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Welcome to the Texas Probate Web Site, your source for information on estate planning, probate and trust law in Texas.  This site is owned and maintained by Glenn Karisch of The Karisch Law Firm, PLLC, of Austin, Texas.  For older information, visit the legacy site at texasprobate.net.
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Thursday
Jun232016

Fixing or killing off broken trusts

What do you do if a trust drafted 20 years ago no longer works?  A beneficiary may think her trust "doesn't work" because she isn't getting as much money as she wants from the trustee.  That trust may be working precisely the way its creator or settlor intended, even if the beneficiary is unhappy.  But what if the trust provisions impede the administration of the trust?  What if the trust will disqualify the beneficiary from receiving governmental benefits like Medicaid unless its terms are changed?

It has become increasingly apparent that there must be ways to modify or terminate irrevocable trusts in certain situations.  Court decisions and statutes provide ways to make changes to trust terms or terminate the trust if appropriate.

Fixing or Killing Off Broken Trusts is Glenn Karisch's paper on modifying and terminating trusts in Texas.  It was presented to the State Bar's Advanced Estate Planning and Probate Law Course on June 23, 2016.  It discusses judicial and nonjudicial modifications and terminations and rescission of trusts.  Some techniques are tried and true, while others (like decanting) are just beginning to be widely used.

The paper also addresses several thorny issues, including the possible duty of a trustee to seek judicial modification or termination of a trust if certain facts exist.  Finally, it offers drafting suggestions intended to avoid the need for court action to change trusts in the future.

The latest version of the paper is available here. The slides used at the June 23, 2016 presentation are available here.

Tuesday
Jun072016

Updated multiple party accounts paper now available

Glenn Karisch's paper on multiple party accounts and other non-probate assets has been updated.  It now refers to Estates Code sections rather than Probate Code sections.  It also addresses the 2013 legislative change regarding enforceability of choice of law provisions in account agreements and the 2015 legislative change regarding disclosures about account types and terms to customers of financial institutions.

It is available here.

Tuesday
Sep012015

Changes to forms effective September 1, 2015

As usual, the biennial session of the Texas legislature requires attorneys to update forms in the estate planning, probate, guardianship and trust areas.  Since most of the bills passed in 2015 became effective September 1, 2015, the new forms should be used beginning on that date.

Here is a collection of statutory changes which require form changes.  Also, Bill Pargaman, chair of the Real Estate, Probate and Trust Law Section of the State Bar of Texas, has prepared this list of important changes to note on September 1, 2015.

One-signature combo self-proving affidavit forms


The one-signature combination will and self-proving affidavit form has been changed to correct the tenses of the verbs.  Tex. Est. Code §251.1045(a).  The verb tenses also were corrected in the one-signature combination declaration of guardian and self-proving affidavit forms.  Tex. Est. Code §§1104.154 and 1104.205.

Directive to Physicians and Family or Surrogates


The statutory Directive to Physicians and Family or Surrogates form was revised slightly, including changing the term “artificial nutrition and hydration” to “artificially administered nutrition and hydration.”  Tex. Health and Safety Code §166.033.  

Word and pdf versions of the new form may be found among the disability planning forms on this website.

Appointment for Disposition of Remains


The statutory Appointment of Agent for Disposition of Remains form (Tex. Health and Safety Code §711.002) was renamed the “Appointment for Dispositions of Remains” and revised extensively. It no longer includes blanks in the body of the document for the agent to sign to accept appointment.  Rather, it provides that the instrument is valid without the signature of agents or successor agents.  At the end of the form it provides a place for the agent to accept the appointment before acting as agent. The agent’s signature after the principal’s death makes the instrument legally sufficient. Also, it automatically revokes the authority of an ex-spouse on divorce.    

Section 711.002 now includes the duly qualified executors and administrators of a decedent’s estate in the order of persons having the right to control the disposition of the decedent’s remains and provides that an executor or administrator is not personally liable for the reasonable cost of interment.

Word and pdf versions of the new form may be found among the disability planning forms on this website.

