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Strategic Medicaid Planning Options in Fort Worth, TX

Mon, 20 Apr 2026 20:45:01 GMT

Strategic Medicaid Planning Options in Fort Worth, TX

Medicaid planning in Fort Worth, TX helps individuals structure their assets and income to qualify for Medicaid long-term care benefits while preserving wealth for family and maintaining financial security.

When Should You Begin Medicaid Planning?

Ideally, you should begin Medicaid planning several years before anticipating the need for long-term care, as Medicaid has a five-year lookback period for asset transfers.

Many people wait until a health crisis occurs, which severely limits planning options. Starting early gives you more strategies to protect assets legally. The five-year lookback period means Medicaid examines all asset transfers made during the five years before your application date.

Transfers made during this period can result in penalties that delay your eligibility. By planning ahead, you can position assets appropriately before the lookback period begins. This proactive approach protects more of your wealth while ensuring you meet eligibility requirements when care becomes necessary.

Even if you are already facing long-term care needs, planning options still exist. An experienced attorney can identify strategies appropriate for your timeline, though earlier planning always provides more flexibility and better outcomes.

What Assets Does Medicaid Count Toward Eligibility?

Medicaid counts most assets including bank accounts, investments, and second homes, but exempts your primary residence up to certain equity limits, one vehicle, and specific personal property.

Countable assets include cash, checking and savings accounts, stocks, bonds, mutual funds, certificates of deposit, and additional properties beyond your primary home. Medicaid also counts the cash value of life insurance policies exceeding certain thresholds. For married couples, the community spouse can retain a protected amount of assets while the applicant qualifies.

Exempt assets include your primary residence if you or your spouse lives there, though equity limits apply. One vehicle is exempt regardless of value, and personal belongings like furniture, clothing, and household goods do not count. Medicaid asset protection services in Fort Worth, TX help you understand which assets are countable and develop strategies to convert countable assets into exempt forms where legally appropriate.

How Do Miller Trusts and Qualified Income Trusts Work?

Miller Trusts or Qualified Income Trusts allow individuals whose income exceeds Medicaid limits to qualify by directing excess income into a special trust that pays care costs.

Texas has income limits for Medicaid eligibility. If your monthly income exceeds these thresholds, you would normally be ineligible regardless of your assets or medical needs. A Miller Trust resolves this by receiving your income and distributing it according to specific rules that satisfy Medicaid requirements.

The trust receives income sources like Social Security, pensions, and retirement distributions. It then pays allowable expenses including your care facility costs, a personal needs allowance, and potentially a maintenance allowance for your spouse. Only the amount remaining after these distributions counts toward Medicaid income limits, helping you qualify despite higher income.

These trusts must follow strict legal requirements to be valid. Improper setup or administration can result in disqualification from benefits, making professional guidance essential when establishing and managing a Miller Trust.

What Local Considerations Affect Fort Worth Medicaid Planning?

Fort Worth's range of care facilities, from basic nursing homes to premium assisted living communities, influences planning decisions as costs vary significantly across options.

The area offers diverse long-term care settings with different cost structures. Understanding local costs helps you determine how much asset protection you need and whether Medicaid benefits will sufficiently cover your preferred care setting. Some facilities accept Medicaid patients while others do not, affecting your options.

Fort Worth's proximity to multiple counties means you may access care facilities in different jurisdictions, each with slightly different procedures and timelines. Medicaid planning services in Fort Worth, TX account for these regional variations to position you for the best possible care options. The area's growing senior population also means facility availability changes, making it important to plan flexibly.

Thoughtful Medicaid planning protects your financial legacy while ensuring you receive necessary care. Charles Kennedy P.C. offers guidance tailored to your assets, health status, and care preferences. Explore your planning options with experienced legal support today.

Comprehensive Elder Law Guidance in Grand Prairie, TX

Fri, 20 Mar 2026 20:37:31 GMT

Comprehensive Elder Law Guidance in Grand Prairie, TX

Elder law in Grand Prairie, TX focuses on legal issues affecting older adults and their families, including healthcare decisions, financial management, estate planning, and protection from exploitation and abuse.

Which Legal Issues Do Elder Law Attorneys Handle?

Elder law attorneys address estate planning, healthcare directives, guardianship, Medicaid planning, Social Security matters, age discrimination, elder abuse, and housing issues affecting seniors.

As people age, they face unique legal challenges requiring specialized knowledge. Healthcare planning becomes critical, including advance directives that specify medical treatment preferences and designate decision-makers. Financial management issues arise when cognitive decline affects someone's ability to handle their affairs safely.

Elder law also encompasses protection from financial exploitation, which unfortunately targets older adults disproportionately. Attorneys help establish safeguards and pursue remedies when exploitation occurs. Housing matters, including nursing home rights and age-restricted community issues, also fall within elder law scope.

Additionally, elder law attorneys assist with benefit qualification, veterans benefits, Social Security disability appeals, and tax matters specific to retirees. They coordinate with financial planners, healthcare providers, and family members to create comprehensive plans addressing all aspects of aging.

How Does Healthcare Planning Differ from General Estate Planning?

Healthcare planning specifically addresses medical decision-making and care preferences, while general estate planning focuses primarily on asset distribution after death.

Healthcare planning documents include living wills that specify end-of-life treatment preferences and medical powers of attorney that designate healthcare decision-makers. These documents guide families and medical providers when you cannot communicate your wishes yourself. They address issues like life support, pain management, organ donation, and preferred care settings.

Healthcare planning services in Grand Prairie, TX ensure your medical preferences are documented clearly and legally. General estate planning focuses on property distribution, guardian designation for minor children, and minimizing taxes and probate. While both are important, healthcare planning provides guidance during your lifetime, whereas traditional estate planning takes effect after death. Comprehensive elder law combines both elements into an integrated strategy.

Do Older Adults Need Special Protection from Financial Exploitation?

Yes, older adults face heightened risk of financial exploitation from scammers, dishonest caregivers, and sometimes even family members, making legal protections essential.

Cognitive decline can impair judgment, making seniors vulnerable to manipulation. Scammers specifically target older adults with fraudulent schemes involving fake charities, investment fraud, and romance scams. Even trusted individuals sometimes exploit access to finances for personal gain.

