Ways To Avoid Trust Litigation To Keep Peace In The Family

Going through trust litigation after someone they love has passed away is not something that people will look forward to. This process can cause relatives to go at each other’s throats, and this can be highly stressful. No one wants to have to deal with arguments and disagreements, especially when you are going through one of the most difficult times in your life. You are already dealing with a loss; how can you make sure there are no family feuds over an estate?

Have Legal Documents

All of your estate planning and trust documents should be properly prepared. Sometimes a litigation happens because the documents were not prepared and drafted properly. If anyone has any major concerns about someone contesting the documents, then the documents should not be drafted alone. The documents should be customized so there will be no confusion or ambiguity.

Be Sure To Update Your Documents

If you have documents that are old or you have neglected to make significant changes when necessary, you can be setting your family up for major troubles. Your legal documents should be up to date because there will likely not be anything for anyone to contest or be uncertain about. If you need to update the beneficiaries on your life insurance policies, you should do that as soon as possible. If you have divorced and you have not made any updates to your insurance policies, then your ex-husband or ex-wife will still be listed as the beneficiary.

Everyone Needs To Communicate

Litigation typically happens because someone who may have been part of a will or an estate is no longer part of it. People will usually find out that they were either disinherited or they will find out they will not receive what they believed they were supposed to receive. If a family wants to avoid arguments or fights after a death, everything should be talked about ahead of time, before death happens. No one wants to be shocked or surprised by the things they have been told about the trust or estate.

When you take the necessary time to use the advice above, your estate planning can be the difference in keeping your family together or breaking them apart after you have gone. If you would like a consultation to discuss this, contact us.

Estate litigation and common-law marriage: A recent case in Texas

Recently in Southeast Texas, a man filed a lawsuit over what he claims was unlawful interference in the estate of his late common-law wife.

According to an article from the Southeast Texas Record, the man had known his late common-law wife for around 15 years, starting as acquaintances and then moving towards friendship and a romantic relationship, with cohabitation beginning in 2014. He claims that they had planned a special ceremony for their common-law marriage, but her health deteriorated, and she passed away.

His lawsuit claims that his late common-law wife had intended to include him in her estate plan, but other possible beneficiaries raised objections. He claims that after her health worsened, several parties conspired to push him out of her life and take advantage of her when she was in a weakened state to have him effectively removed from her estate plans.

Common-law marriage challenges

Along with the DC and several other states, Texas recognizes common-law marriages; couples don’t need to obtain an official license to declare themselves married.

During estate planning, it’s critical to include your status as a common-law spouse and ensure that there’s proof the marriage exists. For example, both parties need to have agreed that they’re married; it can’t rest on one-sided perceptions of a relationship. The couple also needs to live with each other on a continuous basis (cohabitation) and present themselves as married to other people. Ideally they’ll have witnesses, such as neighbors and friends, who can attest to this, along with various pieces of documentation – such as a service they signed up for together as husband and wife.

However, without a marriage license and without sufficient proof of common-law marriage, individuals involved in a common-law marriage might need to deal with estate litigation. Other parties, particularly children from previous marriages, might battle the right of a common-law spouse to inherit from the estate.

To reduce the chances of estate litigation, be sure to contact an experienced estate attorney. If you make sure your estate documents state your intentions clearly and explicitly include your common-law marriage, you’ll have a better chance at avoiding a legal battle. And in the event that you’re already facing such a battle, you’ll need strong legal representation.

Guardianship Litigation: How Can You Determine When It Is Needed?

Guardianship Litigation can certainly be a challenging, stressful, and emotional time for a family. For some families and under some certain circumstances, guardianship litigation may be the last hope. However, this process could be avoided if an estate is planned thoroughly and carefully.

Typically, a family talks about their loved ones health and physical and mental abilities to help determine how a loved one will be taken care of. If a family wants to avoid this type of litigation, here or some things that a spouse or other relative can choose to do:

  • The parent is moved into a nursing home
  • The parent is moved into assisted living housing
  • The elderly or ill parent lives with one of the children who are now adults

Does the parent have a diminished capacity? If not, then your loved one may feel more comfortable in having an attorney help prepare a power of attorney. If a power of attorney is assigned, guardianship litigation may not be needed because the guardian will be appointed. If your family truly wants to avoid litigation, then someone can set up a trust.

