Category: Wills

There are Benefits to Creating A Life Estate

There are Benefits to Creating A Life Estate

Maintaining a home and transferring ownership after the death of a spouse can be complicated. There are some benefits to creating a life estate. While the life tenant is still alive, they’re in control of the property in all respects, except they can’t sell or encumber it without the consent of the remainderman. After the life tenant passes, the remainderman inherits the property and avoid probate. Life estates can simplify the estate planning process, so that a homeowner can easily pass property down to the next generation upon death.

Quicken Loans’ recent article entitled, “What Is A Life Estate And What Property Rights Does It Confer?” says that by understanding the features of a life estate and creating one at the right time, you can enjoy these benefits:

Property Avoids Probate. Property held in a life estate transfers ownership to the remainderman, saving everyone time and headaches. It also eliminates the complications that arise when trying to spell out your intentions for your property in a will.

Property No Longer Part Of The Estate. Once your state’s Medicaid look-back period has passed, a property transferred through a life estate won’t count against your eligibility.

Keeps Seniors In Their Homes. Even though a life estate effectively transfers property ownership to the remainderman, the life tenant has guaranteed residency, if desired, for the rest of their life.

While a life estate can be a helpful tool, it does have several drawbacks:

The Property Is Vulnerable To Debts Of Heirs. Because a life estate transfers property rights to a designated heir, the heir’s creditors may have the right to seize inherited assets to cover any outstanding debts. This would contradict the life tenant’s wishes to pass their assets on directly to the heir.

The Heirs’ Rights To The Property Vest At Creation. Once you create a life estate, property rights vest in your heir. You can’t take back those rights without the heir’s consent.

There are some real benefits to creating a life estate. Because you can’t reverse a life estate without the consent of both the life tenant and remainderman, you should understand each facet of the contract before committing to it. Ask an experienced estate planning attorney to help you. If you would like to learn more about managing property in an estate plan, please visit our previous posts. 

Reference: Quicken Loans (August 9, 2022) “What Is A Life Estate And What Property Rights Does It Confer?”

You need to make a Plan for Digital Assets

You need to make a Plan for Digital Assets

What happens to digital assets when you die? There are state laws offering the executor of an estate or an estate planning attorney to obtain access to a person’s online accounts after incapacitation or death. These laws—including RUFADAA (Revised Uniform Fiduciary Access to Digital Assets Act)—will help to protect digital assets, but only if you have a digital estate plan, reports the article “How to Tackle Digital Estate Planning in Four Easy Steps” from Kiplinger. Whether or not your state has created these laws, you need to make a plan for your digital assets.

RUFADAA has a three-tier process for accessing digital assets:

Tier One: Some digital service platforms offer a way to designate what happens to digital assets after death. Yahoo has an inactive account manager to designate a friend, which guides what happens to digital assets.

Tier Two: If there is no such tool, the owner’s estate planning documents must dictate what should happen with the asset.

Tier Three: If neither of these tiers is in place, refer to the platform’s Terms of Service Agreement (TOSA) to see how the executor may access these accounts.

What makes up your digital estate? It includes all electronic and virtual accounts, passwords and assets, including:

  • Social media
  • Email
  • E-Commerce accounts
  • Photos saved in cloud-based storage
  • Cryptocurrency keys, wallet, and any related accounts
  • Cellphone and cellphone apps
  • Domain accounts
  • Text, graphic and audio files and any other intellectual property
  • Blogs and domains
  • Loyalty benefit programs, like credit card perks and frequent flier rewards programs
  • Utility accounts, including electricity and cable tv
  • Online banking
  • Gaming
  • Online shopping accounts

Electronic bank accounts are considered digital assets. However, the money in the bank account is not a digital asset. Likewise, cryptocurrency account access platforms, such as Coinbase, are digital assets, but the actual cryptocurrency, such as Ethereum or Bitcoin, is not a digital asset.

Here are the four steps to creating a digital estate plan:

Create a complete digital asset inventory. This should include all account names, usernames, passwords and the URL or address of the digital asset.

Decide how you want digital assets handled. List intentions for every account, so your executor knows what you want to happen. This is known as a “directive” and will likely be required by the platform to indicate your wishes. Some companies have conditions in the TOSA, so make sure your wishes can be followed. For example, Twitter and Google have “legacy” policies. Facebook lets family members memorialize your account.

