Frequently Asked Questions

Every adult needs estate planning. Although the state has default rules in place to take care of you if you do not have a plan, generally, you know better what you want than our legislators.

Further reading: Who Needs an Estate Plan? Everyone!

Your estate is made up of everything you own. This includes your clothes and furniture, your bank account, your car, your cats, your dogs, and your cows and goats. Other things that might make up your estate include things like mineral rights, real property, jewelry, any business you own, stock you hold, and retirement accounts. So although the word “estate” might sound fancy and like it applies only to rich people, that’s not true. Everyone has an estate.

At a minimum, as estate plan should include at least the following:

• Will
• Durable power of attorney
• Medical power of attorney
• Advance directives / living will

An estate plan might also include pieces such as a revocable living trust, a special needs trust, a HIPAA release, a burial authorization, or guardianship provisions for children.

McCreary Law Office always recommends that you sit down with anyone you want to name as an agent or an executor and ask if they are willing to take on this task.

As for talking with your children or other potential beneficiaries, the decision of how much to tell them will vary with each family.

At the very least, it is important that whoever will be in charge knows where you keep your plan and how to access it.

McCreary Law Office offers family meetings for families who would like to have the attorney explain estate planning to those involved.

To take the first step, schedule a Discovery Call or complete the online form. You can also call the office directly at 713-568-8600 (Houston) or 904-425-9046 (Jacksonville). From there, we'll schedule your Initial Planning Session to determine the best type of planning for your situation and goals.

Yes and yes. Anyone who has legal capacity can write her own will, but you should not. Estate law is complex and involved. More often than not, a do-it-yourself will causes more trouble for your family in the future because something was not done correctly or the DIY will confuses things more than settling things. That “more trouble” also means it will likely cost your family more money to settle your affairs. Benjamin Franklin’s saying, “An ounce of prevention is worth a pound of cure” applies here too: investing in a solid plan now is usually much less costly than paying to sort things out later. And the peace of mind is priceless.

A holographic will is a handwritten will — written out completely by the person making the will (not typed at all), in that person’s handwriting, and signed by that person. Texas recognizes holographic wills as valid. McCreary Law Office does not recommend this. Confusion, family battles, and high court costs can result.

Further reading: Are Handwritten Wills Valid?

Usually a will from out of state will work in Texas if it is valid in the other state. But that will likely will not work as well as a will drafted by a Texas estate planning attorney. Texas has certain things in probate that turn on language in a will. Other states don’t have the same rules. So your best action is to update your will (and the rest of your plan) when you move.

It depends. Because each client is different, McCreary Law Office does not quote fees for “simple wills.” Too often, what a person thinks is simple is anything but that. And “just a will” does not include the important parts of an estate plan that address incapacity planning. McCreary starts every client’s case with an Initial Planning Session. The fee for that initial hour-long meeting with an attorney is $150.

Further reading: How Much for a Simple Will?

Not exactly, but Texas community property laws complicate things. First, if you own a home, you cannot completely disinherit your spouse because your spouse will have the right to live in the home after your death – even if the home is in your name. For everything else, your spouse has a right to half of any of your community property. Careful estate planning, however, can allow you to do things differently.

Yes. Adult children do not have a right to inherit from their parents. However, how you disinherit your children can lead to complications after your death. Further reading: Deciding to Disinherit a Child

For minor children, the answer is more complicated. Families, including a spouse and minor children, have the right to exempt property or a family allowance. And if back child support is owed, then it can be claimed against your estate. Also, if you are paying child support when you die, all future child support might have to be paid before others inherit.

The best way to leave money to a charity depends on the assets you own, how much you want to leave, and who else you want to include as beneficiaries. Thus, this answer is not straightforward and might shift for different situations.

No. In Texas, as much as McCreary Law Office agrees that pets are part of our families, pets are considered property. In fact, you should name in your estate plan who will receive your pets after you die. Some clients find particular comfort in setting up a pet trust to cover the costs of taking care of your pets.

Probably not. Unless you are certain to have someone else authorized to access your box (and, ideally, a back-up to that person), McCreary Law Office does not recommend storing your will in a safe deposit box. A safe deposit box cannot be opened by someone else until your death. And a court order might be needed. McCreary Law Office instead recommends a fire-proof and water resistant bag or safe in your home. And if you ever must evacuate your home due to a hurricane or power grid failure or flood, be sure to take your plan with you.

A key point, though, is that your agents should know where to find your plan. If you've planned with McCreary Law Office in 2022 or after, the office has asked you where you'll store your plan and if you grant consent for the office to share that location with your agents in the future. (If you planned with the office before 2022, please contact the office to update this information.) 

A will does not always have to go through probate. However, in Texas, if a will does need to be probated, that must happen within four years. Please consult with an attorney to find out if probate is needed in your situation.

Typically, beneficiaries are not taxed on their inheritance in Texas. If an estate is valued at more than the federal exemption amount, the estate will likely have to pay taxes before giving money to beneficiaries. The federal estate tax exemption amount for 2020 is $11,580,000 for a single person. That means that if your estate – the value of everything you own – is less than the exemption amount in the year that you die, your estate should not owe any estate tax.