If your loved one does has a diminished capacity, then what can you do? If your loved one is married, then the husband or wife can petition a court to help determine the level of capacity. If there is no spouse, an adult child can file the petition.

The litigation process may not always consist of friendly conversations. However, whatever happens during this process, there should be a clear understanding of what is needed.

If you have a loved one who may need to be appointed a guardian because of their state of mind or health, contact us for a consultation.

Legal Battle over Robin Williams’ Estate

In August of 2014, Robin Williams passed away in his northern California home at the age of 63.  Williams is survived by his spouse, Susan Schneider Williams and his three adult children from prior marriages, Zak Williams, Zelda Williams and Cody Williams.  Robin executed a Will and Trust prior to his death that describe in detail how he intended to divide his estate, which total approximately $45 million.

However, Susan Williams has filed suit against the children seeking a Order from the Court removing the couples’ $7 million dollar home from the items described in the Will and Trust. Robin’s Estate Planning documents contain provisions that leave the majority of the Estate’s “jewelry, memorabilia and personal property items” to Robin’s children.  Susan Williams seeks to retain jewelry, memorabilia and other personal property contained in their home as community property.  Susan Williams argues that the “memorabilia and jewelry” described in the Will are items only located in Robin’s Napa Valley home, not the home that he shared with Susan Williams.  While Susan Williams’ attorney believes that this will not be a contentious dispute, Robin’s children feel that Susan is attempting to re-draft Robin’s Will to better suit her desires.

The legal battle over the Estate of Robin Williams serves as a warning that even when clear planning is in place, a blended family can easily find themselves in Court contesting the Estate of a loved one.  If you or someone you know requires assistance with an Estate Litigation matter or simply wants to plan around potential Estate Litigation, contact the experienced attorneys at Ford + Bergner LLP today.

Trust Litigation for Undue Influence: Dealing with Coersion of Kids on a Parent

Trust litigation can be a challenging process when it involves family members attempting to gain a trust without consent of others in the family. This can be a scenario that’s devastating to you if you have a sibling who’s done this without letting you know as means of gaining access to a parent’s assets. It’s a situation we’ve seen many times with our clients at Ford + Bergner LLP, and we can help you through similar situations.

But different scenarios might arise when this happens that could create complex legal territory to tread on. It’s why you should always handle trust litigation through an experienced lawyer who has years of experience dealing with estate issues like guardianship, probate, or trusts.

What Are Typical Scenarios in Undue Influence?

Most typically, it’s a brother, sister, or other relative who happens to be taking care of an aging parent who convinces the parent to execute a trust. They may convince the parent that they deserve complete control of all assets since they’re putting in full-time as a personal caretaker. This may not necessarily be done willfully by the parent if it’s common knowledge that the parent is suffering from senility.

In this scenario, there could be some kind of threat by the sibling against the parent if they don’t start the trust. We’ve seen cases where this is proven, and it’s never pleasant. However, the parent might have done it so they could continue to have the sibling care for them. In those threat instances, the sibling might threaten to walk away as caregiver if the parent doesn’t start a trust in their name.

Proving these cases requires considerable evidence and legal preparation by us. We’ll help determine if that trust in question can be challenged under a specific category. While undue influence is one, we can also challenge a trust based on fraud, ones created while under duress, or based squarely on the parent not being mentally fit.

Contact us at Ford + Bergner LLP so we can help you if you think a trust started by a sibling should be challenged due to undue influence. We’ll help you step by step through the process by acquiring the proper evidence so you have a strong case.

Guardianship Litigation Can Be Challenging, But Sometimes It Is Necessary

Many people have their struggles with how they are going to help an aging family member or an aging friend or neighbor who can no longer care for himself or herself, in terms of the personal welfare and financial decisions. Many people want to offer their assistance, but they may be unfamiliar on how to get the legal authority to make it happen.

The person who may need the help may have not planned ahead by signing any kind of documents that gives someone else the legal authority. On the other hand, legal documents could have been signed, but it may list someone else as a potential authority. Guardianship gives someone the legal right to make key decisions for that person you love.

