Tortious Interference with an Inheritance

Two cases now pending before the Texas Supreme Court will decide whether a disappointed heir can sue for money damages when someone uses improper means to cause a testator to disinherit her.

One of these cases, Kinsel v. Lindsey, was decided last year by the 7th District appeals court in Amarillo. The Supreme Court granted review, and briefing on the merits has begun. The other case, Archer v. Anderson, was decided earlier this year by the 3rd District appeals court in Austin, and a petition for review is still pending.

As recently as three years ago, the Court denied a petition for review of a similar decision from the 4th District appeals court in San Antonio, In re Estate of Valdez. The fact the Court granted review in Kinsel may indicate it is ready to recognize this tort, or it may merely indicate the Court wants to resolve a perceived conflict among the state appeals courts.

At issue in these cases is whether Texas should recognize a cause of action for “tortious interference with an inheritance.” Courts in about twenty other states have allowed a disappointed heir to sue for money damages where her expectancy has been frustrated by someone using “fraud, duress, or other tortious means” to disinherit her.

In Kinsel, the decedent’s stepchildren sued her niece and nephew and their lawyer for engineering the sale of real property that would otherwise have passed to them under the terms of a trust she had written while their father was still alive.

The plaintiffs in Anderson had managed to reinstate their uncle’s estate plan benefiting them, but then sued the estate of the lawyer who had attempted to disinherit them, in an effort to recover their considerable legal fees.

In each case, a jury awarded significant monetary damages. In each case, the appeals court said only the state Supreme Court could recognize a cause of action for tortious interference with an inheritance.

We at Ford + Bergner LLP are monitoring these cases, and we stand ready to assist you in any controversies that may arise in the settlement of a trust or estate in which you have an interest.

Alternatives to Guardianship

If you are raising a special needs child, many things will change by the time they turn eighteen years old. Many times the appointment of guardianship is necessary. However, there are a few alternatives to guardianship.

1. A Special Needs trust: this type of trust may be exactly what is necessary for your adult child to succeed. Please seek legal advice on the pros and cons of having this type of trust created.

2. Family guidance: if there is a family member that is available to provide advice, and support to the adult child, this may be used in place of guardianship. However, if this adult child is too easily influenced, this may not be the right choice.

3. Financial assistance: if finances are the only issue that this person has trouble dealing with, a financial representative could be appointed to specifically make financial decisions.

4. Assistance: if this person is capable most of the time, they can name someone as power of attorney to help them make decisions on certain areas where they may require assistance.

5. Supported living services: if this person only needs assistance with day-to-day things, then moving them to a supported living facility may be all the assistance they require.

The above alternatives are suggestions to assist you in caring for your special needs child. Please seek legal advice to better assist you in what will work best for you and your adult child. Every situation is different, and what may work best for one family may not work for another family.

For more information on alternatives to guardianship, please contact us.

Guardianship: What Can You Do When Your Child Has Special Needs?

When parents have a child with special needs, they will constantly worry about their child. The worries will grow as their child quickly reaches the age of 18. Some parents will want to know if their child will need a guardian.

Until a child turns 18 years old, the parents are the legal guardians of that child. While a child is under the age of 18, the parents will be able to make all decisions regarding medical needs, financial needs, etc.

When that child becomes an adult at the age of 18, the parents will have no authority to make financial decisions, medical decisions, school-related decisions, and more. However, a parent can decide if they should look for someone to make important decisions for their child. The person who will be named will be known as the child’s guardian.

The named guardian can make some decisions or all decisions regarding the personal needs of the person. However, not all children who have special needs will need to be appointed a guardian. Sometimes children with special needs can make their own decisions regarding their financial affairs, medical affairs, living arrangements, etc.

However, sometimes the child will need help making a few decisions. In cases like this one, someone may be appointed limited guardianship over the child. When someone has been given limited guardianship, the guardian can make some decisions that the now adult has trouble making.

Any person who is 18 years old and older can be listed as a guardian. However, it can be difficult to find the right person to become the guardian. If there are problems finding a guardian because no one can agree, the court has the right to appoint a guardian. Sometimes mediation is necessary to help everyone come to an agreement that is in the best interest of everyone.

We understand it can be very difficult to decide on who should be the guardian. If you are having difficulties, you should seek a consultation. Contact us today.

Our Experienced Probate Attorney Explains the Role of Executor

Your brother has approached you and asked that you be the executor of his estate. And you wonder: What’s an executor? And, what does that mean for me? Well, first you should be happy to know that your brother trusts you enough to ask you to take on such a big role. But, you should also understand the responsibility that goes along with this role. We’ll explain.

Responsibility of Executor

As the executor of the will, you’ll have a variety of duties as you prepare to probate your brother’s will. To start, you’ll need to notify the family members listed in the will,and you’ll need to advise that the will is about to be presented to the probate court. Copies of the will should be provided to each family member you notify.

Once the court has officially appointed you as executor, your biggest responsibility is gathering the assets, determining what bills need to be paid, and filing any necessary tax returns. The executor cannot close out the estate until all of the money and assets have been accounted for and the estate bills have been paid.

If You Cannot Serve

If you say yes now and somehow feel when the time comes you don’t think you can serve as executor, you can ask the court to not appoint you, or you can request the court relieve you of your duties. You can also retain an attorney experienced in probate law to assist you so that you don’t feel completely overwhelmed.

For more information on probate law, wills and estates, contact us to set up a consultation.

Why You’re Never Too Young for Estate Planning

If you’re a young adult, one thing that you probably don’t think about very frequently — if at all — is estate planning. After all, it might seem as if estate planning is only for older people. However, you are really never too young to start estate planning. These are a couple of reasons why.

You Never Know What Could Happen…or When

If you’re young, you probably assume that you have many years ahead of you to worry about things like wills. Hopefully, that’s true. However, accidents happen, illnesses strike when people least expect them, and young people do pass away. If you were to pass away right now, would your spouse, kids or other loved ones have what they need to take care of themselves? Would your family know what to do with your assets? Would your loved ones be aware of your final wishes, such as your desire to be cremated or buried? Estate planning helps ensure that your loved ones will be able to handle the situation in the best way possible if something does happen to you unexpectedly.

Some Things are Cheaper When You’re Younger

The truth is that you can save money by estate planning when you’re young rather than waiting until you’re older. For example, if you don’t have a life insurance policy in place, you may want to look into your options while tackling this planning. In many cases, you can enjoy lower rates if you buy life insurance while you’re still young and healthy rather than waiting until you’re older, when you might have more health issues.

As you can see, it’s not too soon to start estate planning. If you need help in getting started, contact us so that we can sit down and talk to you about your options.