Yes. However, Texas allows you to include a “no contest” clause. This kind of clause basically says that if someone tries to contest your will after you die, that person forfeits his inheritance if he loses. Texas supports this unless the person contesting the will does that in good faith and had just cause – a solid reason – for contesting the will.

In a revocable trust — also called a revocable living trust — you initially serve all three roles: you create the trust as the settlor, you are in charge of the trust as the trustee, and you benefit from the trust as the beneficiary. You name another person to take over as trustee after your incapacity or death, and that person is in charge of the trust for whomever you choose to be the new beneficiaries. You can change this trust as much as you want while you are alive.

A testamentary trust is a trust that is created within your will. This trust does not come into existence until your death. It acts sort of like an account that holds an inheritance for someone else. You specify the rules of the trust such as if the trust will pay for college or a wedding or travel and how old a beneficiary must be before getting the money out of the trust.

A special needs trust — also called a supplemental needs trust — allows money to be set aside to take care of someone with disabilities without disqualifying the person from public benefits. If you have a child or grandchild who is receiving public benefits due to a disability, it can be very important to set up a special needs trust for any potential inheritance.

A trust has many potential purposes.

Protecting children’s inheritance

In estate planning in Texas, McCreary Law Office recommends using either a testamentary trust or a revocable living trust if a minor or young adult might inherit your property. This helps protect the inheritance rather than giving everything to the child at age 18.

Protecting inheritance in the future

By creating a trust that can hold a child’s inheritance even into adulthood, you can offer your adult child a lot of protection of her inheritance. This includes protection from claims of a future ex-spouse of your child, from creditors, and others. This can also protect the inheritance in situations such as gambling or drug addiction.

Easing estate planning issues for blended families

For a blended family, a revocable trust can be especially important to make sure a surviving spouse is taken care of and that children from prior to the marriage are provided for.

Protecting privacy

Revocable trusts also can help protect your privacy because when a trust is set up properly, the public inventory can be avoided.

Avoiding probate

Revocable trusts also can make things smoother after death rather than formal probate. Although independent administration in Texas is not complex, probate in Texas can have many layers.

Protecting a beneficiary who has disabilities

A special needs trust can help take care of someone with disabilities without making her ineligible for public benefits.

In Texas, you have a choice to make your power of attorney effective immediately or only after incapacity. McCreary Law Office recommends the former. If you go with only after incapacity, too often, your agent (the person you put in charge) could have difficulty getting a formal declaration of incapacity. And without that, your agent would be powerless, which is exactly what we are trying to avoid by putting your power of attorney in place. We’ll discuss these options in detail during a consultation.

A limited power of attorney is the same as a traditional power of attorney except that it grants only specific — limited — power. For example, if someone will have to sign a deed for you to sell your home because you are not available, you might grant that person power to do only that action and only for a limited amount of time. (Such a power of attorney for real property must be recorded with the deed.)

No. The powers under a power of attorney die with you.

No. When your agent acts on your behalf, that indicates the agent has accepted the power and the responsibility.

It could take up to seventeen business days to learn if a bank (or anyone else) is going to refuse to accept your power of attorney. When given a power of attorney, a bank can ask for either the agent’s certification or an attorney’s opinion before accepting a power of attorney, but that must be done within ten business days. But the bank cannot require that a power of attorney be on some other type of form as long as the one presented grants banking powers. The bank then has seven days to either accept the power of attorney or provide a written reason it is being refused. Texas law provides limited reasons someone can refuse to honor a power of attorney.

No. Your advance directives (also called a living will) are directives you put in place to specify your wishes for end-of-life care. DNR orders are doctor’s orders— something that your doctor actually must sign.

The estate is responsible for paying for funeral costs, but not always are estate funds immediately available. And it is possible the estate will not have enough money to cover the cost. Planning in advance — by prepaying for your services or by making sure funds are available to your agent — can help your family through this process. It is possible that a contract you sign could make you personally liable for the payment, so proceed carefully.

Probate is, at the basic level, the process of the court overseeing what happens after a person dies. Officially, someone gathers the person’s assets and distributes them to the beneficiaries. That person is responsible also for handling any debts the decedent owed by paying those out of the estate.

A will does not always have to go through probate. However, in Texas, if a will does need to be probated, that must happen within four years. Please consult with an attorney to find out if probate is needed in your situation.

In Texas, probate typically happens in the county where the person lived. If the person owned property in multiple counties, some things are filed in the other counties too.

Yes. However, Texas allows you to include a “no contest” clause. This kind of clause basically says that if someone tries to contest your will after you die, that person forfeits his inheritance if he loses. Texas supports this unless the person contesting the will does that in good faith and had just cause – a solid reason – for contesting the will.

When someone has a will, we call that dying “testate.” If the person dies and does not have a will, that is called “intestate.”

Texas law outlines where your assets go when this happens — such as to your spouse or your children if you are married or have kids or to your parents or siblings if you are not married and have no children. This becomes a bit complicated, though, if you are married when dealing with community property and separate property and particularly if your spouse is not a parent of your children.