Legal protections include durable powers of attorney with built-in safeguards, such as requiring multiple agents or mandatory accounting. Trusts can provide oversight by naming professional trustees or requiring co-trustees. Regular monitoring of accounts and establishing alert systems for unusual transactions also help prevent exploitation.

When exploitation occurs, elder law attorneys help families pursue legal remedies including recovering stolen assets, removing dishonest agents or guardians, and involving law enforcement when appropriate. Education about common scams and warning signs also empowers families to protect vulnerable loved ones.

What Elder Law Concerns Are Specific to Grand Prairie Residents?

Grand Prairie's diverse community includes many first-generation immigrants whose cultural perspectives on elder care may differ from typical American nursing home models.

Cultural values often emphasize family caregiving over institutional care, affecting planning decisions and available resources. Elder law planning must respect these preferences while ensuring proper legal protections exist. Language barriers can complicate healthcare communication and legal document preparation, requiring culturally sensitive approaches.

The area's mix of urban and suburban neighborhoods provides varied senior living options from independent retirement communities to skilled nursing facilities. Elder law services in Grand Prairie, TX help families navigate these choices while considering cultural preferences, budget constraints, and care needs. The region's healthcare infrastructure also affects access to specialized geriatric services and support programs that enhance quality of life for older adults.

Proper elder law planning ensures your later years are marked by dignity, security, and respect for your wishes. Charles Kennedy P.C. provides compassionate, knowledgeable guidance for older adults and their families. Start planning for your future with experienced legal support.

Guardianship Proceedings and Representation in Irving, TX

Fri, 20 Mar 2026 20:37:29 GMT

Guardianship Proceedings and Representation in Irving, TX

Guardianship in Irving, TX establishes a legal relationship where a court appoints a responsible person to make personal and financial decisions for someone unable to do so themselves due to age or incapacity.

When Is Guardianship Necessary for an Adult?

Adult guardianship becomes necessary when someone cannot make or communicate sound decisions about their personal care, finances, or medical treatment due to disability, illness, or cognitive decline.

Courts only establish guardianship when less restrictive alternatives are insufficient. If someone can manage their affairs with assistance from powers of attorney or supported decision-making, guardianship may not be necessary. However, when someone lacks capacity to execute these documents or poses a danger to themselves, guardianship provides essential protection.

Conditions prompting guardianship include advanced dementia, severe intellectual disabilities, traumatic brain injuries, and serious mental illness. The process requires medical evidence establishing the person's incapacity. Courts prefer limited guardianships that restrict only those rights the person cannot exercise, preserving as much autonomy as possible.

Guardianship is serious because it removes fundamental rights. Courts scrutinize applications carefully, requiring clear evidence that guardianship serves the proposed ward's best interests and that no less restrictive option will suffice.

What Are a Guardian's Responsibilities and Limitations?

Guardians must make decisions in the ward's best interest, maintain regular contact, manage finances responsibly, report to the court regularly, and respect the ward's preferences when possible.

A guardian of the person makes decisions about living arrangements, medical care, and daily activities. They ensure the ward receives appropriate care, lives in safe conditions, and has their basic needs met. However, guardians cannot make decisions that violate the ward's rights without specific court authorization, such as consenting to experimental medical treatments or involuntary mental health commitments.

A guardian of the estate manages financial affairs including paying bills, managing investments, and protecting assets. Guardianship services in Irving, TX help appointed guardians understand their duties and comply with legal requirements. Guardians must keep detailed records, avoid conflicts of interest, and never use the ward's assets for personal benefit. Courts require annual accountings showing all financial transactions and the current status of the ward's property.

How Does the Guardianship Application Process Work?

The process begins with filing an application in probate court, followed by a court investigation, medical evaluation, hearing where evidence is presented, and court decision establishing guardianship if warranted.

Someone files an application explaining why guardianship is necessary and proposing a suitable guardian. The court appoints an attorney to represent the proposed ward's interests and may order an independent evaluation. The court investigator interviews the proposed ward, proposed guardian, and family members, then files a report with recommendations.

At the hearing, the proposed ward has the right to attend, present evidence, and object. The applicant must prove by clear and convincing evidence that guardianship is necessary and that the proposed guardian is suitable. The court considers the proposed ward's preferences and all available alternatives before deciding.

If guardianship is established, the guardian must take an oath and may need to post a bond before receiving legal authority. The court issues letters of guardianship authorizing the guardian to act on the ward's behalf within the scope of authority granted.

What Guardianship Considerations Apply Specifically to Irving Families?

Irving's diverse population means guardianship proceedings often involve multi-generational households and cultural traditions that influence preferred caregiving arrangements and decision-making structures.

Many Irving families include multiple generations living together, which affects guardianship by providing built-in support networks but sometimes creating disputes about who should serve as guardian. Cultural expectations about family roles may differ from legal standards, requiring sensitive navigation of these differences.

The area's economic diversity also affects guardianship, as financial resources determine available care options and whether professional guardianship services are needed. Power of attorney services in Irving, TX can sometimes prevent guardianship need by establishing decision-making authority before incapacity occurs. Courts increasingly recognize cultural competency as important in guardianship, seeking guardians who understand and respect the ward's cultural background and preferences.

Guardianship provides essential protection for vulnerable individuals while respecting their dignity and preferences. Charles Kennedy P.C. offers experienced representation in guardianship matters for proposed guardians and those seeking alternatives. Discuss your situation with knowledgeable legal counsel today.

Professional Estate Administration Support in Dallas, TX

Fri, 20 Mar 2026 20:37:28 GMT

Professional Estate Administration Support in Dallas, TX

Estate administration in Dallas, TX involves the comprehensive process of managing a deceased person's financial affairs, distributing assets to beneficiaries, paying valid debts, and fulfilling all legal requirements under court supervision or trust provisions.

What Tasks Must an Executor or Administrator Complete?

Executors must locate and secure assets, notify beneficiaries and creditors, pay debts and taxes, maintain property, manage investments, distribute assets, and provide court accountings.

The first steps include locating the will, securing valuable property, and identifying all assets from real estate to bank accounts to personal belongings. Executors must obtain death certificates, notify financial institutions, and protect property from loss or damage. They apply for probate court authority or, if assets are in trust, begin trust administration.