Name a digital executor. This person doesn’t need to be the same as your executor. You’ll want to select someone familiar with the online world.

Store your digital estate plan in a secure place. Make sure that your digital executor knows where the information can be accessed. There are online platforms to help organize digital estate plans in the event of an emergency. Note that they are not the same as password managers, which store passwords. These platforms should include directives indicating what you want to happen with your digital assets.

The bottom line is this: you need to plan for your digital assets or your family may loose access to them. The digital estate plan is considered informal, if your state has not passed RUFADAA. Ask your estate planning attorney if you can formalize it by making it a codicil to your will. If you would like to learn more about digital assets, please visit our previous posts. 

Reference: Kiplinger (May 16, 2023) “How to Tackle Digital Estate Planning in Four Easy Steps”

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Estate Plans Require Preparation for Success

Estate Plans Require Preparation for Success

Making wishes clear to family members is never enough to satisfy legal standards, according to a recent article, “Preparation is essential part of estate plan” from The News-Enterprise. Quite the opposite occurs when family members refuse to follow verbal requests, especially when personal grievances come to the surface during times of grief. Estate plans require preparation for success.

A second misconception concerns the spouse or children being able to step in and take action for a loved one whose health is declining solely based on the family relationship.

Many parents have children who would make poor agents, so many don’t name their children to act on their behalf. Even if you want your spouse or child to act on your behalf, you have to name them in the proper legal documents.

A third frequent misconception is that documents can be created when needed. Not so! Documents like Power of Attorney, Health Care Power of Attorney, Living Will and others must be created well in advance. An incapacitated person cannot sign legal documents, so if no planning has been done, the family will have to petition the court to name a guardian—an expensive, time-consuming and complicated process.

Every adult should have three basic documents while they are in good health: a Health Care Power of Attorney, a Durable Power of Attorney and a Last Will and Testament.

The Health Care Power of Attorney gives another person the right to make healthcare decisions for you if you are unable to do so. It also gives another person the right to access protected health care information, including medical and health insurance records. It may also be used to authorize organ and/or tissue donation and set limitations for donation. Finally, the document may direct end-of-life decisions regarding artificial life support.

The Durable Power of Attorney allows another person to handle legal and financial matters. It can be effective upon signing or upon incapacity. Without correctly executed Powers of Attorney, the family will need to apply for guardianship.

The Last Will and Testament determines who should receive any specific property and how your property is to be divided and distributed. Wills are only effective upon death, so any property in the will continues to be yours until death. Wills are also used to name the executor who will be responsible for administering the estate. It can also be used to set up additional protections for disabled beneficiaries, minor children and others who are not good with finances.

Speak with an experienced estate planning attorney to be certain to have these essential documents to prepare for the times when life doesn’t go as expected. Preparation is required for the success of your estate plan and those you love. If you would like to learn more about drafting an estate plan, please visit our previous posts. 

Reference: The News-Enterprise (May 13, 2023) “Preparation is essential part of estate plan”

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Name a Successor Executor to avoid Problems

Name a Successor Executor to avoid Problems

If the executor dies while the estate is being administered, it can create many complications, says a recent article, “What Happens If the Executor of My Will Dies?” from yahoo! finance. One solution is to name a successor executor to avoid some of the problems. Many people fail to do this. It’s a big mistake.

In estate planning, an executor is charged with settling the estate of a deceased person. The executor is named when your will is created. That is when you have the opportunity to name the person you trust to act as an executor. If you die without a will in place or your will fails to name an executor, any interested party can petition the probate court to become the executor.

You probably prefer to select the person to be your executor, rather than hoping the court names someone you trust to follow your wishes.

The executor has a number of tasks to complete, including but not limited to:

  • Creating an inventory of the decedent’s estate
  • Notifying creditors of the decedent’s passing
  • Liquidating estate assets to pay creditors
  • Distributing remaining assets among heirs according to the terms of the will

Executors have a fiduciary duty when settling estates, meaning they must always act in the best interest of the decedent’s heirs. If they fail to do this, they can be removed.

