How Should You Prepare For Your Meeting With A Potential Probate Attorney?

The death of someone you love is always a difficult and painful time in your life. Through all of the other processes you have to go through, you also have to deal with the legal processes and procedures. Management of assets, such as properties and estate can always be a difficult task to face, especially under circumstances like this one. Management needs to be handled in a professional and careful manner.

So, it is a wise choice to hire a probate attorney who will be able to complete the dispersal of the estate. From where you stand, the process may seem complicated and difficult, buy an attorney with experience can make sure the process will be smooth and pain f

What To Ask A Probate Attorney

  • Ask about the level of experience and the area of specialty.
  • Ask what papers and documents you will need to bring with you when you have your consultation.
  • Ask if there are any problems that may occur during the process.
  • Ask the attorney about the kind of probate cases he or she has handled.
  • Ask about past clients.
  • Ask about the legal fees.
  • Ask about the choice of communication methods.

Meeting with a probate attorney can be a bit nerve-wrecking and overwhelming. It can be very easy to forget to take your necessary documents with you, and to ask questions you wanted answered. If it is your first meeting or your third meeting with a probate attorney, you can write down a list of questions that you would like to address during your meeting. When you write down your questions and bring them with you, you will have everything in front of you.

A main goal at your consultation meeting is to be able to determine if you are going to hire the probate attorney sitting in front of you. When you take time to be prepared for your meeting, you will assure yourself that you are going into the meeting with the right mind frame and the right paperwork to give the attorney everything he or she needs to start working on your case.

If you are looking for an probate attorney to help ease your family members pain by dealing with the legal complications, contact us.

Questions of probate privacy raised in the Harold Simmons case

After Texan billionaire Harold Simmons recently passed away, his widow filed to seal documents related to the probate of his estate, including his will.

Regardless of what the judge considering her request ultimately decides, it’s important to think about the issues this case raises.  Generally, documents going through probate court are available to the public.  But families also have concerns about privacy, and the kinds of financial and personal information available on these documents could lead to undesirable exposure.

According to Simmons’ widow, leaving the documents open to the public will pose a security threat to beneficiaries of the will and perhaps endanger certain assets that are listed.

Ultimately, the question is how to best balance the right of the public to know what’s in the documents and the right to privacy and security for individuals going through the probate process.

How do these privacy issues affect Texans?

For some Texans, probate privacy won’t even be an issue; here are a few reasons why:

  • Depending on the assets that make up the estate, probate may not even be necessary.  Certain assets, such as proceeds from life insurance, can be transferred to a beneficiary without the need for probate.
  • Assets held in a living trust also don’t need to go through the probate process.
  • Under some circumstances, an independent executor can file an affidavit instead of filing a full inventory of assets during the probate process.

There are other reasons privacy isn’t always a major issue in these matters.  Most people’s major assets can already be easily discovered and different kinds of personal information (e.g. who’s on your marriage license) are a matter of public record.

In general, probate in Texas is a relatively quick and straightforward process, and in some cases you may not need probate at all.  If you do have concerns about privacy or want to know more about what information could be made public in probate-related documents, you should discuss these issues with a trusted estate planning attorney; an experienced attorney will look after your interests and advise you on the best solutions for your case.

Can a Death Certificate Be Changed?

A potential client called asking how to change his recently deceased wife’s death certificate.  He had been told by the department of vital statistics that he would need a Court Order to do this.  The man and his wife had been separated for a few months before her untimely death, but were not yet legally divorced.  However, this did not prevent the wife’s sister from reporting her as single on the death certificate.  As crazy as it sounds, this happens more often than many would believe.  

The process to correct this error is not a simple one.  The Court Order that the Department of Vital Statistics was referring to is called a Judgment Declaring Heirship.  This Judgment is a Court Order that declares the legal heirs of the decedent.  This includes the Decedent’s marital status.  

In order to complete this process, an Application must be filed with the Court.  Then, the Court will appoint an independent attorney to conduct an investigation of the decedent’s marital and family history.  Finally, a hearing is held.  During this hearing, the Applicant must secure testimony from two disinterested witnesses –  people who will not inherit from the Estate – to prove up the Application.

This process is complex and requires the assistance of an experienced attorney.  If you have questions regarding heirship issues, contact Ford + Bergner LLP today.