Executors then notify all beneficiaries named in the will or trust and publish notices to creditors as required by law. They must evaluate creditor claims, paying valid debts from estate funds while rejecting improper claims. Tax obligations include filing final income tax returns and, if the estate exceeds exemption thresholds, estate tax returns.

Throughout administration, executors maintain detailed records of all transactions, provide periodic accountings to beneficiaries, and ultimately distribute remaining assets according to the will or trust terms. They must act impartially, avoid conflicts of interest, and make prudent decisions that protect estate value.

How Do Estate Taxes Affect Administration?

Federal estate taxes apply only to estates exceeding the exemption amount, currently over twelve million dollars, but state inheritance taxes and income taxes may also apply depending on circumstances.

Most estates do not owe federal estate taxes due to the high exemption threshold. However, the estate itself may owe income taxes on earnings generated during administration, such as interest, dividends, and rental income. Beneficiaries may also owe income taxes on distributions from retirement accounts or other income-generating assets.

Texas does not impose state estate or inheritance taxes, which simplifies administration compared to some states. Still, proper tax planning during administration can minimize overall tax burdens. Estate administration services in Dallas, TX include guidance on tax obligations and strategies to preserve estate value. Executors who fail to pay required taxes can face personal liability, making professional guidance valuable for tax compliance.

Can Beneficiaries Challenge Estate Administration Decisions?

Yes, beneficiaries can object to executor actions they believe violate fiduciary duties, such as excessive fees, improper asset management, or unfair distributions favoring certain beneficiaries.

Executors owe fiduciary duties to all beneficiaries, requiring them to act in good faith, avoid self-dealing, and treat all beneficiaries fairly according to the will or trust terms. When executors breach these duties, beneficiaries can petition the court for remedies including removing the executor, surcharging them for losses caused by misconduct, or requiring additional accountings.

Common grounds for challenge include excessive compensation, conflicts of interest, failure to communicate with beneficiaries, improper investments that lose estate value, and unreasonable delays in distribution. Beneficiaries should first attempt to resolve concerns directly with the executor, but legal intervention becomes necessary when executors refuse to address legitimate problems.

Courts take fiduciary breaches seriously because executors hold a position of trust. Documented evidence of misconduct, such as unexplained expenditures or asset transfers benefiting the executor personally, can result in removal and financial penalties.

How Does Dallas's Urban Environment Affect Estate Administration?

Dallas estates often include diverse asset types from business interests to investment properties across multiple locations, requiring sophisticated management and coordination with professionals in various fields.

The metropolitan area's strong economy means many estates include complex assets like closely held businesses, commercial real estate, and substantial investment portfolios. Valuing and managing these assets requires specialized expertise, and executors often need to engage appraisers, accountants, and business advisors.

Dallas's size and geographic spread can complicate asset identification, particularly when deceased individuals owned property in multiple neighborhoods or suburban areas. Probate law services in Dallas, TX help executors navigate these complexities while meeting legal deadlines and court requirements. The area's dynamic real estate market also affects decisions about selling versus retaining property, as timing can significantly impact values and beneficiary inheritances.

Professional estate administration ensures all legal requirements are met while preserving estate value for beneficiaries. Charles Kennedy P.C. provides experienced guidance for executors and administrators managing estate settlement responsibilities. Experience confident estate administration with knowledgeable legal support.

New Probate Procedure: Conversion of Muniment of Title to Administration

Mon, 26 Jan 2026 15:16:13 GMT

For persons who have a Will that needs to be probated to establish ownership of an asset, sometimes filing the Will as Muniment of Title is a simpler and faster process. Muniment of Title is only available when the person who died had no debts that were not secured by real property, such as a mortgage, and has no need for authority through the court to collect assets.

It is not uncommon for the family to find out that an asset they though would be easy to collect is difficult. This could happen because the insurance company or bank insists that the person collecting needs Letters Testamentary or they find out that they need to sue someone to collect damages due to the person who died. Previously, that mistake could not be corrected if they did not find out within thirty days of the judgment being entered.

Effective on September 1, 2025 a new procedure is available to “fix” that problem. It is now possible to convert from a judgement granting muniment of title to a judgment that allows an interested person to obtain Letters of Administration. This allows the person appointed to collect assets, sue and be sued on behalf of the estate and to pay, compromise and defend against previously unknown debts.

Normally an administration must be opened in Texas within four years of a person’s death. This is true in this instance also.

If I can help explain what procedure is best or help probate a Will please contact my office at 817-795-8843 or by email .

MERP and Probate

Mon, 26 Jan 2026 15:11:02 GMT

Medicaid Estate Recovery Program is a complicated program most commonly collected from beneficiaries of persons who received medicaid benefits in a nursing home (SNF or skilled nurshing facility) when they patient did not have a lawyer help them with applying for benefits. MERP is best avoided by planning before the patient dies.

Medicaid has many rules that permit assets to be transferred, converted into protected assets or carefully spent to qualify a nursing home patient for Medicaid. When limited or no planning is done or an assets is missed by the applicant and the State there will sometimes be an asset left in the “probate estate” after the patient dies.

The State of Texas will have a company it hires send out required notice letters to the spouse, agent or children of the Medicaid patient demanding payment and giving notice of who might have a legal reason to not pay the claim for Medicaid funds spent. There is a strict administrative process the State wants the heirs or beneficiaries to follow. If agreement cannot be reached in the administrative process as to how much the State is due from the probate estate then a dependent administration can be filed in the proper court with probate authority in the county where the patient died or resided. Where to file is an issue of its own.

The only two ways to limit the power of the State to collect the amount the State claims is due is by the administrative procedure or a Dependent Administration. When the property requirements are met a Probate Court has the authority to deny the State the right to collect for reimbursement of funds spent. I go into the claims process in a Dependent Administration in another article on this website.

If I can help explain what procedure is best or help probate an estate please contact my office at 817-795-8843 or by email .

Probate Procedures, which to choose?

Mon, 26 Jan 2026 15:07:40 GMT

There are several different probate procedures that are available when someone dies based on whether a person has a Will, how much authority someone needs, and whether the people with the right to the property ( beneficiaries or heirs) can agree on what needs to be done.

