Legal Requirements

Yes, it’s true. Texas will recognize a will that is not even written. An oral will must meet two requirements. First, it must be spoken “in extremis,” meaning under extreme circumstances. For example, if a person is on his or her deathbed and has not had the opportunity or ability to make a written will. Secondly, an oral will must be heard by at least three witnesses that are not beneficiaries and are over 14 years of age. It is of note that an oral will can only refer to personal property, not real estate.

Oral wills are rare and date back to a time when Texas was a frontier state and many people did not know how to write. It’s highly recommended that you have a written will. Written wills have pretty basic requirements as well, though. First, they must be signed by the Testator, who must be an adult. Second, a legal will has to be written with “testamentary intent,” meaning the Testator was of sound mind at its creation. Third, it must be signed by two witnesses in front of the Testator. The witnesses must be at least 14 years old and not beneficiaries of the will.

Recommendations

While the legal requirements for a will are simple, the confusion that it may cause after your death can be complex and expensive for your family. Having an attorney draft your will helps to decrease the chances of it being challenged and your wishes not being met. An attorney can also recommend special circumstances for your will and bring up situations for which you may not have accounted. For example, if you have minor children you’ll want to make sure guardianship and a trust for their financial needs is legally established so that they are cared for as you would like. Or, you may want to stipulate that your home passes to your children if your surviving spouse remarries. You might need to appoint a long-term caregiver for a disabled spouse or child. Many variables exist beyond the simple decision of who gets your money and property.

Ford+Bergner has extensive experience in Texas estate, probate and guardianship law. Contact us for help with all your estate planning needs.

When determining whether or not you need a living trust, what are some issues to consider?

Estate complexity.  If your estate is larger and relatively complex, consisting of greater amounts of money and various properties and assets, you may derive benefits from using a living trust.  The assets in a living trust will by-pass the probate process; probate, in the case of an unusually complex estate, could be more time-consuming.  For example, if you own property outside of Texas, it would need to go through probate in that state; to avoid a multi-state probate process, you may want to place that property in a living trust.  Because probate in Texas itself is relatively straightforward and simple in the majority of cases, property ownership in another state is one of the few reasons to establish a living trust if your main purpose is to avoid probate.  There are also other ways to sidestep probate, so you may not even need a living trust.

Avoiding estate taxes.  There are many people who mistakenly believe that a living trust will automatically allow them to avoid federal estate taxes or give them other tax advantages.  This isn’t the case.  There are certain living trusts that give you tax advantages or exempt portions of your estate from taxation (such as when your relinquish them irrevocably before your death), but there also other ways to benefit from tax savings without establishing a living trust.  You may not even need to be concerned about the federal estate tax, which is why it’s important to discuss tax advantages with an experienced and reputable attorney.

Issues of incapacitation.  You may be concerned that at some point you’ll be incapacitated and unable to oversee your financial affairs.  In that case, a living trust is one possible way to have someone else help manage your assets according to the terms you set.

A living trust should never be something you rush to establish, as they may turn out to be an unnecessary expense and inappropriate for your situation.  Discussing the options with an expert probate attorney is essential; they’ll review the considerations you need to make, including your age and health, marital status and familial relationships, and the complexity of your estate.  To determine whether or not you’d benefit from a living trust, contact Ford + Bergner LLP to discuss your situation and decide on the options that maximize the advantages to you and your beneficiaries.

Get a Trusted Adviser on Your Side

Intense emotions make guardianship litigation difficult for everyone involved. When you have progressed to the point of litigation, it is clear that you and a group of other adults strongly disagree about the future care of a person requiring protection and supervision. In some cases, it may be even the prospective ward who opposes your interest in taking on guardianship duties. It is here that the right advice from seasoned litigators in the field can make a big difference. Charting a course and sticking to it is easier when trusted advisers help you see the big picture.

Understand the Challenges

If you are applying for guardianship of another, your fitness to serve in this capacity may be put into question. A prospective ward may ask the court to appoint someone else. Conversely, other adults who are willing to take on the guardianship role will actively seek to discredit you and ask that they be appointed as guardians instead of you. Protect your interests early on in the process by hiring a seasoned attorney who specializes in this aspect of probate litigation.

Work through the Process of Litigation and Beyond

In addition to the court filing, be prepared to deal with court-appointed officials who must take an interest in the proper representation of the prospective ward’s interests. It is not enough to merely win the case. Texas’ Probate Code is quite clear in its instructions on the proper conduct of an appointed guardian. Know what the law expects from you to prevent a recurrence of the litigation by another party who was not successful in the current suit.

Since Texas law allows “any interested person” to participate in a guardianship litigation process, you need to have a legal advisor with strong litigation skills on your side. The attorneys at Ford + Bergner LLP have this experience and are ready to review your case. Contact us today for assistance with this emotionally charged litigation.

A Legal Adult

As hard as it is for parents to admit sometimes, their child is considered a legal adult when he or she turns 18. While law enforcement usually seeks to contact the next of kin if an accident occurs, hospitals are not required to ask your permission prior to performing surgery or other medical treatments. In fact, medical professionals are not required to even share information about your child’s condition.

What To Do

Before heading off to school, your young adult can complete two simple documents, a health care directive and a HIPPA Authorization Form. A health care directive is a document outlining specific instructions about medical care. It details procedures you approve of and those you do not. Additionally, it allows you to appoint a health care surrogate or agent, a person that is authorized to make medical decisions for you. Having your child appoint you will give you the legal right to make medical decisions when they are not able to do so. The HIPPA form simply names you as someone who has permission to receive information about their medical condition.

