Can You Appeal a Probate Decision?

Appealing a probate decision is, in many ways, very different from appealing decisions in ordinary civil cases.  In most civil cases, there is generally only one order or judgment of the court that is subject to appeal.  In probate and guardianships, however, there are numerous orders and judgments that are subject to review by the appeals court.

In the 10 largest counties in Texas, we have specialized probate courts, which generally have judges with specialized training in probate.   The specialized nature of these judges helps to ensure that their rulings are generally more well-reasoned and less likely to be overturned by the appellate court.  In the other 244 counties in Texas, the judges are not specialists in probate and guardianships.  As a result, they more often make mistakes that might lead to review by the Court of appeals.

In cases of unfavorable rulings, or worse, incorrect applications of probate law, you have the right to appeal it. However, it is always important to remember that the filing period is short. In many cases, an appeal must be filed within 20 days after the judgement was signed. Failure to file within the time limit means your case may be dismissed. From here, several factors will be key in your success including the issues presented during the original probate hearing, the nature of the testimony, and the evidence presented during the trial. However, in many cases, victory may depend on the outcomes of prior appeals on similar issues.

The ultimate tool for success, however, is to hire an attorney that can represent you to the best of their abilities. Ford + Bergner LLP has a whole team of appellate lawyers who handle appeals of probate and guardianship cases.  This team is lead by a senior attorney who is Board Certified in Civil Appellate Law and has been involved in numerous appeals of probate and guardianship cases.  If you have a probate or guardianship to challenge, will contest, probate administration contest, removal action, surcharge action, or trust dispute that you need help with, contact us today so we can help you get the best possible outcome.

Probate: The How, What, and Why

The death of a loved one is an extremely difficult time for all family and friends of the deceased. Without the family member alive to state how he/she would like personal property and financial assets distributed, dissolving an estate between children and heirs can be an extremely daunting task. Thankfully, individuals who pass away with a Will put their family in a much easier position: the Will describes how the decedent wants property divided and who he/she would like to oversee the administration process (aka: the Executor). With these major questions answered by the Will, the probate process is significantly less challenging.

Once a loved one does pass away, the primary issue to resolve is finding the original Will. Most individuals keep their original will in a safe deposit box or other secure location with personal documents. In Texas, Executors have up to 4 years from the decedent’s date of death to probate the will. Meeting this statute of limitations is extremely important in order to ensure property and assets are distributed in accordance with the loved one’s wishes.

What do I need to probate a will?

Probate is the formal process of transferring property from the decedent to his/her family and loved ones. Any individual who passes away with assets in his/her name such as a bank account, house, vehicle or boat, or retirement account will require probate. In most states including Texas, the original will is required to begin this process. An experienced attorney can be exceptionally helpful guiding family through the probate process in a way that is compliant with state and federal law.

Why is probate necessary?

Probate is necessary in order to legally transfer financial accounts, vehicles, houses or personal property to other individuals. Without probating an estate within 4 years, the decedent’s final wishes will not be met. This process is also required to ensure assets are distributed in a fair manner and any charitable bequests are fulfilled. Depending on the value of assets in the estate, an attorney may recommend pursuing independent administration, Muniment of Title, or Small Estate Administration. Different methods of probate ensure each estate is administered correctly, in a timely manner, and without burdensome costs.

What if I don’t probate in time?

If a will is not probated within 4 years from the date of death, administration can be chaotic. For example, if a dad dies but the family does nothing, it is extremely difficult to then probate once the mom dies years later. If a will is not probated within 4 years, then the law allows for the Will to be probated as a muniment of title, but that method of probate is not always available.  When a muniment of title is not available, then the Texas laws of intestacy will govern how assets are distributed. This means that regardless of what the decedent wrote in his/her Will, the state law will determine what happens to financial assets and property. It is best to contact an attorney as soon as possible after the death of a loved one in order to meet any legal deadlines and start any necessary probate proceedings.

Anyone who has lost a family member or close friend knows how difficult it can be to handle the emotional stress during a time of grief. Finding an experienced attorney to assist with the probate process can provide you with peace of mind during this tough time. Contact us today to learn more about how we can help your family through times of loss.

Mistakes That Can Burden Estate Planning

Estate planning seems easy enough, but looking at it like a simple thing opens up the potential for huge mistakes that can result in potential litigation and financial consequences for the heirs. If you are looking to make estate planning as simple as possible, avoid these mistakes.

No Estate Plan

Your first and biggest mistake is not having an estate plan at all, or at least not an official one. You may be vocal with your wishes, but vocal wishes can’t be legally backed up like wishes on a notarized piece of paper.

Not Making Gifts

I know, what harm could not making gifts do? However, by gifting certain amounts to spouses, you can dramatically lower your estate tax so less of the money goes to the tax man. You and your spouse can give gifts up to $14,000 per year to as many people as you would like without having to pay gift or estate taxes on them.  Combined, the two of you could give $28,000 per year to each of your children, which can significantly reduce your estate over time.

Not Creating a Life Insurance Trust

If you have a sizable life insurance policy, then the money from that policy could result in significant taxes for you upon your death.  However, if you establish  a life insurance trust to act as the owner of your policies, you can avoid estate taxes on the life insurance benefits when you die.  This could potentially save your heirs considerable money in taxes.

