Providing for Children with Special Needs

One way you can help provide for a child with special needs after you are gone is by creating a Special Needs Trust. This option is preferred by many families because it allows the child to remain eligible for public assistance programs such as Medicaid and Supplemental Security Income (SSI). These programs tend to have strict eligibility requirements that are based on the financial need of the child. Often when families leave large inheritance to a child with special needs, the child will no longer meet the eligibility requirements for Medicaid and SSI. However, a Special Needs Trust allows a way around this problem.

Third-Party Special Needs Trust

There are several types of Special Needs Trusts. The most common type is a Third-Party Special Needs Trust. Generally, assets held in this type of trust do not impact your child’s eligibility for public assistance programs. These trusts are designed to cover any financial needs that are not covered by public benefits programs like Medicaid or SSI. Typically, assets from these trusts come from you as the parent and are managed by a designated trustee. The assets are not given directly to the beneficiary of the trust (your child) and cannot be used for housing or food expenses. Instead, a trustee will be in charge of distributing the trust assets to pay for things like out-of-pocket medical expenses, caretakers, education, or costs of transportation.

First-Party Special Needs Trust

Another commonly used type of Special Needs Trust is a First-Party Special Needs Trust. Often, these trusts are established when a child with special needs receives a large sum of money from an outside source, such as a settlement from a personal injury suit or proceeds from winning the lottery. First-Party Special Needs Trusts operate very similarly to Third-Party Special Needs Trusts. However, there is one main difference: If your child received government benefits during their lifetime, with a First-Party Trust, the government may be able to claim an interest in trust assets after your child dies .

Deciding whether a Special Needs Trust fits the needs of your family is something many consider when planning their estate. The attorneys at Tessmer Law Firm P.L.L.C. are experienced in Estate Planning and can assist you in making certain you have all possible scenarios covered. Our practice includes sophisticated Estate Planning issues such as high-asset estates, guardianship, conservatorship and establishing special needs trusts. Call 210-368-9708 today to schedule your confidential consultation.

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Whatever other qualifications you consider for the executor of your estate, keep in mind that an executor of an estate must be at least 18 years old and of sound mind.

People that will be disqualified to serve as executor

A person will be deemed unqualified to serve as an executor if the person is incapacitated or a felon who has been convicted of a felony under any state or federal law, unless they have been pardoned or had all civil rights restored. Additionally, a person will be disqualified if they are a nonresident of Texas who is not a natural person—meaning a living human being—or corporation and have not appointed a resident agent to accept service of process or had that appointment filed with the court. A corporation is also disqualified if they are not authorized to act as a fiduciary in Texas. Lastly, the court will disqualify any people the court finds unsuitable.

The process of getting appointed as executor

The will must be offered for and admitted to the court for probate. The judge will then determine if the will is valid. If the will is admitted to probate, the executor will then be appointed. They are then issued Letters Testamentary, which authorize the executor to act on behalf of the estate, giving the executor the authority to transfer assets and access accounts.

Duties of the executor

(1) present the will;

(2) locate and notify all beneficiaries of the will;

(3) give notice to all creditors of the decedent and pay any valid debts owed by decedent;

(4) identify all assets of the decedent and take steps to maintain and protect the assets; and

(5) distribute the assets according to the terms of the will.

Removal of an executor

If you are a beneficiary worried about how the executor of an estate is carrying out their duties, removal of that executor is possible. An executor may be removed after they are appointed for several reasons, particularly if they are not fulfilling their duties. For example, an executor may be removed if they fail to make an account or if they have been guilty of gross misconduct or gross mismanagement in their duties. If there is sufficient evidence to support a belief that an executor has or is about to misapply, embezzle, or remove from the state property entrusted to the executor’s care.

Additionally, if an executor subsequently becomes incapacitated, sentenced to the penitentiary, or becomes incapable of properly performing their duties, they may be removed. If you need help with the removal of an executor, it is best to seek the legal advice of a licensed attorney.

Tips for naming an executor

(1) Name someone close to you, someone you think will do the right thing and act according to your wishes.

(2) Name someone who will act in good faith on behalf of all the beneficiaries listed in the will.

(3) Name someone that lives in the state of Texas, if possible. This makes it easier to handle day-to-day matters without having to appoint someone within the state to accept service.

(4) Avoid choosing a corporation to serve as your executor, if possible. This way you avoid having them disqualified if they are not authorized to act as a fiduciary.

