Estate Planning Questions

What Is Estate Planning? Estate planning involves putting your affairs in order so as to maximize the benefits that your assets can provide to you during your life and to those you desire to benefit from it after your death.

Can I create my own estate plan? Estate planning is more than just creating documents. It also involves understanding the big picture and how the legal documents will work in concert with the assets at the time they are needed.

Do I need an estate plan if I hold all my assets jointly with another? This is one of the worst ways to plan your estate. If the assets are held jointly and one of the owners dies, the assets go to the surviving owners. The assets do not go to the deceased owner's children. Also, the asset may be exposed to estate and gift taxes; it does not avoid probate, just delays it until the last owner's death; it may cause estate, gift and capital gains taxes; it is subject to the creditors of all owners; and it will result in the transfer of the property to the joint owner when one owner dies, even if that was not intended taxes.

When should an estate plan be reviewed? If you already have an estate plan, it should not be considered permanent. Conditions, as well as your desires, may change. Estate plans should be reviewed at least every two-three years but, additionally, any important change in your life demands immediate review. These changes might include:

• Birth, death, marriage, divorce or disability of you or a beneficiary
• Large increase or decrease in the net worth of you or a beneficiary
• Substantial change in the type of your assets
• Purchase or sale of a business
• Change of residence to another state
• Change in tax law

What is Probate? Probate is a court proceeding to transfer title from the decedent's name to the living beneficiaries. Probate occurs in the state of your legal residence as well as any state where you own real property. The length of time to complete a Probate varies from state to state, but can take six to eighteen months, on average. Probate is frustrating to the heirs and is public record.

Do I need a Will if I have a small estate? Many people also believe that if there is no Will, all the decedent's assets will be distributed to the surviving spouse. If you do not create a valid Will, the state of Texas has a statute that will dictate where your assets go and who will administer your estate. State law may not distribute your assets to the people you want to have them.

Does a Will cover all my assets? Wills do not cover assets held as joint tenants with right of survivorship, retirement plans, annuities, life insurance, financial accounts payable on death or transfer on death designations.

What are Trusts? A Trust document is an agreement between three people dealing with assets. The Trustor is the creator of the arrangement who appoints a Trustee to hold the legal title to the subject assets for the benefit of the Beneficiary. Although there are certain legal limitations, it is possible for the Trustor and Beneficiary to be the same person and is even possible for the Trustor to serve as his own Trustee. In some situations, Trustors may wish a bank or other entity to serve as the Trustee.

What benefits does a Trust offer?

• Probate Avoidance
• Retention of privacy of family assets and finances
• Avoidance of guardianship
• Creditor protection for your beneficiaries
• Control of distribution and management of assets during life and after death

My child is married and I don't trust his spouse. How can he keep his inheritance out of her grasp just in case they get a divorce? Under Texas law, inheritances are the separate property of your child and not community property. His spouse has no rights in or to the inheritance. Of course, what your child does after he receives the inheritance can change what was once his separate property into community property. The most typical example is where the child who receives the inheritance places the assets into a joint bank account. Once he does that, it may not be his separate property anymore. So the best approach is to make sure he does not commingle these newly received assets with the joint assets of he and his spouse. Certain types of Living Trusts, like a Personal Asset Trust, can help greatly in preserving these inherited assets as separate property.

Does an A-B Living Trust have any disadvantages? A-B trusts are a type of Living Trust set up by someone who is married and is designed to reduce or eliminate the Federal Estate (Death) Tax that would normally be incurred upon the death of the second spouse to die. Keep in mind that everything has disadvantages, including A-B Trusts. Initial cost, complexity, and maintenance costs after the first spouse dies are some of these. So whether it is worthwhile or not depends upon your circumstances. A good estate planning attorney (typically not the low cost bidder) can help you decide.

REAL ESTATE QUESTIONS

What is a deed? A deed is the document that transfers ownership of real estate. It contains the names of the old and new owners and a legal description of the property, and is signed by the person transferring the property.

Do I need a deed to transfer property? Almost always. You cannot transfer real estate without having something in writing. In some situations, a document other than a deed is used -- for example, in a divorce, a court order may transfer real estate from the couple to just one of them.

Do I need a lawyer when I buy or sell a house? Buying a home will probably be the largest and most significant purchase you will make in your life. It also involves the law of real property, which is unique and raises special issues of practice and problems not present in other transactions. A real estate lawyer is trained to deal with these problems and has the most experience to deal with them.

How can an attorney help in a commercial real estate purchase? When you are purchasing commercial real estate, your attorney plays an invaluable role in protecting your and your business' interests. Below are a number of tasks you should expect your lawyer to complete during the transaction.

• Guide you through the process.
• Draft or review the purchase agreement.
• Help you navigate through the complexities of mortgage lending practices.
• Review the title to the property.
• Assist at the closing.

Pros and Cons of Business Form and Management of the Business

Sole Proprietorship - usually manages all aspects of the business.

Pros	Cons
The sole proprietor has complete autonomy in running the business.	Individual liability

General Partnership - subject to partnership agreement, all partners have equal rights in the management of the partnership.

Pros	Cons
A partnership may designate particular partners with particular skills to make decisions in that area and reserve the more important decisions to the partnership as a whole.	Each partner has rights in management and may contractually bind the partnership. Each partner is responsible for the contracts that the other partners execute and the liabilities that they incur. The possibility of disagreement and deadlock exists.

Limited Partnership -At least one general partner is responsible for the management of the limited partnership. A limited partner may not participate in the management of the business or the limited partner runs the risk of becoming personally liable for the debts and obligations of the limited partnership.

Pros	Cons
A general partner may vote on matters related to the business of the limited partnership provided such matters are subject to the approval of the limited partners. This must be spelled out in the limited partnership agreement.	An individual may be reluctant to invest in a limited partnership because of the limits on a limited partner's participation in the business. As a result, a limited partnership may experience difficulty raising capital.

Corporation -Directors and officers manage the affairs of the corporation.

Pros	Cons
Highly skilled business people usually manage corporations. An elected Board of Directors manages the corporation's business affairs; the officers execute the Board's directives and run day-to-day operations. Shareholders receive reports regarding the financial status of the corporation and receive dividends without having to provide any labor or input.	Only shareholders who are also officers or directors have any role in management of the corporation. If shareholders dislike the direction the corporation is taking, it is very difficult to have any impact on changing that direction.

Limited Liability Company -members either manage the business affairs of the company themselves or appoint a manager to operate the company

Pros	Cons
Creditors cannot seize ownership of the company or shares. There is a great deal of flexibility in determining a management structure for the company; and the members can adopt a structure best suited to the particular needs of the company.	Subject to agreement, each member has rights in management and may contractually bind the company. The possibility of disagreement and deadlock exists.