Should Guardianship Be Included in Your Estate Plan?

The whole reason to create a Will and an estate plan is to dictate what happens to your estate after you pass away. However, you should also consider putting plans into place that take care of you before you pass away if you are no longer able to care for yourself or make appropriate decisions for yourself.

Guardianship is Decided by the Court

If you become incapacitated for some reason due to a long-term condition like dementia or alzheimer’s, or if you are suddently rendered incapacitated because of a car wreck or other tragedy, you will need someone to step in and make medical and financial decisions for you because you are not able to make them for yourself.  In most situations, those decisions are made by your agent under a power of attorney.  However, if you do not have a power of attorney, or if a dispute arises among your family members over the actions of the person holding the power of attorney, then the court may be required to step in and appoint a guardian.  In the event that happens, you will probably want to have the opportunity to designate who you would want to serve as your guardian.  Likewise, you may want to designate one or more persons that you do not want to serve as your guardian.  This can be accomplished by executing a Designation of Guardian in the Event of Future Need document.

Courts will often try to judge potential guardians fairly, but they do not know everything that you know about them.  By having designated a potential guardian and/or having excluded a person as a potential guardian, the Court will be guided in making a decision as to who is the most appropriate person to make decisions for you.  This is a great way to avoid fights in a guardianship case.

If you are drawing up and estate plan or fighting for guardianship of a loved one, contact us today to see what Ford + Bergner LLP can do to help you.

What Happens in Probate Court If An Estate is Broke?

After the estate of a deceased loved one goes to probate court, one of the responsibilities of the executor will be to pay off the debts of the estate before dividing the remaining assets among those listed in the Will.  However, in some circumstances, the deceased person dies owing more in debts than they have in assets to pay the debts.

Do Heirs Pay the Deceased Debts?

One of the most frequent questions we get is whether the Deceased person’s heirs are liable for the Decedent’s debts after death.  The short answer:  NO.  Beneficiaries of the estate are never on the hook for the debts of the deceased if their estate cannot cover it. However, this does not extend to spouses or other who may have signed documents agreeing to be liable for the Decedent’s debts while he or she was alive.  For instance, if a sibling of the Decedent co-signed on a car note for the Deceased, then both the Deceased’s estate and the sibling would be liable for the debt.

How Creditors Fight Back

It is natural to assume that any creditors that were owed by your loved one’s estate are not going to pleased that their debts were not satisfied. However, there is typically very little they can do about it. The only way that a creditor can fight back is to file a claim in the probate court seeking to be repaid for their debt.  If some of the creditors do not pursue their debts correctly out of the estate, then their debts may be barred and not paid from the estate.  In that instance, those creditors who properly filed their claims will receive a larger portion of the estate than they might have otherwise.

If this situation arises after the probate process, it is crucial to contact your attorney as soon as possible to prepare a case in order to fight back.

What is Probate?

It’s hard losing a loved one. Grief can reduce us, and make even simple tasks into Herculean efforts. However, when someone dies, that is when the wheels of the law start to turn. Of foremost concern to the family of the deceased is probate, which is the process of making sure a Will is genuine, and then following through on the contents of that Will.

According to The Free Legal Dictionary, the probate process is fairly straightforward. When someone dies, their case goes to a probate court.  If there was a Will, then that Will is entered into evidence, examined, and if found to be both legal and genuine then the instructions in it are typically followed. If someone dies intestate (a term that means they died without a Will to explain their desires for their property) then someone is assigned to deal with that person’s estate according to the laws of descent and distribution.

When it comes to a Will, anyone who has possession of the Will is expected to produce it and provide it to the probate court. This responsibility is typically handled by the deceased’s lawyer, but they are not the only people allowed to do this. Once it has been validated by the probate court, the Will is considered a legal document, and its instructions are followed. A unprobated Will is meaningless, in a legal sense.

Going through the probate process, especially when you’re still grieving, can be difficult. If you need assistance, or representation, all you have to do is contact us today!

Don’t Allow a No Contest Clause to Intimidate You

No contest, or in terrorem, clauses are designed to discourage beneficiaries from contesting a decedent’s Will.  Basically, it states if a beneficiary attempts to contest a Will and loses, then they forfeit their right to whatever they were left in the original Will.

Do not let the no contest clause deter you from contesting a Will especially if you feel strongly that something is not “right”.  In Texas, the courts typically do not enforce these types of clauses if the complainant can show that their objection was made in good faith and the allegations are not frivolous or unsubstantiated.

There are several reasons why you may feel the Will to be invalid or suspicious. The courts generally recognize only a few arguments. These arguments include:

Lack of testamentary capacity: This means that the decedent did not understand what was being given to whom or, in some cases, did not realize they were signing a Will.

