As a person ages, they may require extra care and support. If you are the family member of an elder who needs assistance, you may be wondering how to provide them with the best possible care. One option is to set up a living trust as part of the estate planning process. Living trusts can help ensure that an elderly parent or other family member has access to the resources they need as they age. Although the process of setting up a living trust can seem complicated at first, there are many benefits that come with having one in place. 

What Is a Living Trust? 

A living trust is an estate planning tool that allows individuals to use their assets to meet their needs while they are alive and well, while also specifying who will receive those assets after they die. With a revocable living trust, the settlor (the person creating the trust) has the right to revoke or change the terms of the trust at any time during their lifetime. A living trust allows a person to transfer control of their assets—such as property, investments, and financial accounts—to another person in order to provide for their needs. The trustee (the person who manages the trust) will have full control over these assets and can use them as necessary in order to meet the elder’s financial needs. 

Benefits of Establishing a Living Trust 

Living trusts offer numerous benefits for elders and their families. They can provide peace of mind by allowing family members to know that their elderly loved ones are being taken care of financially without having to worry about managing their finances directly. Since living trusts are usually revocable, their terms can be adjusted if a person's needs change. They may also allow a person to begin transferring assets to other beneficiaries at any time, either before or after their death.

When a person reaches an advanced age, they will want to make sure their needs will be met and that they will receive the proper medical care if they cannot make decisions for themselves. These issues can be addressed through advance directives, which are an important part of estate planning for elders. Advance directives are legal documents that allow a person to specify their wishes for medical treatment and end-of-life care in the event that they become incapacitated and are unable to communicate their wishes to others.

Types of Advance Directives Addressed in Texas Law

There are several types of advance directives that can be included in a Texas estate plan, including:

• Medical Power of Attorney - This document will designate someone who will be authorized to make healthcare decisions on behalf of an elder in the event that they become incapacitated and are unable to make decisions for themselves. This person is known as a healthcare agent. The agent can consent to or refuse medical treatment on an elder's behalf, including life-sustaining treatment. An elder can give their agent as much or as little power as they want, and they can specify what types of treatments the agent can and cannot consent to or refuse. 

  ...

A last will and testament can be a crucial aspect of estate planning. A person's will details how their assets should be distributed among their heirs after their death, and it may allow for different items to be allocated to people such as their spouse, children, or other relatives or people who are important to them. However, some may believe that having a will is not necessary because they do not own extensive assets, and they may expect their property to simply be divided among their close family members. It is important to understand how the distribution of assets would be handled in these situations. This can illustrate the importance of creating a will that will help a family avoid uncertainty or legal disputes about how assets should be divided.

Intestate Succession in Texas

If a person dies without a will in Texas, their assets will go to their closest living relatives through a process called intestate succession. In Texas, the laws of intestate succession are somewhat complex, and they may differ depending on whether a person was married or single, whether they had any children, or whether they were survived by parents or siblings. 

If a person was married, their spouse will usually assume full ownership of any community property the couple owned together. However, if the person had children with someone other than their spouse, the spouse will retain ownership of half of the community property, and the other half of the community property will go to those children. 

After a person’s death, their family members or others who were close to them may struggle to deal with the loss of a loved one. While dealing with the legal and financial issues related to a person’s estate can be difficult enough, these matters can become even more complex when family members become involved in disputes about their loved one’s will. There are many reasons to contest a will, and many cases involve claims of “undue influence” in which someone convinced the person to create or change a will in a way that was contrary to their actual wishes. Those who are involved in these cases will need to understand the requirements that must be met to prove that undue influence occurred.

Proving Undue Influence

There are many reasons that family members may believe that someone improperly influenced their loved one. For example, a person may have had a close relationship with their grandchild, and they may have stated that they were going to leave certain assets to that grandchild in their will. However, after the person’s death, the grandchild may have found that they had been excluded from the person’s will, and the majority of the person’s assets were instead left to another family member who had helped manage the person’s finances. Because of this, the grandchild may believe that the family member who received the largest inheritance exerted undue influence and caused the person to change their will.

Not every example of influence by a beneficiary or another party is considered to be undue influence. Texas courts have stated that undue influence must involve a situation in which a party subverted or overpowered the mind of the person who made a will (the testator), and any changes to the testator’s will would not have been made if the party had not exerted influence. Simple requests to change a will may be valid forms of influence, but threats or coercion that overpowered the testator’s ability to make sound decisions may be considered undue influence.