In Texas, a Burial and Funeral Instructions form is governed by Section 711.002 of the Health and Safety Code and allows an individual to specify their wishes for the disposition of their remains. Here are some key things to know about this document:

1. Designation of Agent – You can appoint an agent to carry out your burial and funeral wishes. This should be someone you trust, as they will have authority over your remains. If no agent is designated, Texas law follows a priority order (spouse, adult children, parents, etc.).

2. Written and Signed Requirement – The instructions must be in writing, signed by the individual, and acknowledged before a notary public to be legally binding.

3. Agent’s Acceptance – The designated agent must also sign the document, acknowledging their acceptance of responsibility. Without this, the appointment may not be valid.

4. Consistency with a Prepaid Funeral Plan – If you have a prepaid funeral contract, the instructions should align with that plan. The prepaid plan takes precedence if there is a conflict.

5. No Official Filing – The document is not filed with any government agency but should be kept in a safe place and shared with your agent, family, and funeral home to ensure your wishes are followed.

6. Authority and Legal Standing – A properly executed form carries legal weight in Texas, meaning your appointed agent has the final say over your remains, even if family members disagree.

7. Revocation and Changes – You can update or revoke the form at any time, as long as you are mentally competent. Ensure that any outdated versions are destroyed or clearly marked as revoked.

This form provides peace of mind by ensuring that your final wishes are honored, reducing potential family disputes, and making the process easier for your loved ones.

A: Dear Lee: Yes, there are annual tasks and ongoing responsibilities that need to be addressed to maintain eligibility for Texas Medicaid. These include:     1. Annual Medicaid Renewal:

1. Medicaid recipients are required to renew their benefits annually to confirm continued eligibility.
2. You’ll receive a renewal packet or notification from Texas Health and Human Services (HHS), which must be completed and returned by the specified deadline.

2. Reporting Changes in Circumstances:

1. You must report any changes in income, assets, household size, or living arrangements to Texas Medicaid within 10 days of the change, as these can affect eligibility.

3. Asset Management:

1. For programs like Medicaid for long-term care, it’s crucial to ensure that the individual’s countable assets remain below the allowable limits.
2. Some individuals may need to review trust accounts or income arrangements annually to ensure compliance with Medicaid roles.

4. Maintaining Medicaid-Compliant Trusts:

1. If there is a Miller Trust (Qualified Income Trust) or Special Needs Trust, an annual review by an attorney or trustee is often recommended to ensure compliance and proper administration.

5. Re-certification for Long-Term Care Services:

1. If Medicaid covers nursing home or in-home care, the care plan and eligibility for these services may need re-certification annually. This often involves medical reviews and paperwork.

6. Reviewing Estate Recovery Notices:

1. Be aware of the Medicaid Estate Recovery Program (MERP). If applicable, recipients or their families may need to prepare for how this will be addressed.

7. Reviewing Estate Recovery Notices:

1. Stay in contact with your assigned caseworker to ensure all documentation is up-to-date and any questions or notices are addressed promptly.

By staying proactive with these annual tasks, you can avoid interruptions in Medicaid benefits. It’s always a good idea to consult with a Medicaid planning professional or attorney to ensure compliance.

A: Dear Nancy: In Texas, the state only places claims against estates that pass through probate, whether by validating a will in court or through intestacy (without a will). Ladybird deeds (enhanced life estate deeds) and Transfer on Death deeds, however, transfer the homestead directly to the designated beneficiary or beneficiaries, bypassing probate entirely. Therefore, using either of these deeds would prevent a successful state claim.   Under Texas law, it sounds like you’ve used a Transfer on Death Deed (TODD) to ensure your house passes directly to your son upon your death. The following points address your situation:

1. Ownership After Your Husband's Death: Since your husband predeceased you and the TODD named you as the surviving owner, the house became your separate property. This is consistent with Texas law regarding a survivorship deed or TODD.
2. Transfer on Death to Your Son: By filing a new TODD naming your son as the beneficiary, you have designated him as the person to receive the property upon your death. This means that, as long as the deed is valid, the property will bypass probate and transfer directly to him.
3. Stepchildren’s Rights: Under Texas law, your stepchildren do not have any rights to the property if it is your separate property and you have filed a valid TODD naming your son as the beneficiary. The TODD supersedes inheritance claims, provided all the paperwork has been correctly filed and there are no other legal complications.
4. Important Considerations:

1. Ensure the TODD was executed and recorded correctly with the county clerk.
2. Verify that there are no outstanding community property claims or legal challenges from your husband’s estate.
3. Consult with an attorney to review your estate plan to ensure everything is structured properly and aligns with your intentions.

If all the paperwork is in order, your son should receive the house directly upon your passing, and your stepchildren would have no claim to it.

A: Dear Leona: In Texas, the state only places claims against estates that pass through probate, whether by validating a will in court or through intestacy (without a will). Ladybird deeds (enhanced life estate deeds) and Transfer on Death deeds, however, transfer the homestead directly to the designated beneficiary or beneficiaries, bypassing probate entirely. Therefore, using either of these deeds would prevent a successful state claim.

A: Dear Carol: Lady Bird Deeds and Transfer on Death (TOD) Deeds offer a reliable and efficient way to transfer property to heirs, bypassing the complexities of probate. These deeds, although originating from different legal frameworks, share unique features that can provide you with peace of mind in your estate planning. Here’s a Quick Rundown of the Similarities:

1. Probate Avoidance: Both deeds let your heirs skip probate, saving time and expense.
2. No Gift Tax Concerns: The IRS doesn’t see these transfers as gifts, so no gift tax applies.
3. Homestead Rights Protection: Your homestead rights and any tax exemptions stay safe.
4. Flexibility: You can sell or mortgage the property without your beneficiaries’ approval.
5. Beneficiary Changes: You’re free to update beneficiaries as you wish during your lifetime.
6. Creditor Protection: Creditors of your beneficiaries can’t claim the property while you’re alive.
7. Medicaid Eligibility: Both deeds keep your Medicaid eligibility intact.
8. Tax Benefits for Heirs: Your heirs may get a “step-up” in tax basis, which can minimize capital gains taxes.
9. Medicaid Estate Recovery Shield: They can help guard against Medicaid’s estate recovery process.

Where They Differ:

1. The Two-Year Clawback Period: TOD Deeds come with a two-year “clawback” where the property can be reclaimed if your estate can’t cover debts. Lady Bird Deeds don’t have this.
2. Title Warranty Options: Lady Bird Deeds can include title warranties, while TOD Deeds can’t. This may impact title insurance for your beneficiaries.
3. Signing Authority: Only you can sign a TOD Deed, while a Lady Bird Deed can potentially be signed by someone holding your power of attorney if needed.
4. Recording Requirements: TOD Deeds must be recorded before death to be valid, while Lady Bird Deeds don’t have this recording mandate however, it’s still advisable to record it.

Which Deed Should You Use? A TOD Deed might be suitable if you want a straightforward transfer and can record the deed before passing. A Lady Bird Deed could be the way to go if you’re concerned about title issues, possible incapacity, or you’d prefer to skip the TOD Deed’s two-year claims period. The Bottom Line: While Lady Bird and TOD Deeds offer streamlined property transfers, the right choice for you depends on your unique needs and priorities. To ensure you make the best decision and stay within current legal guidelines, it’s crucial to seek advice from a Texas estate planning professional or real estate attorney. This professional guidance can save your loved ones from unnecessary stress and cost in the future. These steps can save your loved ones unnecessary stress and cost later. Disclaimer: This advice is for informational purposes only and does not constitute legal advice. Always consult a qualified attorney to discuss your specific situation. Good luck with your estate planning, Carol!