Application to probate will


In the application to probate a will, the applicant must state the date of death, not the time of death.  If the original will is not produced in court, the applicant is no longer required to state the age and marital status of each devisee or heir, but he or she must state whether or not the devisee or heir is an adult or minor.  Tex. Est. Code §§256.052 and 256.054.  If the application is to probate the will as a muniment of title, the applicant also must state the name, state of residence, and physical address where service can be had of the executor named in the will, as well as the name of each subscribing witness.  The residence address of the executor and witnesses no longer needs to be included.  Tex. Est. Code §257.051.

Application for letters of administration


In the application for letters of administration, the applicant must state the date of death, not the time of death, and the applicant is no longer required to state the age and marital status of each heir, but he or she must state whether or not the heir is an adult or minor.  Tex. Est. Code §§301.052.

Determination of heirship


In the application for determination of heirship, the applicant must state the date of death, not the time of death, and the applicant must state the physical address where service may be had of each heir and must state if each heir is an adult or a minor.  Tex. Est. Code §202.005.  Also, Sections 202.055 and 202.056 were amended to make it clear that a party may waive citation in an heirship proceeding and that no service is required on a party who enters and appearance in an heirship proceeding.  The judgment declaring heirship no longer needs to state the places of residence of heirs; it only must state their names.  Tex. Est. Code §202.201.

Affidavit or certificate of compliance with notice to beneficiaries requirement


The independent executor or his or her attorney is required to sign and file an affidavit or certification confirming compliance with the notice to beneficiary requirements of Section 308.002. Now the affidavit or certification no longer is required to state the addresses of beneficiaries. Tex. Est. Code §308.004.

Small estate affidavits


Previously a small estate affidavit had to include a list of all known estate assets and liabilities.  Now that list must indicate which assets the applicant claims are exempt.  Tex. Est. Code §205.002.  Section 205.009 was added to state that references to “homestead” or “exempt property” means only a homestead or other exempt property that would be eligible to be set aside under Estates Code Section 353.051 if the estate was being administered.  This means that, in the case of a homestead, there must be a surviving spouse or minor child and, in the case of exempt   property, there must be a surviving spouse, minor child, unmarried adult child remaining with the family or adult incapacitated child.

Disclaimers


The new Texas Uniform Disclaimer of Property Interests Act has new requirements for disclaimers and trustee notices.  Glenn Karisch's, Tom Featherston's and Julia Jonas's paper explaining the new act is available here, while Word and pdf versions of forms are available here.

Applications, reports and orders in guardianships


See the discussion of the three big changes in guardianships above for changes in applications, reports and orders in guardianships.

Physician’s certificate in guardianships


The physician’s certificate required before a guardianship may be created must state whether improvement is possible and, if so, when the proposed ward should be reevaluated.  Tex. Est. Code §1101.053.

Tuesday
Jun092015

The new Texas Uniform Disclaimer of Property Interests Act

The Texas Legislature enacted the Texas Uniform Disclaimer of Property Interests Act. Unless vetoed by Governor Abbott on or before June 21, 2015, the act will become effective on September 1, 2015.  Here is an updated version of the paper on the new disclaimer act by Glenn Karisch, Tom Featherston and Julia Jonas being presented June 10, 2015, to the Advanced Estate Planning and Probate Law Course in Dallas.  Here are forms drafted for use with the new disclaimer act.

More later. Enjoy!

Tuesday
Aug192014

Other trust law changes

The following is part of a series of posts on 2013 Texas probate, guardianship and trust law legislation.  The changes  became effective September 1, 2013.  For information on other changes, go to the 2013 Legislation page.

The big change affecting trust law in 2013 was decanting, which is discussed in a prior post.  Here are other miscellaneous trust law changes which became effective September 1, 2013:

  1. Creditor Protection for Trusts Appointed Back to Settlor.  Trust Code Section 112.035 was amended to grant spendthrift trust protection in cases where a beneficiary uses a power of appointment to appoint property in trust for the settlor.  In those cases, the trust assets enjoy spendthrift protection from the original settlor’s creditors.  Section 112.035(d)(2), (g) and (H). 
  2. Corporate Trustees May Purchase Insurance from Affiliates.  Trust Code Section 113.053(f) was amended to permit a corporate trustee to purchase insurance from an affiliate so long as the insurance product and premium are the same or similar to a product or premium offered by nonaffiliates.  The corporate trustee taking this action is expressly subject to fiduciary duties.