If the person who died had a valid Will with no disputes among the beneficiaries then the most likely procedure is to probate the Will for Letters Testamentary. This can be done as an independent administration or as a dependent administration.

An independent administration allows the executor to act without court supervision, except for the requirement to file an Inventory, give notices to creditors including the posting of a published notice in a local newspaper, and filing an affidavit with the court stating all persons entitled to notice received the required notice. This will usually be the cheapest and fastest means to manage the collection of assets, payment of debts, and distribution of assets to the beneficiaries. The executor will also be responsible for filing any required tax returns.

A dependent administration is one in which the person appointed only has the authority granted by statute, which is extremely limited. All other actions require that the Administrator must request in writing permission to perform a necessary act. Sometimes a hearing will be required. Required permissions will include sale of real property, sale of personal property, hiring professionals to perform services, such a personal injury attorneys, realtors, CPAs and other persons an administrator might need to hire and pay with estate funds. The Adminstrator is responsible to file an annual account for audit and a final account to be approved by the Court and served on the beneficiaries.

Naturally, this is a slower and more expensive process. It has the advantage that it enables the administrator to use court authority to eliminate debts by use of probate procedure not available in an independent administration. It also provides protection to the administrator from being held responsible for harm caused by actions approved by the Court. As an example, some beneficiaries might object to a property being sold to pay debts. A beneficiary will be required to object to the application to sell the property before it is sold instead of suing after the property was sold.

A major difference between independent and dependent administration is how creditor claims are processed. This will be treated more fully in a separate article.

An independent administration is only available when it is permitted in a Will or when all the heirs or beneficiaries agree to an independent administration.

Further, an administration is only available when administration is necessary, such as an asset needs to be collected by a person appointed by the Court, there are debts to pay or compromise, or litigation to be dealt with. The need for administration is usually an easy point to prove.

If there is a valid Will and no administration is needed then a Muniment of Title is usually appropriate.

If there is no Will, then a determination is needed as to whether administration through the Court is needed or useful. If no administration is needed then a decision whether to file an Affidavit of Heirship outside the Court is best or a full Determination of Heirship in Court is needed. This is often decided by how much proof the company holding the property will require.

If I can help explain what procedure is best or help probate an estate please contact my office at 817-795-8843 or by email .

What is a Ladybird deed?

Wed, 09 Oct 2024 20:48:14 GMT

A “Ladybird Deed” is used to protect a house from a Medicaid claim after a patient on Medicaid dies. Law School professors call them contingent, defeasible deeds. This means that the homeowner transfers his house by deed to his children or whomever he wants to have the house after his death. However, the deed has some very big “but only ifs”. The homeowner keeps the right to sell the house, to take out a mortgage on the house, to lease the property or just do whatever he or she wants to do with the house.

The person giving the house is called a “grantor”. The person(s) receiving the house is called a “grantee”. The grantee does not receive ownership of the house until the grantor dies. The grantee only gets ownership if the grantor does not sell the house or otherwise dispose of it. All in all it is very simple.

There are some problems with Ladybird deeds. Because these deeds are used so rarely many title companies do not like them and throw up road blocks to granting title insurance on the sale of a house by the grantee. Elder law attorneys in the State Bar and in the National Academy of Elder Law Attorneys (NAELA) are doing much to provide information to the Real Property section of the Bar to create greater understanding and acceptance of Ladybird deeds.

Many Texas counties do not yet have front line staff that understands what a Ladybird deed is. It is often necessary to correct line staff denial of a homestead exemption by calling the supervisors to correct the misclassification of the deed.

Dealing with Creditors

Wed, 09 Oct 2024 20:46:35 GMT

It is not unusual that an estate that seems to have an overwhelming amount of debt turns out to have enough assets to pay the valid debts and distribute funds to the heirs or beneficiaries.

The process for dealing with a creditor varies based on the type of administration and the type of debt. A Dependent Administration is an administration in which all actions by the administrator must be approved by the Court.

An independent administration means that the Judge has little or no control over the actions of the administrator except for admitting the estate to probate, qualifying the personal representative of the estate (usually a person named in a will– who is called an executor) and approving the Inventory, Appraisement and List of Claims.

Assuming the Administrator in a Dependent Estate gives proper notice to the creditor, the creditor only has four months to file its claim once it is given notice of the administration by certified mail. Failure to file its claim with the Court Clerk within four months of notice by certified mail is also a bar to later assertion of the claim for payment.

In a Dependent Administration a creditor must file its claim with the Court Clerk and serve it on the attorney for the administrator. The Administrator has 30 days to allow it or deny it. If it is not allowed, it is automatically deemed denied. At that point the creditor has 90 days to file suit in the probate court or the claim is barred for failure to prosecute the claim in a timely manner.

The claim must be verified (sworn) and based on personal knowledge with all credits, offsets, charges, payments set forth. Failure by the creditor to provide adequate information to determine the validity of the debt is a good reason to deny the claim. If the creditor does not have the required information it cannot prove its claim at trial.

One point that secured creditors frequently forget is that the creditor is forced to choose between asserting its claim to the secured asset on which its lien is based or the right to payment of the claim and waiver of the lien on the asset.

In other words, do not let the debt collector take the car before the administration is opened. If they take the car beforehand the creditor will come back for payment of the loss on the sale of the car. If the creditor takes the car during probate that is all it gets, it loses its right to be paid on any loss on sale of the vehicle.

The process in an independent administration is not as formal. The claim does not have to be presented through the Court Clerk. There is disagreement as to whether the four month bar to the claim after notice applies. This is definitely one area of the law where it pays to consult your attorney and to follow the attorney’s advice.

The amount and type of debt is an important factor in choosing which type of administration will be used. I will write about how “exempt” assets are treated in probate in a later article.

Who has the Authority or Can he really do that?

Wed, 09 Oct 2024 20:44:17 GMT

It is easy to forget or not realize some very important points about probate. Probate is a process that only occurs in Court.

A Will is just a piece of paper until someone dies and a Probate Court decides that it is valid. Once in probate, only the personal representative of the Estate has the authority to make decisions about property in the estate. Sometimes even the personal representative (also called executor or administrator sometimes) does not have the authority until the Judge says he does.

