Mental Capacity And A Will

Generally, anyone who is over the age of 18 is thought to have the ability to read a document, understand it, and sign it. This same way of thinking applies to wills. You must be able to understand that a will is being signed and you will also have to understand who will be impacted by the will.

One of the common reasons for a challenge of a will is the person’s mental capacity. If the person who signed the will does not have the mental capacity, the signed document will not be able to stand.

There is a variety of estate planning documents that can be signed, and this means there are different variations of mental capacities. When it comes to wills and other estate planning documents, how much mental capacity does a person need?

If a person hallucinates or is delusional, a person could likely be seen as not having mental capacity. However, if the person is having these hallucinations still creates a will that leaves everything to a spouse, children, and/or grandchildren, there may not be any problems.

In order for something to be valid, the person will need to know what was signed. You will be giving things to other people so you have to know what you are giving and who you are giving it to.

Many people do meet the necessary requirements that are needed to sign a will. If you are concerned about someone’s mental capacity when it comes to the signing of a will or if you have questions about when a person is unfit to create a will, contact us today for a consultation.

Why Should You Have Your Estate Plan Ready Now?

No one likes to think about dying, whether it is from old age, an illness, a car accident, etc. As difficult as it is to think about, it is an important topic to discuss. Unfortunately, many families are caught off guard by the death of someone they truly love.

Things will be even more difficult for your family to deal with if you die without a will or an estate plan. Some people do have a will or an estate plan, but it hasn’t been updated in years.

Without an estate plan, you will not have any control over what happens to your property and your assets. You will also have no control over who will get anything you leave behind.

If you have young children and you do not leave behind a will, you will not have control over who will take care of your children. The court system will have to step in and take control.

Estate planning is not just about which loved one gets a certain property or asset. An estate plan is about the instructions you leave behind. This is especially relevant if you are incapacitated and will be dependent on someone else to care for you.

Do you have concerns about what will happen to your family, property, assets, etc? Those concerns should make you want to take the right steps in getting your affairs in order.

You should have the motivation to speak with an estate planning attorney so you can get the ball rolling while you still have time.

Contact us today for a consultation.

Four Tips To Choose the Right Guardian

No parent likes to think about dying. They don’t want to think about what will happen to their children when they are not around. However, as a parent, you need to think about your children so that they are provided for if you die unexpectedly.

Naming Guardians for your children, either in your Will or by separate estate planning document prior to your death, allows you to determine who you want to care for your children if you die before your children become adults. It can be really hard to decide who should get that responsibility but here are some things to think about when choosing the right guardian for your children.

  • Pick someone that your children know, trust, and hopefully already love. You don’t want your children to have to live with strangers. Their life is going to be uprooted so much already that you should do your best to find someone who they are comfortable around.
  • Think about people who have the same beliefs as you. You want to pick parents who are going to raise your children the same way that you would. Make sure they have the same thoughts on parenting, religion, money, and other important topics for you.
  • Make sure that they can financially afford your children. Though you hope to provide for your children in your Will, you know how costly it can be to have children. You don’t want to put your children in a home where money is a big struggle.
  • Find out if they are even interested. Becoming a guardian is a big responsibility and you need to decide if they would be willing to do that for you. They may end up raising your children so you need to make sure that they are up for the job.

Finding a guardian for your children who already know and loves your child is not easy. You also need to ensure that they can afford your children and that they will raise your children the way that you want them to be raised. Then, you need to ask them if they are up for the challenge!

Contact us for all of your legal needs.

Avoid This Estate Planning Mistake When Remarrying

People who remarry later in life often forget or overlook things when considering estate planning. If you or your spouse has children or other heirs from previous relationships, it is crucial to consider the small details along with the big ones.

Consider Your Whole Estate

You and your new spouse might have valuable items that you each want to pass on to your respective children. People often account for the larger parts of an estate while forgetting personal belongings. Remember all those small trinkets and personal items that you promised to your kids and other relatives? If you don’t account for who receives those things in your will, then all those family heirlooms with little monetary value but sentimental worth will likely pass automatically to your new spouse.

You Can’t Predict Emotions

You might think that your spouse will be reasonable and give your kids what they were promised when you pass away, and this would probably be the case under normal circumstances. However, this may not be what happens when everyone is grieving your loss and emotional. If there is no proof of your wishes, your spouse has no way of knowing if you really promised something to someone. In some cases, many family members appear and all claim that they were gifted various items. Plus, your spouse could be reluctant to give away items as they also want to hold onto the things you treasured.

Those who remarry can avoid fighting and headaches when benefactors think about even the small items that are part of an estate. You can also contact us for help when drafting or editing a will.

Texas Probate Litigation News: Estate Beneficiaries are not Prevented from Challenging Wills After They Accept Benefits

An appeals court in Fort Worth recently issued an opinion that addressed two issues that frequently arise in probate estate litigation, namely, the right of a beneficiary to pre-suit discovery, and whether a beneficiary is prevented from challenging a will after he has already accepted benefits from an estate. The Court’s opinion in Re Meeker affirmed an estate beneficiary’s right to pre-suit discovery under Rule 202 of the Texas Rules of Civil Procedure. That rule gives certain individuals an opportunity to take discovery from other parties before they file a lawsuit in order to determine the validity of any claims. The Court also ruled that the beneficiary could challenge a will even after he began accepting benefits from an estate.

In a probate court proceeding that the executor had challenged in this case, the son of the individual who had executed the will sought to take pre-suit discovery to determine if his father had sufficient capacity to execute the will. He also challenged his father’s will even though he had already received a share of his father’s estate. The Appeals Court agreed with the son’s argument that he had a right to challenge the estate because his position did not conflict with any of the benefits he had already received. The Court specifically noted that if the son’s challenge was accepted, he would receive the same or a greater portion of the estate than he had already received.

This decision is not the final word on an estate beneficiary’s right to challenge a will after he has already accepted benefits from it, and the Texas Supreme Court may have the final word on this matter within the next few years. At this time, however, the import of this opinion is that at least in Texas, an estate beneficiary does not need to wait until his challenge to a will is adjudicated before he accepts benefits from an estate.

Challenges to an estate and probate litigation are often fraught with emotion and inter-family disputes. Nonetheless, estates should be distributed fairly and equitably among all potential beneficiaries. Please contact us if you have questions about your rights to benefits under an estate or if you have any questions regarding probate litigation or will challenges. The attorneys at Ford + Bergner LLP concentrate their practice on estate administration and litigation. We can help you and your family to resolve the most contentious estate disputes with a minimum of recriminations and emotions among estate beneficiaries.