If there is an issue with other family members not properly taking care of the loved one, the person is not being properly cared for at a facility, or the alleged incapacitated person doesn’t want to have a guardian, guardianship litigation will occur at the beginning of the guardianship. The adult may not have any interest or willingness to become a Ward of the state, and that person has a legal right to fight the decision. Sometimes, you will find someone who is not really looking out for the person, but they may want to do it for their own sake.

Guardianship and probate matters are not things that should be taken lightly. These matters are constantly progressing, and they can be very complicated. It is critical to have someone on your side who will be extremely focused on the matter. You will need someone who understands everything of the matter, including the seriousness.

It is very important that family members, friends, or care providers to at least try to attempt to work with someone who is incapacitated. The person should be protected from being financially exploited and abuse. If an adult doesn’t think he or she needs guardianship, there may be resistance and refusal. Guardianship may be necessary if you feel that the person you want to help could do physical harm to himself or herself, as well as financial harm.

If you are struggling with finding an answer to your situation, there are people who can help you. Contact us, and you will not have to do this alone. We can give you the help you need.

When your children aren’t receiving equal inheritance: Advice on soothing feelings and reducing the risk of estate litigation

As you work on your estate planning, one of the decisions you may make is to leave unequal portions of your estate to your child beneficiaries. Maybe you have a good reasons for doing so. However, your children may react to your decision with hurt and anger.

A recent article from Daily Finance mentions how adult children could interpret unequal inheritance as a sign that you also love them unequally. Some might choose to pursue estate litigation contesting your will or other estate documents. But even if they don’t, they might be bitterly hurt and also resentful of siblings who inherited more.

The following is some advice for reducing the chances of pain, rancor, and possible litigation:

Give your decisions careful consideration. If you’re thinking about distributing your estate unequally among your kids, make sure you have good reasons for doing so. Don’t act out of spite or impulsiveness (for example, in angry, knee-jerk reaction to a fight you may have had with one of your children).

Explain your decision to your children. Ideally, you’ll discuss your estate planning with your children when you’re still alive and in possession of full mental capacities. Even if it’s a painful subject, try to discuss your reasoning with them. In some situations, your reasons may be more understandable; for example, you might be leaving more money to an adult child who has serious medical problems and, in consequence, more expenses. In other cases, the reasons may be less acceptable to your children; you may have to prepare yourself for some fraught conversations.

Make your explanations as loving as possible. When you discuss your estate planning with your kids, keep the conversation as gentle and loving as possible. Don’t inject unnecessary rancor into it. You can also leave each child a note after your death, not only explaining your decision but also reaffirming your love for them and the fact that your decision isn’t based on favoritism.

Make your estate documents ironclad. To reduce the chances of a dispute after your death, make sure your will and other estate documents are written in an airtight and clear way, reflecting your wishes unambiguously.

When you contact us to discuss your estate planning, we will help you with every part of the process, including giving you advice on how to consider and handle a situation involving unequal inheritance. With the assistance of an experienced estate attorney, you’re more likely to succeed in having your wishes respected without alienating your child beneficiaries.

Five Steps to Help Avoid Estate Litigation

Having to go to court to settle the estate of a loved one is stressful on many levels. Litigation diminishes the value of your estate and delays its dispersal. Perhaps worst of all, estates embroiled in litigation due to ambiguity and questions about the deceased intent can tear a family apart, leaving lifelong scars.

There is action you can take to help avoid having your estate fought over in court. These five steps can add clarity to your intentions and reduce the possibility of your estate going through expensive and unnecessary litigation.