If you have any questions about naming an executor of your will or want more information, call us today at 210-368-9708 or contact us to make an appointment. Here at Tessmer Law Firm, PLLC, we want to provide you the best representation at a reasonable price. 

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An experienced Estate Planning attorney will help you go over various scenarios and be certain you have everything covered in all the right documents. While not a comprehensive list, here are some of the things you should consider.

1.     What are my assets? What are my debts?

Make a list and gather the information and documentation needed to identify all your assets and debts. Some accounts and assets are passed to beneficiaries instead of being named in a Will, such as life insurance policies. Make a list of these, too. This information will be needed by your Estate Planning attorney to make a comprehensive plan.

2.     Who will be the executor of my Will?

Typically, your spouse is your primary executor if you are married. Other options might include one of your children or a sibling. Your executor’s job is to protect your property until debts and taxes are paid and then distribute what is left according to your wishes. Choose someone you trust. 

Your executor must be at least eighteen years of age and of sound mind, meaning not judged incapacitated by a court. In Texas, you cannot name an executor who has been convicted of a felony or anyone the probate court decides has a conflict of interest. You can name a corporation as your executor, but it must be authorized to act as a fiduciary. You may want to name someone who lives near you. Your executor could be handling your estate for weeks, months, or sometimes longer. In Texas, a non-resident executor is required to appoint someone who lives in Texas to act as a “resident agent.”

3.     Who’s getting what?

For most people, it isn’t difficult to decide who to leave things to, but there are still some things to consider. Maybe there is a certain possession with special meaning to one of your children. Do you have your mother’s or grandmother’s jewelry? You may want to pass that to a son for his future bride. Do you think your kids will fight over things? Maybe you want to leave more to one person than another. Cover all your bases and spell it all out in specifics.

4.     What about the kids?

If you have young children, you will name a guardian for them in the event something happens to you. Consider this carefully. You’ll want to choose someone who is willing to take on the task of raising your children, but there’s more to think about. Should you choose someone in the same city, so your children don’t have to move? Is the person you are thinking about someone your children are close to and feel secure with? Will this person raise your kids with your values?

5.     Do I want to leave something to my grandchildren?

You may want to set up an educational trust or stipulate requirements before they receive their inheritance, such as reaching a certain age or graduating college. Depending on the size of your estate, you may need to appoint a conservator to manage any assets your children may inherit. You may want to explore the possibility of creating a trust for your children.

6.     What about my kids from my first marriage?

The formulas typically used in Texas to divide a couple’s assets at death change when one or both spouses have been married prior and have children from the previous marriage. You want to be certain that your prior children are included along with children from your current marriage. Special arrangements can be made through your will and other estate planning documents to guarantee a share of your estate to prior children. This is an area where an experienced Estate Planning attorney can help you cover all the bases.

7.     Do I want to leave something to charity?

Do you have a favorite charity or cause that you want to gift upon your passing? You may want to include a bequest to your church or your alma mater. If your estate is large enough, you might consider establishing a foundation or scholarship fund.

8.     What about my business?

Who will run your business after your passing? Are you leaving stock to your spouse or children? Do you have partners or shareholders? You may need a buy-sell agreement that controls what happens to your interest in the business after your death. What happens if you leave your business to a family member who is not interested in keeping it open? Do you have any intellectual property such as trademarks or patents? An experienced Estate Planning attorney will help you create a solid exit strategy and succession plan for your company.

9.     Do I have any special circumstances to think about?

The most common special circumstances that arise during Estate Planning are blended families and children with special needs. With a blended family, you may want to leave something to your stepchildren as well as to your biological children. Or you may want to protect your biological children’s inheritance should your spouse remarry. If you have a child with special needs, you may need a trust structured in a way that lets your child continue to qualify for benefits like Social Security Disability, or that continues to pay for living facilities or medical care after you are gone.

10.  Where can I find a good Estate Planning attorney?

There are many places to get information about Estate Planning attorneys. The Texas State Bar or local bar referral services are a good start. Ask your friends and family members for suggestions, too. Call the suggested offices and ask questions. Schedule a consultation and meet the attorneys and their staff. Choose an attorney who is a good fit for you, who is confident that he or she can help you. Trust your instincts. Choose a lawyer with a long-term relationship in mind. 

Estate Planning is not just a “one stop and done” event. As life happens and situations change, so will your Estate Plan. Having a solid relationship with one great attorney is easier than starting all over again when a new child or grandchild is born, when you experience a change in your financial circumstances or when changes in federal or state law make your estate plan outdated.

