Probate Court: Avoid The Downfalls With Proper Planning

What will happen to your property when you are no longer here? Well, that answer can be completely up to you, with a few exceptions. There are many people who are surprised that the things they do or do not do throughout their life can have an impact on how their properties, assets, and valuables are transferred after they have passed on.

If an executor of an estate ever hears the word probate, there will probably be a chill going across the body. However, going through a probate does not have to be this big nightmare of a process, especially if you have the right counsel. If your property goes through the probate process, it can add on to the stress and emotions that are already weak and fragile during this time.

If you understand what property items can be probate assets, you will be able to understand how you can avoid probate court.

Joint Ownership

If you have an asset that is joined with someone else, that particular asset will go to the joint owner after your death. You will not have to go through a probate if there is joint ownership in an asset. Usually there is joint ownership on a checking account or a deed.

Living Trusts

Many people choose to use a living trust as a way to avoid probate. Property that is left behind through a living trust can be given to the beneficiaries without the need of probate.

The living trust document has to list all of the property, list who will be the trustee, and list the person who will get the property when the trust maker passes away. The trustee is someone who will be responsible for taking care of the property.

Beneficiary

If someone has a retirement account or life insurance, a form can be completed that will allow you to list the person’s name who will receive the benefits after you have gone. Whatever company is holding your assets, you can simply speak to someone about changing the beneficiary designation. You will find that several companies give you the flexibility you need in doing this. You can name a primary beneficiary and contingent beneficiaries; you will also be able to divide the amount in percentages.

Ways To Avoid Trust Litigation To Keep Peace In The Family

Going through trust litigation after someone they love has passed away is not something that people will look forward to. This process can cause relatives to go at each other’s throats, and this can be highly stressful. No one wants to have to deal with arguments and disagreements, especially when you are going through one of the most difficult times in your life. You are already dealing with a loss; how can you make sure there are no family feuds over an estate?

Have Legal Documents

All of your estate planning and trust documents should be properly prepared. Sometimes a litigation happens because the documents were not prepared and drafted properly. If anyone has any major concerns about someone contesting the documents, then the documents should not be drafted alone. The documents should be customized so there will be no confusion or ambiguity.

Be Sure To Update Your Documents

If you have documents that are old or you have neglected to make significant changes when necessary, you can be setting your family up for major troubles. Your legal documents should be up to date because there will likely not be anything for anyone to contest or be uncertain about. If you need to update the beneficiaries on your life insurance policies, you should do that as soon as possible. If you have divorced and you have not made any updates to your insurance policies, then your ex-husband or ex-wife will still be listed as the beneficiary.

Everyone Needs To Communicate

Litigation typically happens because someone who may have been part of a will or an estate is no longer part of it. People will usually find out that they were either disinherited or they will find out they will not receive what they believed they were supposed to receive. If a family wants to avoid arguments or fights after a death, everything should be talked about ahead of time, before death happens. No one wants to be shocked or surprised by the things they have been told about the trust or estate.

When you take the necessary time to use the advice above, your estate planning can be the difference in keeping your family together or breaking them apart after you have gone. If you would like a consultation to discuss this, contact us.

Estate litigation and common-law marriage: A recent case in Texas

Recently in Southeast Texas, a man filed a lawsuit over what he claims was unlawful interference in the estate of his late common-law wife.

According to an article from the Southeast Texas Record, the man had known his late common-law wife for around 15 years, starting as acquaintances and then moving towards friendship and a romantic relationship, with cohabitation beginning in 2014. He claims that they had planned a special ceremony for their common-law marriage, but her health deteriorated, and she passed away.

His lawsuit claims that his late common-law wife had intended to include him in her estate plan, but other possible beneficiaries raised objections. He claims that after her health worsened, several parties conspired to push him out of her life and take advantage of her when she was in a weakened state to have him effectively removed from her estate plans.

Common-law marriage challenges

Along with the DC and several other states, Texas recognizes common-law marriages; couples don’t need to obtain an official license to declare themselves married.

During estate planning, it’s critical to include your status as a common-law spouse and ensure that there’s proof the marriage exists. For example, both parties need to have agreed that they’re married; it can’t rest on one-sided perceptions of a relationship. The couple also needs to live with each other on a continuous basis (cohabitation) and present themselves as married to other people. Ideally they’ll have witnesses, such as neighbors and friends, who can attest to this, along with various pieces of documentation – such as a service they signed up for together as husband and wife.

However, without a marriage license and without sufficient proof of common-law marriage, individuals involved in a common-law marriage might need to deal with estate litigation. Other parties, particularly children from previous marriages, might battle the right of a common-law spouse to inherit from the estate.

To reduce the chances of estate litigation, be sure to contact an experienced estate attorney. If you make sure your estate documents state your intentions clearly and explicitly include your common-law marriage, you’ll have a better chance at avoiding a legal battle. And in the event that you’re already facing such a battle, you’ll need strong legal representation.

Guardianship Litigation: How Can You Determine When It Is Needed?

Guardianship Litigation can certainly be a challenging, stressful, and emotional time for a family. For some families and under some certain circumstances, guardianship litigation may be the last hope. However, this process could be avoided if an estate is planned thoroughly and carefully.

