Guardianship Litigation Can Be Challenging, But Sometimes It Is Necessary

Many people have their struggles with how they are going to help an aging family member or an aging friend or neighbor who can no longer care for himself or herself, in terms of the personal welfare and financial decisions. Many people want to offer their assistance, but they may be unfamiliar on how to get the legal authority to make it happen.

The person who may need the help may have not planned ahead by signing any kind of documents that gives someone else the legal authority. On the other hand, legal documents could have been signed, but it may list someone else as a potential authority. Guardianship gives someone the legal right to make key decisions for that person you love.

If there is an issue with other family members not properly taking care of the loved one, the person is not being properly cared for at a facility, or the alleged incapacitated person doesn’t want to have a guardian, guardianship litigation will occur at the beginning of the guardianship. The adult may not have any interest or willingness to become a Ward of the state, and that person has a legal right to fight the decision. Sometimes, you will find someone who is not really looking out for the person, but they may want to do it for their own sake.

Guardianship and probate matters are not things that should be taken lightly. These matters are constantly progressing, and they can be very complicated. It is critical to have someone on your side who will be extremely focused on the matter. You will need someone who understands everything of the matter, including the seriousness.

It is very important that family members, friends, or care providers to at least try to attempt to work with someone who is incapacitated. The person should be protected from being financially exploited and abuse. If an adult doesn’t think he or she needs guardianship, there may be resistance and refusal. Guardianship may be necessary if you feel that the person you want to help could do physical harm to himself or herself, as well as financial harm.

If you are struggling with finding an answer to your situation, there are people who can help you. Contact us, and you will not have to do this alone. We can give you the help you need.

When your children aren’t receiving equal inheritance: Advice on soothing feelings and reducing the risk of estate litigation

As you work on your estate planning, one of the decisions you may make is to leave unequal portions of your estate to your child beneficiaries. Maybe you have a good reasons for doing so. However, your children may react to your decision with hurt and anger.

A recent article from Daily Finance mentions how adult children could interpret unequal inheritance as a sign that you also love them unequally. Some might choose to pursue estate litigation contesting your will or other estate documents. But even if they don’t, they might be bitterly hurt and also resentful of siblings who inherited more.

The following is some advice for reducing the chances of pain, rancor, and possible litigation:

Give your decisions careful consideration. If you’re thinking about distributing your estate unequally among your kids, make sure you have good reasons for doing so. Don’t act out of spite or impulsiveness (for example, in angry, knee-jerk reaction to a fight you may have had with one of your children).

Explain your decision to your children. Ideally, you’ll discuss your estate planning with your children when you’re still alive and in possession of full mental capacities. Even if it’s a painful subject, try to discuss your reasoning with them. In some situations, your reasons may be more understandable; for example, you might be leaving more money to an adult child who has serious medical problems and, in consequence, more expenses. In other cases, the reasons may be less acceptable to your children; you may have to prepare yourself for some fraught conversations.

Make your explanations as loving as possible. When you discuss your estate planning with your kids, keep the conversation as gentle and loving as possible. Don’t inject unnecessary rancor into it. You can also leave each child a note after your death, not only explaining your decision but also reaffirming your love for them and the fact that your decision isn’t based on favoritism.

Make your estate documents ironclad. To reduce the chances of a dispute after your death, make sure your will and other estate documents are written in an airtight and clear way, reflecting your wishes unambiguously.

When you contact us to discuss your estate planning, we will help you with every part of the process, including giving you advice on how to consider and handle a situation involving unequal inheritance. With the assistance of an experienced estate attorney, you’re more likely to succeed in having your wishes respected without alienating your child beneficiaries.

What Two Aspects of Guardianship Litigation Do You Need to Consider to Make it Legal? (Part 2)

Dealing with Guardianship of the Estate

Being guardian to an entire estate means a lot more complicated legal territory to cover. We’ll be there for you through every step if you need complete financial control of a family member. You’ll still have to attend a hearing, and the person you’re caring for may be asked to attend as well if they’re able to.