A: Dear OB: Thank you for your question. Medicaid offers various programs, including coverage for nursing home care, Community Attendant Services (CAS), and the STAR+PLUS Waiver, each with its own criteria. I assist families and individuals with long-term care needs, particularly Texas Medicaid, for nursing home care. It’s crucial to understand that Texas Medicaid for long-term care is distinct from Medicaid for disability, a point that can often be confusing. To be eligible for Texas Medicaid for long-term care, you must meet both medical and financial requirements, and these limits adjust if you’re married to account for the community spouse’s needs. If you’re single, the income limit for 2024 is $2,742 per month, and you can have no more than $2,000 in countable assets. However, if you’re married, the rules are a bit different. There are protections in place for the “community spouse” (the spouse who is not applying for Medicaid), allowing them to keep up to $148,620 of the couple’s assets. This safeguard is designed to prevent the community spouse from being left financially vulnerable while the other spouse qualifies for Medicaid, providing a sense of security during a challenging time. The application process can be complex, but our office is here to provide comprehensive support. We work closely with families, guiding them through each step and managing the Medicaid application process based on the financial information provided. This helps make sure everything is submitted accurately, giving you peace of mind that your loved one can receive the care they need and qualify for Medicaid benefits. If you’d like help navigating the Medicaid qualification application process for long-term nursing care for yourself or a loved one, please don’t hesitate to contact me. I’d be happy to assist you.

A: Dear Heartbroken Child: This is a general overview and does not establish an attorney-client relationship. It is not exhaustive and may not address all the requirements specific to your situation. A testator is a person who creates and signs a Will outlining how they want their assets and property to be distributed after their death. The Testator must be of legal age and sound mind to make a valid Will. In essence, the Testator is the individual whose wishes are expressed in the Will and who ensures that those wishes are legally documented and carried out according to their instructions after they pass away. Texas Probate Law has distinct procedures for probating a copy of a Will versus probating an original Will, as well as specific considerations for holographic (hand written) Wills. Probating a copy of a Will in Texas is permissible under certain conditions. Generally, Texas law requires that an original Will be presented for probate. However, if the original Will is lost or destroyed, a copy may be admitted to probate if the proponent can provide satisfactory evidence that the copy is a true and correct reproduction of the original. To probate a copy, the proponent must:

1. Prove the Original’s Existence: Demonstrate that the original Will existed and was in the Testator’s possession before it was lost or destroyed.
2. Provide Evidence: Present evidence that the copy is an accurate and complete reflection of the original Will. This may include testimony from witnesses who saw the original or other supporting documents.
3. Show No Revocation: Establish that the Testator did not revoke the original Will.

Probating an original Will is the standard procedure. The original Will must be filed with the court, and it must be signed by the Testator, and witnessed according to legal requirements. The process involves:

1. Filing the Original: Present the original Will to the probate court.
2. Validity of the Will: The court will review the Will to ensure it meets all legal requirements, including proper execution and lack of undue influence.
3. Probate Process: If the Will is valid, it will be admitted to probate, and the estate administration will proceed according to the terms of the Will.

Probating a Holographic Will (handwritten)

1. 1. Handwritten by the Testator: The entire Will must be written in the Testator’s handwriting. This includes all material terms such as distributions and appointments.
   2. Signed by the Testator: The Will must be signed by the Testator.
   3. Probate Procedure: The holographic Will must be submitted to the probate court, where it will be examined to ensure it meets the requirements. If it is deemed valid, it will be admitted to probate. Each type of Will has specific requirements and processes, and it’s essential to ensure all legal criteria are met to facilitate smooth probate proceedings.

A: Dear Confused in Keller: In Texas, when someone dies without a last will, the distribution of property depends on whether it is separate or community property. In your case, the Keller house, acquired during the marriage, is most likely considered community property. Since your husband died without a last will and had a son from a previous marriage, Texas intestate succession law requires that a portion of the estate, including the Keller property, be allocated to his child. Therefore, his son, from the first marriage, is entitled to a 50% share of the Keller house. You will retain a life estate in the property and have the flexibility to distribute your 50% interest as you see fit in your last will.