Unfortunately, there are so many other big mistakes you can make in the estate planning process. If you are starting your estate plan and need the advice and representation of a skilled lawyer, contact us today.

What Happens When A Trustee Steals Assets?

The estate planning trustee is obligated to meet the terms of the trust in the management and dispersal of the assets to the beneficiaries. However, while many trustees are above-board and fulfil their responsibilities to the letter of the law, not all trustees are so honest. So what happens if you catch a trustee stealing or dubiously mismanaging trust assets?

The acts of a trustee are open to examination and scrutiny of the beneficiaries and others involved in the estate. While mistakes can sometimes be made, mismanagement that goes well beyond a simple mistake is referred to as a breach of fiduciary duty, and can be sued for as such.

If you suspect a trustee is in breach of fiduciary duty, typically a beneficiary must file a complaint with the court to begin your case. Of course, a successful case means gathering all the information that you can on the possible breach. This means requesting the accounting from the trust and examining the actions of a trustee. Since it is usually the trustee that will hand over the accounting, stalling tactics or failure to comply is highly suspicious behavior. If you find the assets of a trust and their own finances co-mingled or conflicts of interest within the trust, you have a very strong case. Finally, a forensic accounting expert should be asked to review the accounts to identify any other potential fraud.

When it is time to go to court, the more information you have, the better case you will have. However, courts will also review suspicious activity of the trustee as well. Even if fraud is not proven, it is more than likely that the trustee will be removed anyway. However, this is all a very stressful situation, and you will want a skilled lawyer by your side. If you suspect trust fraud, contact us today.

O’Quinn Estate Executor Resigns

The ongoing saga of the Estate of law Houston attorney John O’Quinn took an unexpected turn in the last couple of weeks when Gerald Treece, the executor of the estate, filed his notice with the Court that he wants to resign as the executor of the contentious estate.  Treece has served as the executor of this complex estate since O’Quinn died in 2009.

Treece, former dean of the South Texas College of Law in Houston, has had to deal with a number of complex issues in this estate.  O’Quinn’s long-time girlfriend made a claim to be his common-law spouse.  Issues have arisen with the O’Quinn Foundation.  Claims have been made that Treece has imprudently managed the estate’s assets.  The list goes on.

In the filings to the Court, the parties are asking that Cary Gray, the managing partner of another Houston law firm, replace Treece as the executor to tackle the remaining issues in this estate.

All of the issues that Treece has faced as executor of John O’Quinn’s estate are the kinds of issues that the attorneys at Ford + Bergner LLP handle for clients on a regular basis.  Should you find yourself in the midst of a contentious and complex probate matter, please call us.

Prevent Estate Litigation In Three Simple Steps

It has often been said that having a comprehensive estate plan in place is the greatest gift you can leave your children and other heirs once you are gone from this earth. After all, litigation over estates can quickly devolve into a living hell that tears families apart and results in hard feelings won’t heal for years, if ever.

No one wants to leave a mess behind upon their death, but many people simply don’t know what steps they can take while alive to ensure administration of their estate is efficient and painless for their loved ones.

By following these three steps you can greatly reduce the likelihood of estate-related legal conflicts for the people you love the most.

1. Make Sure You Have A Will

Whether you are young, middle-aged, or solidly entrenched in your golden years, you can benefit from having a last will and testament. While most people can greatly benefit from having trusts, power of attorney, and other estate planning vehicles in place, making sure you at least have a will is an important first step in protecting your assets and your loved ones. When you have no plan at all, you are leaving the window wide open for disagreements among the people you leave behind.

2. Update Your Will To Reflect Your Reality

Do you have children? Are you married? Are you recently divorced? A will is only as good as what it covers, so make sure your estate plan reflects the current reality of your life.

3. Talk To Your Children About Your Wishes

Make sure your children know you have an estate plan and know who to get in touch with once you are gone. Having information such as account numbers, estate planning documents, and the contact information of your attorney handy can greatly reduce confusion and stress in the immediate aftermath of your death.

Five Reasons To Update Your Will

Now that you have a will, you may think that you are done. However, it is important to check your will periodically and make the necessary changes to ensure that your final wishes will be followed.

Here are some reasons to update your will.

  • Any changes in your family. If you get married, divorced, have children, or lose someone that you love, it is important to make sure that your will gets updated. You may adopt, become a grandparent, lose a family member, or have another big change to your family which means that you want to add or subtract someone from your will.
  • Any changes in your relationships. You may want to make sure that some of your friends get some of your things. However, what happens if you are no longer friends? What about some of the new ones that you may acquire throughout your life?
  • If you move (especially to another state). If you have moved to another location or state, the laws may be different. This simply means that you may have to make some changes to your will. Be sure to visit a local attorney to make sure that your will still is valid and applies.
  • Any changes to your assets. Anytime you buy or sell a home, get some extra money, or even lose some, it is important to update your will. Anytime that you get a new insurance policy or pension plan, you may have new beneficiaries to add.
  • Give it a regular checkup. You should probably just glance at your will on a regular basis to make sure that it is exactly the way that you want it.

Whether you think you have had any changes in your life or not, it never hurts to check over your will at least once a year. However, if you have any changes in your family and friends, you should update it, as well as if you have any changes to your assets.

Contact us for all of your legal needs.