Here, the bond you put up is going to be more substantial due to your control of the person’s finances. You also have to go through the legal steps of filing for an allowance that covers all the monthly expenses while you care for your family members. This even goes as far as having to publish a notice to creditors in a local newspaper to prove the person you’re guardian to has no debt.

Contact us here at Ford + Bergner LLP so we can help you through the entire guardianship application process in both of the above scenarios. We want you to have peace of mind about gaining control over a loved one’s life and finances, especially when it’s to rescue them from abuse.

What Two Aspects of Guardianship Litigation Do You Need to Consider to Make it Legal? (Part 1)

Guardianship litigation can get very complex, especially when you need to take over guardianship of a loved one you see being taken advantage of by someone else. Many families go through similar circumstances where a family member isn’t getting the proper care they need, whether it be someone elderly or a child. When a family member steps forward to be the guardian, they’re going to need a professional attorney that specializes in guardianship litigation to navigate this complex legal path.

We can provide that for you here at Ford + Bergner LLP. But guardianship is broken into two parts that may require seeking one or the other, or both, depending on your situation. This falls under guardianship of the person and the estate.

Seeking Guardianship for a Person

When filing for this initial category, you’re designating yourself as the one caring for the person in question. And it might look like a fairly simple process, though it’s not necessarily. While it’s a little easier than guardianship for the estate, you still need legal help going through the application process and the hearing.

In the application, we’ll help you fill out the appropriate information, plus gain access to the doctor caring for the person you’ll be guardian to. Getting information from the doctor about the person’s condition is going to be essential in order to prove they need your guardianship in order to function.

Afterward, we’ll help you through the hearing process. When we’re appointed as your attorney, we’re designated an attorney ad litem where we represent the best interests of the guardian and cared for person. This means we’ll be visiting the person you’ll be caring for in the facility or home where they live. We’ll confirm their condition and also confer with them so we can nurture a good working relationship in setting your best interests in motion.

During the hearing, we’ll help you through the bond process. This is a form of insurance policy by the court so the person being cared for can be reimbursed if money is taken from them. You probably won’t have to pay very much if seeking just guardianship of the person, though you’re required to put up more money for guardianship of the estate.

After successfully gaining guardianship of the person, you only have to file annual reports to the court on the condition of the person you’re being guardian to.



Important Estate Considerations for Landowners: Making Long-Term Land Management Plans

Among people who own property, many will own only the land immediately surrounding their house, such as the yards in front and back. However, some people also have ownership of forests or grasslands; this type of land may have belonged to their family across generations.

If you have such land is part of your estate, you need to make sure that you’ve addressed important issues about its future. For example, the Texas A&M Forest Service recently announced a workshop dedicated to helping private landowners figure out the best long-term arrangements for their property, including what to do with it after they pass away. Among the topics discussed are eminent domain, land stewardship, and property inheritance.

Why are these important issues?

Under some circumstances, the government (or agents acting with government permission, such as a corporation) may move in to appropriate the property. Sometimes it’s for a particular purpose such as laying down a road or extracting fuel from the land; other times it may involve simply preserving the land solely under government management. What options do you have for your property, now and in the future, in response to eminent domain?

Planning for the future of your land also means specifying how you would like it to be taken care of after you pass away. For instance, it takes work and expertise to maintain a thriving forest land. What arrangements would you set down in estate planning documents for helping ensure the preservation of the land? Have you had the land evaluated, not only for its monetary value but also to better understand how it can be cared for?

Inheritance issues are of course also important, and may get quite complicated. For instance, do you own the land jointly with any family members? Are you planning to bestow it on multiple heirs? How would they divide it? You might also arrange to have your property become protected land or have the government manage certain aspects of the land for you through conservation easement.