The attorneys at Tessmer Law Firm P.L.L.C. are experienced in Estate Planning and can assist you in making certain you have all possible scenarios covered. Our practice includes sophisticated Estate Planning issues such as high-asset estates, guardianship, conservatorship and establishing special needs trusts. Call 210-368-9708 today to schedule your confidential consultation.

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To many, Estate Planning sounds like something only the wealthy must worry about. When we hear the word “estate,” mental pictures of large homes and massive acreage come to mind. Perhaps we even imagine generation after generation inheriting old money and old properties. For these reasons, many have no idea they need to seek Estate Planning assistance themselves. Most aren’t even aware they have an estate to be concerned about.

If you don’t think you have an estate to plan for, think again. Nearly everyone has an estate. Your estate is simply everything you own – your car, home, bank accounts, life insurance, personal possessions, and so on. Some estates are large; some are small. The size of the estate doesn’t matter because there’s one universal truth regarding all of them: You can’t take it with you when you die.

Only two things in life are certain: death and taxes. Estate Planning will address both. A good estate plan carries out your wishes and instructions, ensuring the least amount possible is paid to taxes, legal fees, and court costs.

That is Estate Planning in a nutshell: planning in advance and naming who will receive your things after you are gone. However, there is more to the process. An Estate Plan should also:

• Include instructions for your care if you become disabled before you pass
• Name a guardian for your minor children
• Provide for loved ones who may be irresponsible with finances
• Provide for family members with special needs
• Include life insurance, disability, and long-term care insurance
• Be an ongoing process, reviewed and updated as your family and financial circumstances change over a lifetime. 

People tend to only consider Estate Planning at key times during their lives. For example, at the birth of their first child, or when they retire, or upon the illness or death of a parent. The truth is, the right time to create your Estate Plan is now, before something happens.

Begin Estate Planning with a Will

A Will is a document that provides your instructions on how to distribute your property when you pass on. Not everything you own is controlled by your Will. Joint property and assets that allow you to name a beneficiary (life insurance, IRA’s, etc.) will usually transfer. A Will has to be probated upon your death, but there are ways to avoid probate, which we will discuss in a later article.

Consider Powers of Attorney, or POAs

There are several types of POA. Some allow a person to make medical decisions for you if you are unable to make them for yourself. Others let a person to make financial decisions for you under the same circumstances. POAs can be limited in the powers they authorize to your agent, or they can be rather broad, depending on your needs and wishes.

Explore the Living Will

This is sometimes called a Medical Directive or Directive to Physicians. This document is where you outline your wishes in case you become terminally ill and need to be on life support.

This is just an example of a very basic Estate Plan. You may need other documents, depending on your estate and your situation. Your plan should be personalized to include all the things you want and need. For example, you may want to include funeral and burial instructions for your loved ones to follow. Also, pay attention to the words and definitions used in your Estate Planning documents. Some of the standard definitions may not fit your situation, especially if you have a blended or non-traditional family. Be sure that general terms like “spouse,” “heirs,” and “children” are clearly defined to fit your situation and your requests.

There are plenty of do-it-yourself Estate Planning services on the internet these days, and that is certainly better than nothing. But the best way to protect yourself and your loved ones is to consult with an experienced attorney. Then, you can be certain you have addressed every possible concern and left nothing to chance.

Now that you know the basics, are you ready to get started?  Give us a call at 210-368-9708 and schedule your Estate Planning consultation today!

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What Is Probate?

Probate is the court process that takes place after someone dies. During probate, the decedent’s Will is proven valid, then his or her property gets identified, inventoried, appraised, and distributed after any payments to debts and/or taxes. Probate typically involves paperwork and court appearances by attorneys. The estate property pays legal and court fees, which would otherwise go to the decedent’s heirs.

In Texas, a Will generally must be probated. There are different types of formal probate and some simpler procedures, too. An attorney can help decide the best route for your situation. Probate can be quick and easy, or it can be lengthy and complicated. It all depends on the estate and the circumstances involved.

The Texas Probate Code lays out the steps that must be followed:

• The Will is filed with the court and proven valid or invalid
• The court appoints an Administrator to the estate
• The decedent’s property is inventoried and reported to the court
• Any creditors are given the opportunity to file claims against the estate
• Assets left after payment of debts and expenses are distributed according to the Will.