An estate is not in “probate” until an application is made to a Court with the proper authority and a person is appointed to manage the estate. If you are named as Executor in a Will you have no authority to do anything until a Judge says you do. So to be safe, take the Will to an attorney and find out what needs to be done.

This means that frequently no one should pay bills outside the probate process, release control of assets to a creditor or third party or make other decisions about the estate until a competent attorney has been consulted and a probate estate opened.

To do any of the above actions outside probate could create financial liability to the creditors and/or beneficiaries of the estate by the person acting without authority. If you are not the Executor or Administrator, even if you are named as Executor in a Will but have not yet been to Court, do not take actions that cannot be changed later.

Only the person named by the Court to manage an estate has the authority to make decisions about an estate. Often the Executor will only make those decisions after careful consultation with an attorney, discussion with the beneficiaries and sometimes not until the issue is presented to a Court.

If you are the named executor and the only beneficiary you can probably act without liability to anyone but a creditor, but acting without legal advice could cost you money you do not have to spend.

If you are appointed as the personal representative of an estate you have special duties that are called fiduciary duties to the heirs/beneficiaries of the estate. You must be fair to all of the beneficiaries; you must be loyal to their interests–even possibly to the harm of your own interests; you must provide all necessary information to the beneficiaries so that they can make any necessary decisions about their interests; and you must be competent in managing the estate. These fiduciary duties are often what makes being an executor so difficult because your duty to one person may conflict with your duty to someone else.

Creditors also have rights regarding assets within an estate and the claims must be dealt with according to the Texas Estates Code. It is not uncommon that a creditor will make a demand that it be paid when if payment is left to the probate process it will be denied payment because another party will have superior right to the proceeds or assets of the estate.

Do not assume that because someone is an heir or believed to be an heir or beneficiary that the person has the right to do things with assets of the estate outside the probate process. Hopefully, this provides more light than heat. The blogs about creditors should be read with this one to have a better understanding of the pitfalls a personal representative faces.

Why Probate?

Wed, 09 Oct 2024 20:42:50 GMT

I am often called and asked if someone needs to probate a Will. The legal answer is that the person named as executor has a duty to present the will for probate by the Probate Court.

The practical answer depends on the circumstances. A Will has several functions or purposes. The primary purpose for most people is to pass ownership or title to the persons named in the Will. By presenting the Will to a Court the Will is determined to be valid. A Will has no legal effect until a Court makes the required determinations that it was properly signed and witnessed, makes a full distribution of the estate, is accepted by the Court as valid and decides if there is a need for administration.

This last phrase is the real question that most people are asking. One reason to present the Will for probate is that there is land in Texas that is conveyed by the Will, or that there is other property that the executor/administrator can collect and distribute more easily than the individual beneficiaries (heirs). Stock is one such asset. Sometimes a Will can be probated without the necessity of an administration, merely a simple hearing and everything is done.

Sometimes the collection of the assets and the sale of those assets is more simply done by having one person to be responsible for doing the various tasks that need to be done. Instead of five or six people attempting to work out their schedules to sign documents, meet the various attorneys, accountants, realtors, contractors and other persons and agree on the price, etc. the executor makes the decisions and gets the work done so the money and other property can be distributed.

Another reason to probate is that if the Will is not probated the property passes to persons other than those named in the Will. If there is no Will, Texas has a law that defines who receives the dead person’s property. These persons are called “heirs”. This determination can become very complicated and expensive. Sometimes the heirs and beneficiaries are the same. If the person who died was married more than once the results are frequently different.

A third reason to probate is because there a debts owed that need to be paid out of the estate. Frequently many of the assets owned by the person who died ( this property is called the estate) can be protected from creditors as “exempt” property by use of the Texas Estates Code. A “Dependent” Administration is a very effective form of asset protection.

This is not a complete explanation, but hopefully it gives you a good idea of the information that must be considered when deciding if probate is necessary or not. It is usually a good idea to consult an attorney experienced in probate to find out the best choice.

Death, Debt and the Surviving Spouse

Wed, 09 Oct 2024 20:40:51 GMT

Frequently the most expensive time in a person’s life is the last few months of life. Few of us stop to consider the high cost of medical care, including nursing care, that often piles tens of thousands of dollars of debt on a family. These debts combined with the high cost of a funeral, preexisting debts and the emotional devastation of a prolonged illness or sudden death can overwhelm family members.

The emotional devastation is hard enough to handle without having to deal with creditors who may have little, if any, consideration of the family financial and emotional situation. Fortunately, in Texas, the Estate statutes provide substantial protections to a surviving spouse and minor children.

It is critical that the spouse consider his or her budget and allocate funds to the most necessary expenses. This may seem obvious, but the surviving spouse may also be suffering from health issues that prevent him or her from thinking clearly. Often, the spouse who dies first is the spouse who took care of the family finances and the survivor may not have complete knowledge of the assets, debts and finances.

Creditors may demand that a surviving spouse pay for a debt without consideration of whether the spouse has any legal duty to pay the debt. Debts are a contractual matter and the survivor may have no contractual responsibility to pay many of the dead spouse’s debts. The only responsibility may be to pay from assets within the estate that are not “exempt”. Exempt assets are those assets that may not be taken to satisfy a judgment by an unsecured creditor. The list of “exempt” assets may be found in the Texas Property Code Sections 41 and 42. You will normally see the sections written as Tex. Prop. Code §41.001 et seq. (Meaning each of the following sections in Subchapter 41 concern homestead law).

A creditor is secured if the contract provides that an asset may be taken if the loan is not paid. Usually a secured lender will have provided the original funds to purchase the asset. An oversimplified list of exempt assets includes the home, one car for each person in the family who can drive, most items within the home such as furniture, furnishings, clothing, dishes, food and lawn care equipment. Pensions, life insurance, social security checks and IRA accounts are also protected to one extent or another. The exempt property law for Texas differ from those of other states and the Federal Bankruptcy exemptions. You need to consult with an experience attorney if these type of issues arise.

Sometimes a creditor or it’s agent will demand payment in a manner that is harassing and abusive or by making statements as to what it can legally do that are false. Creditors do not have the right to call you multiple times a day, to make statements about the debt to anyone who is not on the contract (except for authorized agents) to threaten imprisonment or arrest, to threaten to take assets that are not actually security for the debt, to threaten to garnish your paycheck, social security check or other sources of income. If the creditor or it’s agent did any of these actions please contact me or an experienced consumer attorney.