If the executor dies before the person who makes the will, a new one needs to be named. This is yet another reason why last wills need to be updated on a regular basis, especially if the executor is close in age to the testator, the person who created the will.

The court will name an executor if the testator fails to update their will or write a new one. Any interested person can petition the court, which may not be what you had in mind. Someone who is not qualified or doesn’t have the best interest of heirs could be appointed.

What if the executor dies during the probate process? If a successor executor is named in the will, they can step up to finish the estate settlement. However, this only happens if the testator names one or more successor executors. When there is no successor executor named, the court will name one.

The easiest way to avoid problems arising from the death of the executor is to name a successor executor. Another is to place most or all of your assets in a trust, which would allow them to bypass probate. For a trust, you’ll need to name a trustee who will manage assets on behalf of beneficiaries.

Placing assets in a trust avoids complications following the death of an executor as the trustee would be responsible for distributing the assets. Instead of waiting for probate to be included, the trust beneficiaries could receive their assets according to the terms of the trust. If you would like to learn more about the role of the executor, please visit our previous posts. 

Reference: yahoo! finance (May 15, 2023) “What Happens If the Executor of My Will Dies?”

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Lack of Will can be Devastating for families

Lack of Will can be Devastating for families

According to a recent article, “The Confusing Fallout of Dying Without a Will,” from The Wall Street Journal, despite the consequences for their heirs and loved ones, millions of Americans still don’t have a will. The total wealth of American households has tripled over the past thirty years, according to the Congressional Budget Office. Still, more than half of Americans polled by Gallup said they didn’t have a will in 2021. Another survey showed that one in five Americans with investible assets of $1 million or more don’t have a will. The lack of a will can be devastating for families.

Dying without a will means the laws of your state will determine who gets your assets. In some cases, loved ones could end up with nothing. They could be evicted from the family home and even hit with massive tax bills.

This is especially problematic for unmarried couples. One example—after 18 years of living together, a couple had an appointment with an estate lawyer to create wills. However, the woman died in a horseback riding accident just before the appointment. Therefore, her partner had to get the woman’s sons, who lived overseas, to sign off, so he could be appointed her executor. The couple had agreed between themselves to let him have the home and SUV they’d purchased together. However, state law gave her sons her 50% interest. Therefore, he had to buy out her son’s interest to keep his home and car.

Dying without a will, or “intestate,” means you can’t name an executor to administer your estate, name a guardian for minor children, or distribute the property as you want.

Here’s what you need to know about having—or not having—a will:

State law governs property distribution. In some states, where there is a surviving spouse and children, the surviving spouse gets 100% of the estate, and the children get nothing. The surviving spouse gets 50% in other states, and the children divide the estate balance. For example, in Pennsylvania, if there are no children but there is a surviving parent, the surviving spouse gets the first $30,000, and the balance is split 50/50 with the parent. In Tennessee, a surviving spouse with two or more children receives a third of the estate, with the rest split between the children.

Check on all assets for beneficiary designations. Retirement accounts and life insurance policies typically pass to whoever is listed as the beneficiary. However, if you never named a beneficiary, the state’s laws will determine who receives the asset.

The lack of a will can be devastating for families. Ensure you have a basic will created at the very least. If you don’t have a will and want to be sure a partner gets these assets, you’ll need to speak with an experienced estate planning attorney to explore your options. For example, you might be able to use a transfer on death deed or a payable on death account. However, there may be better ways to accomplish this goal. If you would like to learn more about wills and probate, please visit our previous posts.

Reference: The Wall Street Journal (May 2, 2023) “The Confusing Fallout of Dying Without a Will”

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Unmarried Couples must have Estate Planning Documents

Unmarried Couples must have Estate Planning Documents

Many couples make the choice not to wed, even after being together for decades, for personal or financial reasons. For example, some clients don’t marry so as not to impact their children’s inheritance, while others would rather not bother with the legalities, says a recent article, “Estate Planning for Unmarried Couples” from My Prime Time News. In some cases, marriage would cause the couple to lose pension or Social Security benefits, if they remarried. However, unmarried couples must take extra care to have estate planning documents in place to make their wishes clear and to protect each other in case of incapacity, serious illness and, ultimately, death.