The steps may differ slightly depending on which court is involved. If family members want to fight over the Will, the court will hear the disputes and resolve whatever issues exist. If the probate process sounds daunting, you may want to try to avoid it entirely. One way to do that is to set up a Living Trust.

A Will goes into effect only after you die, while a Living Trust takes effect as soon as you create it. A Trust can be used to distribute property before your death or after. Who should consider a Living Trust? It might be right for you if:

• You want to give someone full authority to manage your assets if you become mentally disabled
• You own real estate outside Texas
• You want to keep your estate completely private
• Your Will is likely to be challenged
• You own assets that will need to probated, and you want to avoid that

It sounds appealing, but a Trust does have some drawbacks. A Trust is more expensive to set up because it must be actively managed after it’s created. A Trust can only control the assets that have been placed into it.

Some things can be done with a Will, but not with a Trust, such as naming a guardian for your children and specifying funeral arrangements.

Which is right for you? Our experienced attorneys can help you decide. Give us a call at 210-368-9708 or contact us here and schedule your Estate Planning consultation!

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The Truth About Estate Planning

People tend to think of Estate Planning at key times during their lives. For example, at the birth of their first child, or when they retire, or upon the illness or death of a parent. The truth is, the right time to create your Estate Plan is now, before something happens. Estate Planning is an ongoing process and should be reviewed and updated as your family and financial circumstances change.

Estate planning is especially important for unmarried same-sex couples. Unlike married couples, your estate will not pass on to your partner if you die. Unmarried same-sex couples must have wills designating their partner as a beneficiary for their partner to inherit property.

Same-Sex Couples With Children

An important issue that often comes up during estate planning is naming a guardian for your minor child. It is common in same-sex relationships for only one partner to be the legal parent of a child. If both partners are not listed as legal parents, and the legal parent dies, the court will choose the child’s legal guardian.

A will allows you, as the legal parent, to express who you want as your child’s legal guardian. If you are in a same-sex relationship, your will gives you the opportunity to name you partner as the legal guardian of your child. By naming your partner as your child’s legal guardian, you increase the likelihood a judge will follow your final wishes.

While creating a will is very important, it is not the only thing estate planning includes.

An Estate Plan Should Also Include:

Powers of Attorney, or POA
Directive to Physician, or “Living Will”
Designation of Guardian

Now that you know the basics, are you ready to get started?  Tessmer Law Firm, P.L.L.C. can assist you with a complete Estate Plan suited to your individual needs. Give us a call at 210-368-9708 and schedule your Estate Planning consultation today!

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Before your divorce, you may have insurance policies, a Will or Power of Attorney that benefit the other spouse, or that names the other spouse as an executor. Before filing for divorce, you may want to make changes. Sometimes changes are prohibited after a divorce is filed, so check with your attorney. You may not want your soon-to-be-ex-spouse to have powers under a health care or general power of attorney — especially not when there is a lot of conflict and life/death decisions are at stake.

During your divorce, an Estate Plan can be a relevant part of a property settlement agreement. Sometimes, spouses agree to create trusts for each other or have will provisions that benefit the other spouse — even after the divorce. For example, the couple may agree to set aside funds in a trust to pay for a spouse to go back to school in order to re-enter the workplace. If the spouse decides not to go back to school for some reason, then that money is not lost. It can revert back to the first spouse or be used for other purposes.

Also, it is important for your attorney to review Estate Planning documents created before the divorce, because you may have taken action that limits what you can do with certain property during a divorce.

After the divorce, you will want to revise your Wills, etc. In most states, former spouses are automatically excluded from serving as trustees or estate administrators or from receiving under your Will. Your Will should be in compliance with what you agree to in your divorce. We recommend that all of our recently divorced clients review and revise their Will and Estate Plans.

Tessmer Law Firm, P.L.L.C. can assist you with a complete Estate Plan suited to your individual needs. Contact us today for a consultation at 210-368-9708. Remember, we are your San Antonio attorneys putting families first!

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Social Security rules are complex, and a “gray” divorce or remarriage can affect your benefits. Although the court cannot divide Social Security benefits, many people going through a “gray” divorce may qualify for benefits based on their spouse’s earning history.

Under current Social Security rules, in order to qualify for benefits based upon a former spouse’s record, you must have been married for at least 10 years before divorcing; be at least 62 years old; remain unmarried; have a former spouse who is qualified for benefits, and be qualified for a lesser amount of benefits based on your record.

For more information about divorce and social security benefits, call (210) 368-9708 or submit a consultation request here.

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