Due execution: There are certain things that must be present in order a have a Will be considered valid.  If some of these items are missing, this can be considered grounds for contesting the document.  Witness signatures would be a requirement.  If a Will is handwritten (holographic), then it must be written in the testator’s handwriting and signed by them.

Undue influence: This refers to the case where certain individuals have sway over the testator and influence the distribution of the assets of the estate.  Typically, the majority of the assets are bequeathed to that individual instead of being distributed among other family members or friends. This distribution of assets is typically the opposite of what the decedent may have indicated in the past verbally or in previous Wills.

One of the most important decisions you will be required to make when considering to contest a Will is who you will choose to represent your interests in court.  This is certainly not a case where you will want to represent yourself.  Probate and estate law is extremely complex and can involve tax and inheritance laws as well.

You would be best served by choosing an attorney who is not only well-versed in the applicable laws, but also one who is experienced in estate litigation.

Give us a call to schedule a consultation with one of our attorneys to discuss your concerns.

Can a Guardian Change the Trustee of Their Ward’s Trust?

If you have created a trust to protect your estate for your family when you pass on, typically you maintain a certain control over it.  However, what happens if you become incapacitated?  If you become unable to take care of yourself or make decisions, the courts may appoint a guardian to look over you and your affairs.  Yet, how much power does this guardian have?  If they so choose, can they remove a trustee and take control of your trust or award it to someone else without your approval?

The answer to that varies depending on the unique circumstances of the case.  In some cases, your guardian does have that power, but they need to go to court to get it.  If your previous trustee has passed away and your successor trustee is about to be appointed, your guardian may be able to step in and say no.  Your successor trustee doesn’t even need to be exhibiting suspicious behavior.  If their mental capacity or ability to effectively manage the trust is called into question, the courts may grant the right to guardian to appoint another as long as it is in the best interests of their ward.

However, if a trustee has long taken care of a trust, has been doing so legally and successfully, and is as stable in mind as they always have been, there is very little chance that the guardian can remove them.  All a guardian needs to do is plead their case for a new trustee in court, but the court will only allow a trustee to be removed by a guardian if the trustee is somehow detrimental to the ward or their estate.

If you are a guardian of the estate and suspect wrongdoing to your ward’s trust on behalf of a trustee, contact us today. As a guardian, it may not seem like your place to step in, but you were appointed to care for your ward and their interests. Making sure a trust is well run is definitely well within their interests.

Can Probate Possibly Be Avoided? Four Ways You Can Do It

Is it possible to avoid the entire probate process? Probate is the process of having your Will recognized by the Court and having your wishes fulfilled following your death.  It is the process where your debts are paid and your remaining assets are transferred to the people you have named in your Will.

Create a Trust

One way to avoid probate is by creating a revocable living trust. Once you transfer your assets to the trust and they aren’t under your name anymore, the assets won’t have to go through probate.  Creating a trust to avoid probate can be very problematic if you do not get all of your assets transferred into the trust prior to your death.  In that case, your estate may still have to go through probate even though you have the trust.

Designate Beneficiaries

Another way is to designate beneficiaries on your accounts. Listing beneficiaries isn’t limited to life insurance and retirement plans. You can list beneficiaries on your financial accounts, such as your bank and investment accounts, so that the money goes straight to the beneficiary after death, without going through probate. This is also known as pay on death accounts. In some states, you can do this on real estate and vehicle registrations as well.

Join Tenancy Arrangements

If you co-own real estate with your spouse or someone else, you can execute a joint tenancy deed that results in the property transferring automatically upon death to the surviving spouse or co-owner.  When you do this, the property transfers directly and avoids probate.

Give It Away

Of course, you can always just give your property as a gift before you pass away. This obviously is not an option for everything, and you may have to pay taxes on your gifts.  However, many estate plans can include gifts during life to reduce someone’s estate prior to death.

For more help with estate planning, contact us today!

Where to Fit Funeral Plans into an Estate Plan?

When we start planning our estate, typically we tend to focus on where all the stuff goes. What happens to the house? How about the retirement accounts? Who should we make executor of the estate? However, what about want happens to you? Many people have a fairly good idea of what they want their funeral to be like, but the problem is that people don’t know where to put it in the estate plan.

Do you put it in the Will? No, by the time the Will is present to the Court for probate, your funeral service will already, and your remains will have been disposed.  To ensure that your remains are disposed of the way that you intend, you should consider a couple of options.  First, you should have a discussion with your closest family members to make sure that they understand your intentions.  Second, you should consider a prepaid funeral, where you select and pay for the funeral and burial options while you are alive.   Third, you can execute a document designating a person to have control of the disposition of your remains upon your death.  This document is valuable when you think that multiple people might disagree about the arrangements for your funeral and burial.

If you are getting ready to plan out your estate as well as your funeral, contact us today. The Ford + Bergner is dedicated to making sure that estate planning isn’t a huge headache.