From any statutory priority, a significant other does not have the legal rights granted to a spouse to serve as a personal representative or executor for their loved one’s estate. In addition, there is no statutory right to inherit property, including any family allowance or exempt property allowance.

The significant other also has no rights regarding acting as guardian or conservator for their partner and no ability to make medical decisions, if they become incapacitated or disabled.

All of these issues, however, can be resolved with the help of an estate planning attorney. Both partners should execute a will, health care power of attorney, general power of attorney and a living will to protect each other.

The last will and testament designates a personal representative or executor who will be in charge of the decedent’s estate and inherit the person’s assets. With no will, a partner will inherit no assets, unless they are owned jointly or the partner is a named beneficiary.

Having a health care power of attorney and a financial power of attorney gives a partner the power to make decisions if their loved one becomes incapacitated. In addition, these power of attorney documents are necessary for adult children to have priority in making these decisions, and guardianship proceedings will be required if there are no children or family members.

Disputes between the adult children of unmarried couples are common if a comprehensive estate plan still needs to be completed. For example, imagine a partner of many decades becoming too ill to communicate their end-of-life wishes. Even after a lifetime together, the adult children will have the legal upper hand, regardless of what the couple has discussed as their wishes for this situation.

It may be challenging for unmarried couples to discuss their living arrangements and family dynamics. However, the experienced estate planning attorney has met with and helped families of all kinds and will have the knowledge to prepare an estate plan to address all family dynamics.

Unmarried couples must have estate planning documents in place. Once this work is done, the couple can rest easy, knowing they have protected each other in the best and worst circumstances. If you would like to learn more about planning for unmarried couples, please visit our previous posts.

Reference: My Prime Time News (May 1, 2023) “Estate Planning for Unmarried Couples”

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Managing Debt after Death can be a Challenge for Heirs

Managing Debt after Death can be a Challenge for Heirs

Part of estate planning is considering how future repayment of debts, both owed to the person and debts they are responsible for, will impact inheritances received by beneficiaries. A recent article from Lake County News, “Estate Planning: Debts and Estate Planning,” explains how the process works. Managing debt after death can be a challenge for heirs.

Assets passing to a beneficiary directly, outside of probate, are not typically subject to paying a decedent’s debts. These are life insurance proceeds, joint tenancy assets, Payable on Death (POD) and Transfer on Death (TOD), to name a few.

The estate plan must consider how much debt exists and how it might be paid. One approach is to purchase life insurance made payable to the trust estate.

A person may specifically gift real property, which would be subject to repaying an outstanding debt, like a mortgage.

If the beneficiary who would otherwise receive the residence takes it subject to repaying the secured debt, other assets in the estate would need to be reduced to pay the debt.

This should be addressed when the estate plan is created and must be expressly documented. If not addressed, the default rule is that any secured debt goes with the gift. It’s not likely to have been the plan. However, this is how the law works.

Third, parents and children may loan money between themselves. This is usually between parent and child.

Such family debts merit attention during estate planning. For example, parents may wish to loan money to a child to pay higher education costs, to buy a home, or to launch a business.

Upon the death of the parent, should any unpaid balance be repaid by the child to the parent’s estate, or should the child’s debt be forgiven? This must also be clearly stated in the will or trust, whatever is relevant.

If the parent wishes the child to pay the unpaid balance, the debt obligation and its payment history must be in writing and updated. The debt may be assigned to the parent’s trust and enforced by the successor trustee.

At death, the unpaid balance would need to be added back into the estate’s value to arrive at the correct gross value necessary to assess each share of the total estate.

The unpaid balance is usually subtracted from the debtor’s share.

Children might also be owed money from a parent. For example, the adult child might provide at-home personal care services to their parent, or money may be lent to help with the parent’s cost of living. The debt and repayment history also needs to be in writing and updated regularly.

Debt must be acknowledged, and the means of repaying the debt must be made clear. Managing debt after death can be a challenge for heirs. An estate planning attorney will help document and build repayment into the estate plan. If you would like to learn more about probate and trust administration, please visit our previous posts. 