Even if you are happy with how the state says your property should be distributed, when you don’t have a will, the process for handling your estate is often more complicated and more expensive. Your estate is more likely to need a determination of heirship or a dependent administration, both of which can be costly.

Not always. Because of the community and separate property rules in Texas, this can become complicated for someone who was married and does not have a will, especially regarding any separate property. Your spouse has a right to his share of the community property. Everything else will pass either as you state in your will or as Texas law states happens if you die without a will.

Typically, yes. If any of your children have died before you, then that person’s share will go to that person’s children. Even if you want everything to go to your children, having a will prevents the likely necessity of a determination of heirship proceeding.

Yes. Although Texas law details what happens to your property, it will be much easier on your family if you put your wishes in writing. It’s especially important that you name who should be in charge of things. And having a will prevents the likely necessity of a determination of heirship proceeding.

Typically, beneficiaries are not taxed on their inheritance in Texas. If an estate is valued at more than the federal exemption amount, the estate will likely have to pay taxes before giving money to beneficiaries. The federal estate tax exemption amount for 2020 is $11,580,000 for a single person. That means that if your estate – the value of everything you own – is less than the exemption amount in the year that you die, your estate should not owe any estate tax.

When the beneficiary inherits a non-Roth retirement account, though, income taxes are due when that account pays the beneficiary.

Who is a decedent?

Decedent is the term used for the person who died.

Who are beneficiaries in a will?

Beneficiaries are the people who are named in the will or in accounts to receive property and assets after the decedent dies.

Who are heirs in an estate?

Heirs are people that will inherit property when there is no will. Your heirs are relatives. Texas has a particular order for deciding who inherits property.

What is a personal representative?

The personal representative is the person the court appoints to be in charge of the estate. This could be an executor (or executrix) or an administrator.

What is an executor? What is an executrix?

The executor (often called an executrix when female) is the person named in a will to be in charge of the estate after the decedent dies. To have official authority, the executor needs to be appointed by the court.

What is an administrator of an estate?

The administrator of an estate is the person appointed by the court to be in charge of the estate after the decedent dies. We use “administrator” when the decedent did not have a will.

Long-term nursing home care is paid in a number of ways: private, out-of-pocket (using your savings); long-term care insurance; or Medicaid. Medicaid pays for close to half of all nursing home stays.

Using the Texas Department of Health and Human Service’s monthly divisor as a guide, the general average cost for nursing home care in Texas can be viewed as $6500 per month.

Not for long. Medicare pays for only 100 days of skilled nursing care per illness, and even then, it pays only under specific circumstances.

Usually, yes. Medicaid is a benefit program operated by the state and federal government. It provides medical care for those with extremely low income and who, for example, are pregnant, are caring for children, are former foster children, or who are disabled or have debilitating and chronic illnesses and cannot work. But another category for Medicaid eligibility is for people who are 65 years old or older.

In Texas, a person must qualify under both the income and asset limits. In 2022, the income limit is $2523 per month. A single person must have less than $2000 worth of countable assets.

Not all of your assets count as part of the $2000 limit. Examples of assets excluded in the total include your homestead (with limits), a car, a burial plot, certain life insurance policies, and, under some circumstances, retirement accounts.

Yes. By using a Miller Trust  (also called a Qualified Income Trust), a person can qualify for Medicaid in Texas even if over the income cap of $2523 per month.

If you have too much income, an attorney helps you qualify by drafting a qualified Miller Trust. If you are over the asset limit, an elder law attorney guides you on allowable spending of your resources.

No. If you give anything away in the five years before applying for Medicaid, this will likely result in a penalty period during which you will have to pay out-of-pocket for your care. Please consult with an elder law attorney before taking any steps to get ready to qualify for Medicaid.

Yes. Married persons have rules to protect the spouse who is living in the community.

Yes! Jana maintains her Florida license and her Florida office on University Boulevard in Jacksonville. She is available by phone and video conference on an ongoing basis. She sometimes travels to the Florida office to meet with clients in person. But now Jana sees clients throughout the state of Florida using video conferencing. For estate planning clients, we will arrange for a notary and two witnesses to come to your home for your signing.

Jana works with existing and former clients and is also taking new clients in Florida.

Jana McCreary is passionate about educating people about the importance of estate planning. In addition to being a law professor for a decade, she has vast experience with public speaking. Jana has presented to groups at business, nursing homes, and assisted living facilities, among others. Her audiences have been made up of a variety of persons including small business owners, financial planners, parents, and those planning their retirement. Please call the office to talk with Jana about visiting your organization.

Payment depends on what your matter involves. For estate planning, the office requires 60% of your fee to be prepaid for the office to begin work on your plan, paying out as your plan is worked on through meetings, emails, and drafting. The 40% balance is due before your originals are provided for signing.

For probate clients, fees are required to be prepaid and are held in trust, paying out to the office as work is completed.

Yes. McCreary Law Office accepts American Express, Discover, Master Card, and VISA. You may also pay by eCheck. Any of these payments can be made online.