25 Oct 10 New Laws That Concern Elders, Estate Planning And Probate
Although there are dozens of new laws in Texas, the following (in no particular order) are just some that affect estate planning, probate, guardianship and the elderly.
- Homesteads Held in Revocable Trusts Need Specific Language to Have Homestead Property Tax Exemption and Homestead Exemption for Creditor Protection
The Texas Tax Code requires certain language for the homestead property tax exemption if held in a revocable living trust. However, that language slightly differs from the Texas Property Code as far as the homestead exemption for creditor protection. As a result, if you have a revocable living trust that owns your homestead, then it should be reviewed if creditor protection is desired. In the event the revocable living trust was prepared in another state and the homestead is in the trust, then it is unlikely that homestead exemption language was included.
- Exempt Property – Surviving Spouse Right to Over 65 Homestead Exemption Without Reapplication
As of January 1, 2024, a surviving spouse will not need to reapply for the homestead exemption if the deceased spouse was over age 65 at the time of his or her death.
- Surrender of Driver’s License for Personal Identification Certificate
As of September 1, 2023, if you are 65 or older and you surrender your driver’s license, then you can apply for a personal identification certificate online or by phone.
- Remote Judicial Proceedings Authorized Permanently
As a result of the pandemic, remote hearings (i.e., by Zoom) were temporarily permitted. As of September 1, 2023, remote judicial proceedings can be continued to be held if the parties to the proceeding do not object. For example, many courts permit uncontested probate hearings by Zoom (although some judges still require an appearance at the court).
- Clarification of Effective Date on How Long a Trust can Last
Although this will not affect most, there is more clarity as to how long a trust can last after it becomes irrevocable – the later of 300 years or 21 years after a life is in being at the time of effective date plus a period of gestation. Wills with trusts and revocable living trusts should contain this or similar language to not violate what is called the “Rule Against Perpetuities.”
- “Purpose Trusts” no Longer Require Ascertainable Beneficiary
Sometimes it is desired for a business to be continued for employees or a family compound be maintained or collectibles be preserved. It is no longer required that an ascertainable beneficiary be named in a noncharitable trust. However, a trust enforcer would need to be named to enforce the terms of the trust.
- Out of State Wills Meeting Texas Requirements
If a Will signed in another state complies with Texas law to make it a valid written Will, then it does not need to meet the requirement of proving that the Will is valid in the state where the Will was written as previously required.
- Felon can Serve as an Executor
A convicted felon named as an executor in a Will who is otherwise qualified to serve as an executor can now serve as an executor if the court approves. See our article Fiduciary Felon Fine.
- Written Designation of Guardian
The surviving parent of an adult ward can name who is to be in charge of the assets to be inherited by the ward by an instrument other than by a Will. It also allows for the designation to take effect in the event that the parent resigns and allows the parent to name different eligible persons to serve as guardian of the person (the one who takes care of the ward and makes medical decisions for the ward) and guardian of the estate (the one responsible for handling the assets for the benefit of the ward).
- Abandoning or Endangering an Elderly or Disabled Individual
As of September 1, 2023, it is now a felon to abandon or endanger an elderly or disabled individual. The Estates Code also added a presumption that it is not in the best interest of the ward to appoint a guardian of a person who has been convicted of abandoning a child, elderly or disabled individual.
If interested in learning more about this article or other estate planning, Medicaid and public benefits planning, probate, etc., attend one of our free upcoming Estate Planning Essentials workshops by clicking here or calling 214-720-0102. We make it simple to attend and it is without obligation.