Reference: Lake Country News (April 29, 2023) “Estate Planning: Debts and Estate Planning”

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Paper Documents You will always Need in your Planning

Paper Documents You will always Need in your Planning

So much of our lives is digital now. From our phones to parts of our cars, many things that used to be tangible are now virtual. This can also include important documents involved in your planning. There are some paper documents that you will always need in your estate planning. Many important documents, such as a social security card or birth certificate, may be decades old. Therefore, if they get lost, you should know how to replace them. AARP’s recent article entitled, “You’ve Lost an Important Document. Now What?” breaks it down for you.

Passport. To avoid becoming a victim of identity theft, report a lost or stolen passport by calling 877-487-2778 or completing Form DS-64 online at travel.state.gov. You can also print the form at the website and mail it to the U.S. State Department. To get a replacement passport, you must submit a Form DS-11 in person at a passport office.

Birth certificate. Contact the vital records office in the state where you were born and order a replacement.

Marriage certificate. Contact the clerk of the county where the license was issued. This office will let you know the documents required, the cost and how the copy can be issued (online, by mail, or in person).

Social Security card. First, consider the need for a replacement because you rarely need the physical card. However, a replacement card should be obtained if you’re starting a new job or live in a state where you need it to apply for a Real ID. To obtain a new Social Security card, you’ll need a birth certificate, driver’s license, state-issued identification card, or a passport. You should then complete an application on the Social Security website (ssa.gov) and mail or take your application and original documents to your Social Security office (the website has information on locations). The replacement card is free.

Will. Laws relating to estate planning are different in each state. However, generally, if your will was accidentally lost or destroyed and not revoked, it will still be valid and represent your wishes. A copy of the will can be submitted to the court at your death. However, you must have left behind clear evidence that you didn’t revoke it—proof that it was accidentally destroyed or lost or testimony from an impartial third party stating that you didn’t plan to change it. Your heirs will also need evidence that it’s a true copy, which the original witnesses or attorney can confirm.

Car Title. The replacement process for the title to your vehicle varies by state. Contact your Department of Motor Vehicles. You may be able to submit a form, or you have to submit a photo ID, vehicle registration, or registration renewal notice.

While the convenience and portability of digital documents is helpful, there will always be paper documents you will need in your estate planning. Ensure you have a plan to protect your documents. Work closely with an experienced estate planning attorney to get it done. If you would like to learn more about essential estate planning documents, please visit our previous posts. 

Reference: AARP (Feb. 14, 2023 ) “You’ve Lost an Important Document. Now What?”

 

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Singles Need Estate Planning for Incapacity

Singles Need Estate Planning for Incapacity

Estate planning is even more critical for singles than married couples—and it has nothing to do with whom you’ll leave assets to when you die. A recent article from AARP, “6 Estate Planning Tips for Singles,” explains how estate planning addresses support during challenging life events. Singles need estate planning during their lifetime for issues such as incapacity.

Estate planning addresses medical and financial decisions for an incapacitated person. For singles, these may be more complex questions to answer.

Whether someone has never married or is divorced or widowed, these are challenging questions to answer. However, they must be documented. In addition, singles with minor children need to nominate a trusted person who can care for their children if they cannot. Estate planning addresses all of these issues.

To be sure you complete this process, start with a conversation with an experienced estate planning attorney. This will help with accountability, ensuring that you start and finish the process.

Here are some pointers for singles who keep putting this vital task off:

What would happen if you don’t leave clear instructions about who will make medical decisions in case of incapacity? A doctor who doesn’t know your wishes will decide for you. If you don’t want to be placed on a ventilator for artificial breathing or fed by a stomach tube while in a coma, the decision will be made regardless of your wishes.

Dying without a will is known as dying “intestate.” All of your assets will be distributed according to the intestate succession laws in your state. If no relatives come forward to claim your property, the state receives your assets. This is not what most people want.

Part of your estate plan includes naming a personal representative—an executor—who will oversee your affairs after your death. You’ll want to designate someone who is organized, has good judgment and can handle financial matters. You should also name a backup, so that if the first person cannot or does not wish to serve, there will be someone else to take control. Otherwise, the court will name someone who doesn’t even know you to take on this task. It’s better to designate someone than leave this to the state.

Your estate plan includes the following:

Last will and testament. This is where you nominate your executor, heirs and how your assets will be distributed. You can also appoint a guardian for minor children. Note that anyone named as a beneficiary on a retirement, insurance policy, or investment account supersedes any instructions in your will, so be sure to update those and check on them every few years to be sure they are still aligned with your wishes.