Typically, a family talks about their loved ones health and physical and mental abilities to help determine how a loved one will be taken care of. If a family wants to avoid this type of litigation, here or some things that a spouse or other relative can choose to do:

  • The parent is moved into a nursing home
  • The parent is moved into assisted living housing
  • The elderly or ill parent lives with one of the children who are now adults

Does the parent have a diminished capacity? If not, then your loved one may feel more comfortable in having an attorney help prepare a power of attorney. If a power of attorney is assigned, guardianship litigation may not be needed because the guardian will be appointed. If your family truly wants to avoid litigation, then someone can set up a trust.

If your loved one does has a diminished capacity, then what can you do? If your loved one is married, then the husband or wife can petition a court to help determine the level of capacity. If there is no spouse, an adult child can file the petition.

The litigation process may not always consist of friendly conversations. However, whatever happens during this process, there should be a clear understanding of what is needed.

If you have a loved one who may need to be appointed a guardian because of their state of mind or health, contact us for a consultation.

Legal Battle over Robin Williams’ Estate

In August of 2014, Robin Williams passed away in his northern California home at the age of 63.  Williams is survived by his spouse, Susan Schneider Williams and his three adult children from prior marriages, Zak Williams, Zelda Williams and Cody Williams.  Robin executed a Will and Trust prior to his death that describe in detail how he intended to divide his estate, which total approximately $45 million.

However, Susan Williams has filed suit against the children seeking a Order from the Court removing the couples’ $7 million dollar home from the items described in the Will and Trust. Robin’s Estate Planning documents contain provisions that leave the majority of the Estate’s “jewelry, memorabilia and personal property items” to Robin’s children.  Susan Williams seeks to retain jewelry, memorabilia and other personal property contained in their home as community property.  Susan Williams argues that the “memorabilia and jewelry” described in the Will are items only located in Robin’s Napa Valley home, not the home that he shared with Susan Williams.  While Susan Williams’ attorney believes that this will not be a contentious dispute, Robin’s children feel that Susan is attempting to re-draft Robin’s Will to better suit her desires.

The legal battle over the Estate of Robin Williams serves as a warning that even when clear planning is in place, a blended family can easily find themselves in Court contesting the Estate of a loved one.  If you or someone you know requires assistance with an Estate Litigation matter or simply wants to plan around potential Estate Litigation, contact the experienced attorneys at Ford + Bergner LLP today.

For People with Firearms: A Look into Gun Trusts in Estate Planning

If you own any firearms, one of the questions you’ll need to address is how to include them legally in your estate.

You might have only one or two guns, or maybe it’s a larger collection. Regardless, there are legal issues with transferring these to your beneficiaries in the event of your incapacitation or death. For example, you might have beneficiaries who can’t legally own or operate firearms. But even if they are eligible, there are still restrictions and a transfer process that need attention and care. You or your beneficiaries could face serious criminal charges if you don’t account for the legal issues.

The role of gun trusts

As discussed in a recent article from Investment News, gun trusts can facilitate the legal transfer of firearms from one individual to another (they might also make the process of purchasing firearms go a little more smoothly, as the trust itself can serve as the entity that buys the firearms). By using the trust, you often don’t need as much paperwork or as many steps towards making the transfer from one gun owner to another.

When it comes to establishing a gun trust, you need to work with attorneys who understand estate law and the relevant state and federal laws for gun ownership, transfers, and sales. For example, even if you live in Texas, you might want to leave one of your guns to a family member who lives in Oregon or Utah. What are the legalities of transferring a gun across state lines? What are the gun laws for those states? (For instance, are certain types of firearms and ammunition illegal in another state?)

The trust document itself can lay out specific guidelines and restrictions for trustees and beneficiaries, so that they’re less likely to accidentally break the law.

Another important point from the Investment News article is that even if you decide not to transfer your firearms, you can make provisions in a trust for their legal sale, with the money going to your beneficiaries.

If you have any questions about this issue, don’t hesitate to contact us. With legal guidance, you can make informed decisions about what to do with your firearms while complying with all the legalities.

Francesca Hilton Passes Away

Francesca Hilton died at the age of 67 on January 6, 2015.  Francesca was the only child of well-known actress Zsa Zsa Gabor and hotel magnate, Conrad Hilton.  Francesca had fallen on hard times prior to her death, living in her car from time to time in and around Los Angeles, California.

Francesca had sought financial relief from her mother, however Zsa Zsa is currently under a guardianship and unable to make such decisions.  Prinz von Anhalt, Francesca’s step-father and Zsa Zsa’s current spouse, is the Court-appointed Guardian and cannot use any of Zsa Zsa’s money  to support Francesca.  In an effort to support herself, Francesca had been working on a book and her  long-time publicist was hoping for a book deal.

Francesca’s predicament raises a key issue that many should consider.  When parents become incapacitated and a guardianship is created, they cannot continue to support their children in any form.  The guardianship process is overseen by the Court to ensure that all of the guardianship assets are used to support the incapacitated person.  Even if a child or other family member demonstrates a pattern of support from the incapacitated person, the Court will not allow those assets to be given to the child or family member.

If you or someone you know have questions concerning guardianship or the guardianship process contact the experienced attorneys at Ford + Bergner LLP today.