There are many options on how to proceed in probate. One option functions to an extent like a bankruptcy. In a dependent administration creditors are required, when provided proper notice, to file claims with the administrator. The administrator can require proper proof that the debt is valid. Often creditors fail to file a claim or to present the claim correctly.

The Texas Property Code and Texas Estates Code work together to permit the surviving spouse to choose to live in the family homestead for life or minor children until adults. This is subject to the duty to pay the property taxes, maintain the property and pay any mortgage on the property. If other persons own an interest in the home they may have a duty to pay a proportionate part of the principal on the mortgage. The spouse can also set aside certain exempt assets including a car and the household furnishings. The survivor and/or minor children may be to set aside a fund of cash equivalent to one years support depending on the resources otherwise available to the survivor. These exempt assets can be set aside to the surviving spouse or minor children even if the Will provides for a different distribution.

As in bankruptcy, debts are classified as to which debts must be paid according to a set statutory priority. In addition, many assets are not required to be available to pay debts as explained above. Secured creditors such as mortgage lenders and car lenders can be required to choose between taking the asset or accepting payment of the debt if the survivor is not able to pay the debt.

Creditors may also be required to wait for at least six months once the estate is in administration before requiring possession of the property. This is a very complex area of law. Some of the above rights are available only in a probate proceeding, other rights attach even outside probate. For an understanding of how the law might affect you please call me for additional information at 817-795-8843.

Guardianship Law Changes and Disability

Wed, 09 Oct 2024 20:39:05 GMT

It is old news that we expect many more people to need help due to dementia over the next decade. One of the speakers at the 2016 Advanced Guardianship course noted that the number of guardianships in Texas has increased 60% since 2011. There has not been a similar increase in the number of Probate Judges and staff. This increase is not sustainable without change. The legislature is going to resist adding courts or court staff.

Guardianship is more difficult to obtain now. The Courts and the Law commentators are stressing that alternatives other than guardianship must be considered and eliminated before a guardianship can be created. The information provided to the Court (pleadings) has just gotten much more specific.

An applicant must state that lesser alternatives to guardianship have been considered and are not adequate to resolve the problems in regard to the proposed Ward. A separate article is being written on this topic.

The local probate courts have always been strict about requiring the statutory proof before granting guardianship over a person. I expect that the evidence is going to be parsed even more closely. The Courts do not have the resources to supervise the likely tsunami of incapacitated persons that will need help.

A ward now has a bill of rights that must be read to him by the Attorney Ad Litem appointed by the Court to represent him. A copy of the Bill of Rights is uploaded concurrently with this article. § 1151.351 .

Three that stand out are:

15) that the Ward has the right to privacy in personal matters;

16) that the Ward has the right to confidential, private communications and visits with persons of the Ward’s choice; and

(20) to be informed of the name, address, phone number, and purpose of Disability Rights Texas, an organization whose mission is to protect the rights of, and advocate for, persons with disabilities, and to communicate and meet with representatives of that organization; ( the Ward has the right to contact the Court and other organizations also.

Wards are going to be given more opportunities to contact government and non-profit agencies to prove failures of guardians to provide proper care, breaches of civil rights lack of contact.

If these rights are enforced nursing homes (skilled nursing facilities) will forced to change how they treat patients. I will also post a patient’s bill of rights that is largely ignored

Changes in Probate Law: Creditors Win

Wed, 09 Oct 2024 20:37:19 GMT

CHANGES IN PROBATE LAW: CREDITORS WIN SURVIVING DIVORCEES LOSE AND SMALL ESTATE AFFIDAVIT LIMIT INCREASED

There are several technical changes that will be noticed more by the lawyers who practice probate. Possibly the most important change to the ordinary Texas beneficiary is a change to how non-probate assets are treated. Beneficiaries of multi-party accounts, think Payable on Death and Joint Survivorship bank accounts must contribute to the payment of federal estate taxes and to the debts of the estate. The most likely demand from survivorship beneficiaries will be (B) if other assets of the estate are insufficient, amounts needed to pay debts, other taxes, and expenses of administration, including statutory allowances to the surviving spouse and minor children The Estate executor or administrator can pursue either the payee or a person who caused funds to be paid from a multi-person account. The personal representative of the Estate is not required to receive a demand from the decedent’s spouse or a creditor before having a duty to pursue such reimbursement to the probate estate. Previously, the personal representative had no duty to pursue such amounts until a demand was made on the representative. This action must be pursued within two years of the decedent’s (person who died) death.Gifts to Divorced Spouses Voided Multiple changes were made to the Estates Code to remove payments to divorced spouses under non-probate transactions created prior to divorce. This change is being consistently implemented in each of the relevant areas of law: Statutory Durable Powers of Attorney, Health Care Powers of Attorney, Wills, and in this instance revocable trusts. My translation of the language below is that any gift to a spouse prior to divorce in a revocable trust is voided by the divorce or annulment. In similar fashion any appointment in a Trust of a spouse later divorced (or annulled) to a position of fiduciary responsibility is voided. (a) The dissolution of the marriage revokes a provision in a trust instrument that was executed by a divorced individual as settlor before the divorced individual's marriage was dissolved and that: (1) is a revocable disposition or appointment of property made to the divorced individual's former spouse or any relative of the former spouse who is not a relative of the divorced individual; (2) revocably confers a general or special power of appointment on the divorced individual's former spouse or any relative of the former spouse who is not a relative of the divorced individual; or (3) revocably nominates the divorced individual's former spouse or any relative of the former spouse who is not a relative of the divorced individual to serve: (A) as a personal representative, trustee, conservator, agent, or guardian; or (B) in another fiduciary or representative capacity.Joint revocable trusts are common in Texas. If the divorce court fails to terminate a joint revocable trust the law now provides that when one of the two Settlors dies the Trustee is to divide the Trust property as attributable to the property contributed by the respective Settlors. Usually the property is Community property and one half will go to the estate of the Settlor who died and the other half to the surviving divorced spouse (Settlor). A Settlor is a person who signs a Trust agreement and usually provides the assets placed into the Trust. Separate property will be allocated to the spouse who owned it.However, (e) This section does not apply if one of the following provides otherwise: (1) a court order; (2) the express terms of a trust instrument executed by the two divorced individuals before their marriage was dissolved; or (3) an express provision of a contract relating to the division of the marital estate entered into between the two divorced individuals before, during, or after their marriage.Yet another Estate Code section is amended to void beneficiary designations to a divorced spouse or family member of a divorced spouse in a multi-party account.Finally, yet another statute voids gifts to a spouse who is later divorced from a Decedent. A decedent is a person who died and whose property (estate) is placed before a probate court by an application on a Will or for determination of heirs. An heir is a person who is found based on evidence in Court to be the nearest living relation to a decedent. Only certain relationship qualify under the Estate Code to be an heir.Small Estate AffidavitsA small estate affidavit is a simplified method of proving ownership of assets (passing of title). It applied to estates of $50,000.00 or less, not including the value of the homestead or non-probate assets. The limit is increased to $75,000.00 as of September 1, 2017.

