Frequently Asked Questions

McCreary Law Office answers your questions about estate planning, probate, elder law, and working with the firm.

Estate Planning

Estate planning involves planning for what happens after you die and in case you are incapacitated and cannot make your own decisions.

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:

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 an introductory call or complete the online form. You can also call the office directly at 713-568-8600 (Houston) or 904-425-9046 (Jacksonville).

Estate planning is both personal in nature and very individualized based on your particular circumstances. It’s not fill-in-the-blank, and it’s not one-size-fits-all. Thus, McCreary Law Office cannot quote fees online or on the phone because the attorney cannot know what you need for your situation until we have a consultation.

The consultation is a meeting with the attorney, up to an hour, during which the attorney can assess your situation and provide advice on what would fit you best. Based on that conversation, the attorney will explain fees and what options you have for choosing the level of protection you want. The consultation fee is $150.

When you’re setting up your estate plan, it is not the time to look for a bargain or shop the generic aisle. And when an attorney is able to tell you what your plan will cost without asking any questions about you, the worry is that this plan is not about you but is just a form. At McCreary Law Office, the focus is on you and your situation. Because if your plan doesn’t take the nuances of your situation into play, then it is more likely to fail when it is needed most.

Wills

A will is a document that explains what you want to happen to your property after you die and who you want to be in charge. To make things smoothest and easiest on your family, your will should contain some very specific legal terms.

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 consultation. 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 bag or safe in your home.

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 Texas, if you die without a will, it’s called dying “intestate.” Texas law outlines where your assets go when this happens — such as to your spouse or your children 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, in many cases whoever steps up to be in charge of your estate will have to apply for a Dependent Administration, which can be costly.

Trusts

A trust is an agreement that allows you (the settlor) to transfer your property to another (the trustee) to benefit a named party (the beneficiary). You might serve all three roles or only one role, depending on the type of trust.

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.

A revocable trust must be “funded” — that means retitling assets into the name of the trustee of the trust. This step is essential when a revocable trust is being used to ease any potential hassles of probate. McCreary Law Office provides guidance to clients about how to make sure this is done properly such as changing the name on property deeds, bank accounts, investment accounts, and others.

Powers of Attorney

A power of attorney is a document that gives someone powers to conduct affairs for you related to finances and property — both real property (land / buildings) and personal property.     

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.

You can revoke your power of attorney at any time. If no one is acting as your agent and you have not given a copy to anyone, you can revoke it in writing or by destroying it. If someone is already acting as your agent, you should give that person notice you are revoking the power. You should also tell anyone else who is relying on the old power of attorney. In Texas, you can also sign a new form that specifically revokes an older power of attorney; you give this form to your previous agent and anyone working with that agent.

Health Care

A living will is the term used for advance medical directives or your Directives to Physicians and Family or Surrogates. It has nothing to do with what happens after death. And it doesn’t have anything to do with your property. Instead, a living will is used for you to tell your doctors if you do not want extraordinary care at end-of-life.

A will, on the other hand, is a document that explains what you want to happen to your property after you die and who you want to be in charge.

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.

No. Typically, a power of attorney covers only decisions related to finances and property. McCreary Law Office often says it’s about the business side of your life. In Texas, we use a separate Medical Power of Attorney to designate who makes your medical decision. A well-drafted Medical Power of Attorney will also include language to make sure your medical agent is able to talk to your doctors.

Elder Law

Most insurance agents will explain that premiums for long-term care insurance rise dramatically after your mid50s. After age 60 and beyond, the cost may become prohibitively expensive.

If you’ve missed the window for long-term care insurance, and even with coverage, it can be beneficial to start the planning process for your long-term care needs in your 60s. The best advance planning takes five years.

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 2020, the income limit is $2349 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 $2349 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.

After someone dies, the state can make a claim against that person’s estate to repay the state for costs the state paid for under the Medicaid program. By working with an elder law attorney in advance, you might be able to protect more of your estate.

Probate

If you’re reading this because a family or loved one has died, many condolences. Jana McCreary has been through the process and understands many of the challenges you might be facing.

If you are the person closest to the decedent, you will want to secure the person’s property and look for important documents such as a will, life insurance policies, and burial contracts. You’ll order death certificates from the funeral home or crematorium that handles burial or cremation.

Jana can meet with clients early in the process, but not much in the legal process can be done without a death certificate. In the meantime, tend to your family as you honor your loved one’s memory.

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.

What is a person’s homestead?

When talking about probate or an estate, the place (house, mobile home, townhome) where the decedent lived and that was owned, at least in part, by the decedent, is the decedent’s homestead. Texas protects the homestead (to the degree the decedent owned it) when a surviving spouse or minor children live there. Texas also protects the homestead under certain conditions when an adult child lives in the home.

What is exempt property in probate?

In addition to the homestead, some of the decedent’s property is considered to be exempt. Being exempt means that it cannot be used to pay debts the decedent owed. Instead, when there is not enough money in the estate to pay the debts, this property is saved to help take care of select categories of people. Exempt property includes things such as home furnishings, vehicles for farming and ranching, clothes, tools, a limited amount of jewelry, two firearms, sporting equipment, pets, and certain livestock.

What is a family allowance?

When the estate owes creditors money, before those debts are paid, the family — the surviving spouse and minor children — could get money set aside to help take care of them.

Working with McCreary Law Office

McCreary Law Office sees clients in the office by appointment only. But someone is available to answer your call Monday through Friday, 9am to 5:30 pm.

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 also travels to the Florida office throughout the year to meet with clients in person. 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 and held in trust while your plan is being drafted. That is fully earned when your plan has been drafted. The 40% balance is due when you sign your plan. For elder law and 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.

Yes, she does. Jana’s great-great-great granduncle fought at the Alamo in 1836. Those were the beginnings of her Texas roots on her paternal grandmother’s side of the family. Jana is proud to be a full third-generation Texan, her parents and all of her grandparents having been born in Texas. (She thinks she’s but one great-grandparent shy of being fully fourth generation.)

Further reading: Family History as Legacy

Attorney Jana McCreary

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Houston Estate Planning and Elder Law Attorney Jana R. McCreary has been an attorney for over seventeen years, a career move she made after working for over a decade with adults and children with intellectual disabilities and mental illness. Graduati… Read More

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