  • It sounds simple; communicate to your heirs what your intentions are and how you want your estate distributed.  This is very important when the disposition is not typical, that is not  to natural heirs. If your estate is to be distributed unevenly or if a child is to be left out it is best to discuss the issue with them or leave a letter of explanation. More often than not it is the expectant heir that is left out or slighted that seeks a remedy in court; a letter of explanation can effectively keep their claim out of court.
  • Make sure your estate documents are properly prepared; drafted by a trusted lawyer. The main reason for estate litigation is improperly drafted wills and trusts. Avoid online trust and will mills, the cookie cutter approach will leave you with documents rife with ambiguity. Properly drafted, customized to your individual circumstances, estate planning documents can assure that your estate is settled quickly and in accordance to your wishes.
  • Periodically review and update your estates documents. An entire estate can be dragged into court because beneficiaries were not added or removed due to life circumstances. Just imagine the legal conundrum of disposing of a payable on death account whose beneficiary dies before the author. The review should also include updating the beneficiaries on life insurance, pensions and IRAs.
  • Dividing up personal property is often a battle ground for surviving family members. It is not uncommon for disputes over personal items with more sentimental than monetary value to hold up the administration of an estate. By leaving specific instructions in your will or trust; or by using an easily updated personal property memorandum you can eliminate any questions in regard to your personal property and who should receive it at your passing.
  • It is possible to preempt disputes over your estate by including a “no contest” clause. This clause attempts to discourage litigation of wills and trusts by providing that an heir challenging the provisions of your estate documents will be excluded from any inheritance. This clause carries varying weight depending on where you live; and it does not preclude an action brought against your estate made with probable cause and in good faith.

Your estate is the legacy you leave to your loved ones, having implications both financial and emotional that will last long after you are gone. The guidance of a qualified estate planning attorney can help you make that legacy a long and fruitful one for your family.

Trust Litigation Issue: Considering the Use of Mandatory Arbitration Clauses

Trust litigation battles can not only be expensive and time-consuming; they may also lead to lasting damage in relationships between family and friends and expose private family problems to the public.  In general, it’s preferable to find a way to resolve trust-related disputes before they become a drawn-out court battle.

A recent article from WealthManagement.com discusses the possibility of using mandatory arbitration clauses in trust agreements in order to reduce the chances of a trust conflict turning into a costly and damaging trial in court.

One issue to consider is the enforceability of arbitration clauses.  According to a decision (Rachal v. Reitz) reached recently by the Texas Supreme Court, these clauses can be enforceable.  In this case, two brothers were the only beneficiaries of their father’s trust; when their father was alive, he was the trustee, but after his death the role was taken on by an attorney who had written up the trust.  One of the brothers sued this attorney for mismanaging the trust assets and failing to give an account of the status of these assets.

However, the trust agreement included an arbitration provision.  Though lower courts didn’t see this as enforceable, the Texas Supreme Court judged that it was.

Should you use a mandatory arbitration clause?

Not all issues that arise from a trust dispute are easily resolvable through arbitration.  Before writing any such clause into a trust agreement, it’s best to consult with attorneys not only about the enforceability of the clause but also about the usefulness of arbitration in your specific circumstances.

An attorney can also help you weigh the likelihood of a trust dispute, given the extent and complexity of the assets and the individuals named as beneficiaries; some circumstances are potentially more fraught with the possibility of litigation than others.  Are there any beneficiaries who would see it as advantageous to push for litigation? In contrast, who would benefit from arbitration?

Discuss different scenarios with the attorneys at Ford + Bergner  to get a better picture of what issues could arise.  And as much as possible, try to work out any issues between trustees and beneficiaries before drawing up the trust; as much as you can, keep loved ones and other trusted people involved with what’s going on throughout the whole process.

Estate Of Famous Modern Artist Loses Fraud Lawsuit

Alexander Calder was a modern artist best know for popularizing mobiles as artwork (you can see examples of his pieces here), and Calder was rare in that he was an artist who achieved great financial success through his art.

When he died in 1976, Calder’s pieces were selling for millions of dollars. Museums and art collectors continue to pay top dollar for them today.  In 2010, Calder’s family members, acting on behalf of his estate, filed a lawsuit against his longtime art dealer Klaus Perls alleging that he systematically defrauded Calder and his heirs by withholding millions from the sale of Calder’s artwork.

On Dec. 24, 2013, a judge dismissed the lawsuit, saying that the representatives of Calder’s estate failed to show that Perls sold Calder’s artwork without the knowledge of Calder’s heirs.

This case is a great example of estates that can remain complex for many years.  Especially when an artist, musician, or the like has art or music that may generate residual benefits to their heirs, the estate may have ongoing interests for many years that may need to be collected.  These issues can be very complex and can often result in litigation to collect the estate’s interest in these assets.

For a more comprehensive understanding of complex estate issues, we invite you to contact us and schedule a consultation. We would be happy to advocate your interests.