Wills and Divorce

It is a common practice for married couples to name each other as the beneficiary of their entire estate,  or at least a substantial portion of their estate upon death.  However, what many people do not know and often wonder is, what happens if the get divorced?  Is the will they created before the divorce still valid, although their intentions have likely changed?

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.

Powers of Attorney

Recently, a prospective client called into the office wanting to obtain a Power of Attorney over her father.  A Power of Attorney authorizes a person to act on another’s behalf as their agent.  Commonly, most people need a Financial Power of Attorney, often referred to as a Durable Power of Attorney, and a Medical Power of Attorney.

The key thing to remember when discussing Powers of Attorney is that they must be executed by the principal, or person granting the power, not by the person receiving the Power of Attorney.  This means that the person who is becoming the agent must first check to see that the person who they want to serve as Power of Attorney fo, has the mental capacity to properly execute the document.

In this prospective client’s case, the father’s mental status had already reached the point of incapacity and we were not able to execute the Powers of Attorney quite as simply.  Because of the father’s limited capacity, we would have to explore an alternate option to allow the client to care for her father, such as establishing a Guardianship.

If you or someone you know have questions concerning Powers of Attorney,please contact the attorneys at Ford + Bergner LLP for a full consultation and assessment for your needs.