Why Do I Need to Probate A Will?

Wed, 09 Oct 2024 20:34:07 GMT

Sometimes a person will come in and say they own a house because Mom left it to them in her Will, and then tell me the Will was never probated. Boom! The Will must be placed into the Court record before it is effective to transfer title (ownership) of property. Failure to probate a Will could result in you not getting title to the property given to you in the Will.

HOW DO I PROBATE A WILL?

A Will is probated when it is offered to a Court with “Probate” authority and the Judge accepts it as valid by signing an Order admitting it to probate. The Will once accepted as valid is used to determine who owns the property.

DO I REALLY NEED TO HIRE AN ATTORNEY?

Probate Courts do not permit a person who is not licensed as an attorney to represent anyone else. You have a right to represent yourself, but no one else. It is wise to consult a licensed attorney to determine the best alternative. Many factors such as the existence of debt, type of assets to be collected, how well the heirs or beneficiaries cooperate and other issues affect which legal options are available.What happens if a Will is not probated?If a Will is not offered to a Court within four years of the Will signer’s death, it might never be admitted to probate. A person who is at fault for not offering the Will for probate is not allowed to offer it after four years from the date of the Will signer’s (Testator) death. Most Courts only hold the named executors as responsible. An executor is the person named in the Will to offer the Will for probate and take care of the management of the probate estate: collecting assets, paying creditors and distributing the proceeds to the named beneficiaries. Sometimes people name persons who would not be “heirs” as the persons to receive their property. In most situations an heir is a spouse, child or grandchild of a person who died. Determining who the heirs are can be complicated and there can be multiple heirs.

HOW DO I KNOW IF A WILL IS VALID?

State law set out specific elements that must be met for a Will to be valid. A Will must be in writing; it must be witnessed by two people, the Will signer must be age 18 or older, mentally competent and signing the Will without duress. There are other requirements that must be met.Who was present when the Will was signed is important, who was not present is important, the circumstances surrounding the time of the signing are important. Having a beneficiary sign as a Witness to the Will denies the planned gift to the beneficiary.

STILL HAVE QUESTIONS?

You can find some answers on my Probate FAQs page. If you still have questions about Wills, probate, or estate administration I can help. Call 817-697-2507 to schedule an appointment.This is not meant to be legal advice. All of the answers above are meant to be generic and are for Texas only. Laws vary from State to State and an attorney in the State where the probate is needed should be consulted.

Sued for debt? These 5 assets are protected in Texas

Wed, 09 Oct 2024 20:27:09 GMT

Texas has placed protections against creditors for married couples and families with minor children in our law. The protections are both by statute and in our Constitution. First, certain types of property are given a special status as “exempt” from creditor claims. Except for claims asserted by the Federal government, property taxes, “Repair liens”, or secured liens, exempt assets cannot be taken by a creditor. Secured liens involve the purchase of the asset being financed by the creditor and require the correct paperwork be signed as part of the purchase to permit the creditor to seize the asset or foreclose

WHAT ASSETS CAN BE PROTECTED?

1. YOUR CAR

Texas protects one vehicle for each family member who can drive.

2. YOUR HOME

Texas law offers broad protection to your homestead. You can protect up to 10 acres inside town and up to 100 acres outside of town.

3. THE STUFF IN YOUR HOME

The normal contents of the home are protected. This can include furniture, dishes, furnishings, clothing, and food. Electronic gadgets such as TVs, radios, etc are not protected.

4. YOUR SAVINGS FOR RETIREMENT

Your IRA is protected, but this is not true for inherited IRAs for many people who do not live in Texas. We are special.

5. YOUR WEDDING RING

Actually, you can protect personal jewelry worth up to 25% of your exemption amount. An individual can protect up to $30,000.00. A family can protect up to $60,000.00.

WANT TO KNOW MORE?

The list of most protected assets is found in our Property Code. There are also protections found for current wages, insurance policies and other assets in other parts of our law.

This is not a complete list and should not be considered legal advice. A detailed examination of the assets owned, the debts owed and other factors should be done in each estate in order to determine the best solution in each case.

WHAT IS A TRUST?

Fri, 01 May 2020 21:21:22 GMT

A Trust is a contract. It is an agreement between the person(s) who create and fund the Trust (called Grantors or Settlors or Trustors), the person who will manage the Trust assets–Trustee, and the person(s) who get the use of the Trust assets-beneficiaries.

Usually my clients occupy all three roles-at least to start. As long as my client remains mentally competent and alive he or she or they get to continue being Trustee. Once the Trustee is no longer able to manage the assets the Co-Trustee or a successor trustee takes over the management of the assets avoiding the necessity of a guardianship or probate proceeding as least as concerns the assets in the Trust. This benefit is only good for the assets placed into the Trust. Some assets cannot be placed into a trust, such as a 401k plan.

I cannot stress enough the great benefit of placing your assets into a trust to avoid Guardianship if you have persons who can be trusted to manage the assets for your benefit. Guardianship are the expensive, slow, and extremely limiting court process most people accuse probate of being and it is imposed while you are still alive. I have an entire section of this website discussing Guardianship. Guardianship can be avoided and should be.

The Trustee is responsible for managing the assets and income for the benefit of the beneficiaries. This is a fiduciary position. I discuss fiduciary responsibilities, here.