Regardless of your age, having a healthcare directive is an important step to ensuring that your wishes are carried out if you are unable to communicate at the time of an accident. Ford+Bergner LLP is there to assist your family through life’s transitions. Let us help with all your estate planning needs. Contact us for practical advice tailored to fit your family’s circumstances.

During Seward’s life he accumulated thousands of items, including books, furniture and artwork.  One of the pieces, Thomas Cole’s Portage Falls on the Genesee, is a seven by five foot painting given to then Governor Seward which has been a centerpiece of the home for over 150 years.  The painting appraised in 2007 at over $20 million, five times the combined value of the rest of the Seward Estate.

The Seward House Historic Museum controls the estate and wants to sell the artifact claiming the Museum is simply not equipped to house such a priceless piece of art.  However, the Seward heirs believe the painting is the centerpiece of the house and is a symbol of William Seward’s great work.  Messenger is set to take the matter to Court in hopes they will allow him to be Appointed as administrator and block the sale of the painting.

If you find yourself engaged in a family dispute involving estate and trusts matters, contact the experienced attorneys at Ford + Bergner LLP for assistance today.

The process to correct this error is not a simple one.  The Court Order that the Department of Vital Statistics was referring to is called a Judgment Declaring Heirship.  This Judgment is a Court Order that declares the legal heirs of the decedent.  This includes the Decedent’s marital status.  

In order to complete this process, an Application must be filed with the Court.  Then, the Court will appoint an independent attorney to conduct an investigation of the decedent’s marital and family history.  Finally, a hearing is held.  During this hearing, the Applicant must secure testimony from two disinterested witnesses -  people who will not inherit from the Estate – to prove up the Application.

This process is complex and requires the assistance of an experienced attorney.  If you have questions regarding heirship issues, contact Ford + Bergner LLP today.

Family members of individuals who died as a result of the explosion have many issues to confront in the coming months.  Among those is how to handle the decedent’s estate.  Whenever an individual dies as a result of an accident, more often than not, a  wrongful death lawsuit is filed on behalf of the individual’s estate.  This litigation must be settled before the decedent’s estate can be completed.

However, this does not mean that the family should just be waiting.  The estate can and should be opened and a personal representative needs to be appointed by the Court.  Many times the personal representative for the estate will need to pursue the decedent’s wrongful death claim on behalf of the estate.  The Texas Probate Court imposes a duty on all personal representatives to pursue any and all claims on behalf of the estate, including wrongful death claims.

The attorneys at Ford + Bergner LLP are experienced in dealing with all aspects of estate litigation matters.  If you have questions concerning estate, trust or guardianship litigations issues contact our office today.

According to Mr. Zabel, a driving force of estate disputes center around the lack of clarity in the Will regarding who receives the Decedent’s tangible personal property.  This can include anything from clothes, furniture and antiques to jewelry and automobiles.  As one can imagine, if the Will says “everyone receives an equal share of the personal property”, determining who inherits the jewelry collection or the crystal glasses can become difficult.

Additionally, Mr. Zabel warns that sibling rivalry, including influence from in-laws, and over-aggressive attorneys are at the root of why most mediation proceedings break down.  However, the reduced cost of the mediation process versus the expense of litigation is sometimes the best way to entice all parties to at least attempt mediation, which Mr. Zabel recommends.  Additionally, Mr. Zabel says, “But in general, the lasting anger and bitterness of litigation doesn’t seem to occur when matters are settled by mediation.”

Mediation is one of several tools implemented by the attorneys at Ford + Bergner LLP.  Managing Partner Don D. Ford III completed the required course work to become certified as a mediator at the Straus Institute for Dispute Resolution at Pepperdine University’s School of Law in Malibu, California.

If you have questions regarding settling an estate and trust matter, contact our office today.

The story drew national attention when Goodman attempted to adopt his 43 year old girlfriend in order to shield his assets from a civil judgment.  Goodman’s girlfriend would have been a 1/3 beneficiary of the $300 million trust that benefits his children, both under 18 years of age.

The trust for his children was created before the hit and run, and therefore the trust assets are protected from any judgment against Goodman.  By adopting his girlfriend, Goodman would particularly become a beneficiary of the trust himself.

The Court struck down the adoption because Goodman intentionally hid the plans for the adoption from his ex-wife, the children’s mother legal guardian, until after the adoption appeals process had passed.  The fraud nullified the adoption and puts Goodman back where he started, without access to the protected trust assets.

This story further demonstrates that you cannot use estate and trust planning as a way to protect yourself for your own negligence.  If you have questions regrading estate or trust planning, please contact the experienced attorneys at Ford + Bergner LLP today.

The answer is yes.  Texas Probate Code Section 69 states that if after making a will, the testator’s marriage dissolves by divorce, annulment or otherwise, all provisions of the will, shall be read as if their former spouse had predeceased the testator.

What this means is that if you forget to update your will after your divorce, your former spouse will not receive any assets from your estate or be appointed executor.  If you do choose to execute a new will after the divorce that does specifically set out gifts to your former spouse, those gifts will be upheld.  But as a general rule, all provisions of your old will that made reference to your former spouse will be read as if the former spouse died before you.

If you have questions about your Estate Plan regarding divorce issues or otherwise, contact the experienced attorneys at Ford + Bergner LLP.