When you contact us to discuss your estate planning needs, be sure to mention the concerns you have about forest lands or similar kinds of property. You need to make sure that you’re making the most advantageous arrangements, in keeping with your best interests and with preserving the land.

How Might Your Beneficiaries Be Affected by a Recent Supreme Court Ruling on Inherited IRAs? Ask an Estate Planning Attorney

Money you’ve saved up for retirement and haven’t used can be given to your beneficiaries after your death. Among the retirement accounts you may have are IRAs (or Individual Retirement Accounts).

When people bequeath an IRA to their non-spousal beneficiaries, both they and their beneficiaries often assume that the contents of the inherited IRA will be protected from creditors. If you’re planning to leave an IRA to your beneficiaries, and you know they’re having some financial struggles, this exemption from creditors’ claims may be a comfort both to you and to them, to know that the money in the account is generally secure.

But is an inherited IRA really protected from creditors?

A recent US Supreme Court ruling undermines an inherited IRA’s protection from creditors during bankruptcy proceedings.

The Supreme Court case involved a woman who inherited a traditional IRA from her mother. The account initially had $450,000, from which the woman and her husband received monthly distributions. Nine years after she inherited the IRA, the woman and her husband filed for Chapter 7 bankruptcy, at which point there was still $300,000 left in the IRA. They argued that the money in the account should be exempted from the claims of creditors. The bankruptcy trustee and creditors disagreed, arguing that an inherited IRA doesn’t really qualify as a retirement account under bankruptcy law.

Ultimately, the US Supreme Court ruled in favor of the bankruptcy trustee and creditors.

Texas state exemptions can still help

When it comes to bankruptcy proceedings, some states have explicit exemptions for inherited IRAs. Texas is one of them. For beneficiaries who live in Texas, an inherited IRA could be protected during bankruptcy if they choose state exemptions (as opposed to federal exemptions).

However, for states that don’t have explicit exemptions for inherited IRAs written into state law, this money might be up for grabs from creditors.

Consider possible future scenarios with your estate planning attorney

An important part of estate planning is considering what might happen to your money and other assets when you bequeath them to beneficiaries. Sometimes, the efforts you make to improve the financial security of a beneficiary might not work out as you intend. To increase the chances that you’ll make sound decisions about what to do with your assets and who to give your assets to, don’t hesitate to contact an estate planning attorney.

Is Gifting Your Home to Your Kids an Estate Planning Mistake?

A recent article posted to the financial advice site, Nerd Wallet, describes “10 big financial mistakes” seen every year by the author, a Certified Financial Planner. Number 10 on the list is the act of gifting children with valuable estate assets as you get older.

The asset that parents commonly consider gifting to their children is their home. Parents may do this because they think it will create less of a financial burden for their children in the long-run. However, it can wind up being a costly mistake in a number of ways, including the following:

  • There are cases where children have had their parents evicted from their homes. Children may feel that their parents should move to an assisted living facility, or they may simply want to make use of the home themselves. If you gift your home, you’re giving up a lot of control over how long you can stay there.
  • Sometimes, the home is lost to a child’s creditors or to other messy situations such as divorce. After you’ve gifted your home to your child, it can become a part of their problematic financial situation.
  • You may wind up depriving yourself of certain benefits you need, in particular Medicaid for nursing home care.
  • As mentioned in the Nerd Wallet article, your child may have to pay a hefty capital gains tax when they sell your home. When you gift your home, it retains its original tax basis (or cost) for your child; if your child then sells it, they need to a pay a tax on the difference between the current selling price and the original tax basis. However, if your child inherits the home from you, they’ll likely benefit from a “stepped-up basis” reflecting the home’s value on your date of death.

Some parents feel like they should gift their home because it will reduce the taxable value of their estate. However, there are various solutions for reducing the tax burden without necessarily gifting your home. You need to discuss these issues with a reputable estate planning attorney. Don’t hesitate to contact us to figure out the best solutions for your estate planning needs.