A trust created while a person is alive is called a living trust, or inter vivos to use the fancy legal Latin term. A trust created while a person is alive is usually also revocable or able to be modified without going to court. Living Trusts and Revocable Trusts are for most purposes the same thing.

An irrevocable trust is not able to be changed or modified without going through a court proceeding and maybe not then. A Testamentary trust is a trust created by means of a person’s will and becomes effective only after a person dies. Clearly these trusts are irrevocable. For a gift to be final for income or estate tax purposes it must be irrevocable. This is probably the most common reason for the creation of irrevocable trusts.

A self-funded trust is not an effective means of asset protection. A third-party trust is avery effective asset protection tool. A gift by a parent or grand-parent into a trust using spend thrift protection language can protect against almost any disaster except investment or market disasters: lawsuits, beneficiaries cannot mismanage assets or income still in trust.

IS A TRUST GOOD FOR PROTECTING ASSETS FROM MEDICAID?

Fri, 01 May 2020 21:17:39 GMT

This is a complicated question. It needs to be understood that my answer is limited to Texas. In general the answer is no, especially if you are over age 65. In other states a trust called a Medicaid Asset Protection Trust can be effective, but not in Texas. I am limiting this answer mostly to that question being “How do I protect my assets from the nursing home?”

If you are under age 65, have sufficient assets to pay for your support for 60 months and are willing to give up control of the assets then there is a form of Trust that will protect the transferred assets from Medicaid. Most people either do not have sufficient assets or are unwilling to give up control or benefit of the assets.

There are special trusts called Special Needs Trusts or sometimes called Supplemental Needs Trusts (SNT). These are specially crafted trusts using a Federal statute to allow persons who are disabled to receive limited benefit from the trust assets and income. The trust terms limit the payment of income and principal to purposes other than what Medicaid or SSI would pay for. In other words the SNT cannot pay for housing, food or medical care. Persons under age 65 may self-fund a Special Needs Trust. A spouse or anyone else can fund a third-party trust with assets not owned by the disabled beneficiary at any age. I often place a spousal Special Needs Trust in Wills that I draft for married couples.

A self-funded SNT must contain a repayment clause requiring any trust assets remaining after the death of the beneficiary to be paid to the State or States with a claim for care under Medicaid.

WHAT IS AN END OF LIFE DIRECTIVE?

Wed, 01 Apr 2020 21:21:23 GMT

Texas uses two terms for the document used to describe end of life decisions making. It is called an Advance Directive or Physician’s Directive. It is a statutory form meaning our Legislature created a basic form that can be modified, but the core form must remain.

Few people think we have a good form or tool for decision making. Any form the Legislature approves is created by negotiation and sometimes the various parties to a negotiation have to settle for those parts of an issue that can be agreed upon leaving the “best” or “worst” parts out. The statute with the form follows this article. Physicians Directive

What must be understood is that neither this form nor the Health Care Power of Attorney are considered while a patient is mentally competent. Only once a doctor writes into a patient’s medical record that the patient is not mentally competent to make a medical decision are the two documents relevant. Most people appoint the person who they want to make decisions in the Health Care Power of Attorney. Any number of people can be listed sequentially.

There are two basic decisions. What is done in the event of a terminal illness ? And what is to be done in the event of an irreversible condition . These are defined in the statute and explained in the form. To simplify, a terminal illness is any injury or illness that will cause a patient’s death during the next six months no matter what a doctor does to keep the patient alive. Obviously, this is an estimation, or a guess based on the doctor’s experience and statistical data. Most doctors are very unwilling to tell a patient that he or she cannot be cured. This definition is the same standard used to qualify a patient for hospice.

An irreversible illness is any injury or illness that could cause a patient’s death but use of medical care can keep a patient alive indefinitely. However, the patient is never again expected to be able to make his or her own care decisions again – ever.

Very few people like the basic form so I have developed a number of modifications to the form to give the decision maker better understanding of what is desired and/or to grant more room to the decision maker. I also have found several attachments to help my clients consider possible care decisions to discuss with the persons who will be given this horrible task. Each of us should give at least an hour or more to discuss our values regarding various types of issues to be considered in making an end of life decision with those persons who are to be given the task. Some of the factors that should be considered is what effect does pain, lack of mobility, lack of mental capacity, the place where care must occur, the cost of care and any other factor you hold important have on the decision to continue attempts at being cured.

The very first criteria you should consider is do you trust the person to make a decision based on the values you hold as to what is a life worth living. The second criteria should be whether that person is strong enough to allow you to die by instructing the medical staff to stop providing curative care. The persons we choose are almost always those persons who love us the most. This is one of the most heart wrenching decisions we can ask anyone to make. We owe our decision makers as much help as to how and when decisions should be made. We should take as much of the emotional burden from their shoulders as we are able to do. If you have questions please call or email me for an appointment using the information below.

OFFICE PRACTICE CHANGES AND COVID-19

Tue, 24 Mar 2020 21:22:45 GMT

I am adapting to the virus with everyone else. Since I live very close to my office I will maintain office hours and someone will be answering the telephone during office hours. As much as possible I will try to answer your questions by telephone or a digital video program such as Zoom, Skype or other program.

The Tarrant Probate County Courts cancelled all non-essential hearings until April 1, 2020. Tarrant County Probate Courts will begin limited uncontested virtual (video) hearings in April. All new consultations may be handled telephonically or via Zoom or similar program if you have a preference. When booking your consultation, please advise the receptionist if you would like to utilize Zoom, so we can work on accommodating you;

The firm is following all CDC and WHO sanitation and personal hygiene protocols. If you currently have an in person appointment scheduled, which you would like to keep, the I will still meet with you.

We encourage all clients with active symptoms such as: fever, cough, and shortness of breath to immediately consult with their healthcare provider and stay home.

We believe these implemented protocols will enable my office to continue to safely meet your legal needs, while providing peace of mind to you and our staff.

Please contact our office at 817-795-8843 with any questions or concerns you may have.

For more information on the virus and tips to ensure your safety, please click the link below to be navigated to the CDC and WHO:

https://www.cdc.gov/coronavirus/2019-ncov/index.html

https://www.who.int/emergencies/diseases/novel-coronavirus-2019

Sincerely,

Charles Kennedy