Living trust. This is a legal entity owning assets to be given to beneficiaries, managed by a trustee of your choosing, and avoids the delays and costs of probate.

Financial Power of Attorney (FPOA). This document authorizes someone you name to act as your agent and make financial decisions if you cannot. An FPOA can prevent delays in accessing bank and investment accounts and paying your bills. The FPOA ends upon your death.

Living will, durable medical power of attorney, or advance health care directive. These documents allow you to designate someone to communicate your health care wishes when you cannot. For example, you can include instructions on pain management, organ donation and your wishes for life support measures.

Health care power of attorney (HPOA). Like the living will, which is more associated with end-of-life care, the HPOA lets someone make medical treatment decisions on their behalf.

Singles need estate planning to protect themselves for incapacity.  Be sure to communicate your wishes with family and friends. Tell your executor where your documents may be found and provide them with the information they’ll need so they may act on your behalf. If you would like to learn more about planning for incapacity or disability, please visit our previous posts. 

Reference: AARP (April 7, 2023) “6 Estate Planning Tips for Singles”

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Avoid Unintended Consequences with your Planning

Avoid Unintended Consequences with your Planning

The mistake can be as simple as signing a document without understanding its potential impact on property distribution, failing to have a last will and testament properly executed, or expecting a result different from what the will directs. Unfortunately, these unintended consequences are relatively common, says the article “Advice for avoiding unintended issues in estate planning” from The News-Enterprise. You can avoid unintended consequences with your planning by working with an estate planning attorney.

The most common mistake that leads to unintended consequences is leaving everything to a spouse in a blended family. Even if children don’t have a close relationship with their stepparent, they’re willing to get along for the sake of their biological parent. However, when the first spouse dies, the decedent’s beneficiaries are generally disinherited if the surviving spouse receives the entire estate.

If the family truly has blended and maintains close relationships, the surviving spouse may ensure that the decedent’s children receive a fair share of the estate. However, if the relationships are tenuous at best, and the surviving spouse changes their will so their biological children receive everything, the family is likely to fracture.

Using a revocable living trust as the primary planning tool is a safer option. An experienced estate planning attorney can create the trust to allow full flexibility during the lifetime of both spouses.  Upon the first spouse’s death, part of the estate is still protected for the decedent’s intended beneficiaries.

This way, the surviving spouse has full use of marital assets but can only change beneficiaries for his or her portion of the estate, protecting both the surviving spouse and the decedent’s intended beneficiaries.

Another common mistake occurs when married couples execute their last will and testaments with different beneficiaries. For example, if they’ve named each other as the primary beneficiary, only the survivor will have property to leave to loved ones.

An alternative is to decide what the couple wants to happen to the estate as a whole, then include fractional shares to all beneficiaries, not just the one spouse’s beneficiaries. This protects everyone.

Many people assume that if they die without a will, their spouse will inherit everything. Unfortunately, this is not always the case, and a local estate planning attorney will be able to explain how your state’s laws work when there is no will. Children or other family members are often entitled to a share of the estate. This may not be terrible if the family is close. However, if there are estranged relationships, it can lead to the wrong people inheriting more than you’d want.

Failing to plan in case an heir becomes disabled can cause life-altering problems. If an heir develops a disability and receives government benefits, an inheritance could make them ineligible. The problem is that we don’t know what state of health and abilities our heirs will be in when we die, and few will want their estate to be used to reimburse the state for the cost of care. A few extra provisions in a professionally prepared estate plan can result in significant savings for all concerned.

Estate planning is about more than signing off on a handful of documents. It requires thoughtful consideration of goals and potential consequences. Can every single outcome be anticipated? Not every single one, but certainly enough to be worth the effort. You can avoid unintended consequences with your planning by working with an experienced estate planning attorney. If you would like to learn more about mistakes in your estate planning, please visit our previous posts. 

Reference: The News-Enterprise (March 25, 2023) “Advice for avoiding unintended issues in estate planning”

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Information in our blogs is very general in nature and should not be acted upon without first consulting with an attorney. Please feel free to contact Texas Trust Law to schedule a complimentary consultation.
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