Tragedy in West, Texas

As many are aware, the City of West, Texas suffered a catastrophic tragedy on the evening of April 17, 2013.  An explosion at a fertilizer plant caused severe damage to the community, including multiple causalities.  Many questions remain how families and the community will rebuild in the aftermath.

Family members of individuals who died as a result of the explosion have many issues to confront in the coming months.  Among those is how to handle the decedent’s estate.  Whenever an individual dies as a result of an accident, more often than not, a  wrongful death lawsuit is filed on behalf of the individual’s estate.  This litigation must be settled before the decedent’s estate can be completed.

However, this does not mean that the family should just be waiting.  The estate can and should be opened and a personal representative needs to be appointed by the Court.  Many times the personal representative for the estate will need to pursue the decedent’s wrongful death claim on behalf of the estate.  The Texas Probate Court imposes a duty on all personal representatives to pursue any and all claims on behalf of the estate, including wrongful death claims.

The attorneys at Ford + Bergner LLP are experienced in dealing with all aspects of estate litigation matters.  If you have questions concerning estate, trust or guardianship litigations issues contact our office today.

Mediation in Estate Disuputes

Recently, the Wall Street Journal published an article discussing the use of mediation as a method to resolve estate and trust disputes.  The Journal asked a series of questions to William Zabel, a Estate and Trust Attorney from New York.

According to Mr. Zabel, a driving force of estate disputes center around the lack of clarity in the Will regarding who receives the Decedent’s tangible personal property.  This can include anything from clothes, furniture and antiques to jewelry and automobiles.  As one can imagine, if the Will says “everyone receives an equal share of the personal property”, determining who inherits the jewelry collection or the crystal glasses can become difficult.

Additionally, Mr. Zabel warns that sibling rivalry, including influence from in-laws, and over-aggressive attorneys are at the root of why most mediation proceedings break down.  However, the reduced cost of the mediation process versus the expense of litigation is sometimes the best way to entice all parties to at least attempt mediation, which Mr. Zabel recommends.  Additionally, Mr. Zabel says, “But in general, the lasting anger and bitterness of litigation doesn’t seem to occur when matters are settled by mediation.”

Mediation is one of several tools implemented by the attorneys at Ford + Bergner LLP.  Managing Partner Don D. Ford III completed the required course work to become certified as a mediator at the Straus Institute for Dispute Resolution at Pepperdine University’s School of Law in Malibu, California.

If you have questions regarding settling an estate and trust matter, contact our office today.

TV’s “The Jeffersons” actor Sherman Hemsley Estate Dispute Settled

The Probate Judge of El Paso County, Texas has ordered a DNA test in the Estate of actor Sherman Hemsley after a before unknown relative stepped forward .  You may remember Mr. Hemsley from his role as George Jefferson in the TV shows “The Jeffersons”.

Hemsley’s Will named his manager Flora Enchinton Bernal as his sole beneficiary and Executor of the estate.  However, a dispute arose when a Philadelphia man, claiming to be Hemsley’s half-brother, filed in the Probate Court claiming to be the brother of the deceased actor.  Due to the dispute, Judge Patricia Chew ordered DNA testing to confirm the allegations.  The Order delayed the trial in the estate and Hemsley’s body had to kept frozen in an El Paso funeral home.  Because of this, the funeral was delayed for four months.  The issue has now been settled, as Chew ruled the original Will to be valid.  Hemsley relocated to El Paso later in his life, and has resided in the State of Texas for the last 20 years.

The litigators at Ford + Mathiason LLP specialize in Estate, Trust and Guardianship litigation.  If you are considering contesting a Will or are currently engaged in estate ligation, contact Ford + Mathiason LLP for assistance.

Stopping Frivolous appeals

The story goes like this:  you find yourself mired in a long and expensive probate litigation case.  The other side has no case whatsoever, but they have assured you that even if they lose they will be happy dragging this out as long as it takes.  After years of legal battles, your day in court comes and you win.  Great, right?  Everyone goes home and your troubles are finally behind you.

But wait…

At the last second, despite the fact that the opposing side was hammered in trial court, the other side files a notice of appeal.  This can’t go on forever right?  Surely there must be something you can to do prevent someone from simply litigating out of spite, right?

The answer is yes, there is something you can do.

Now from the outset I should note that appellate review is the right of every Texan and is one of the foundations upon which our legal system is built.  That being said, there comes a time where a litigant is merely dragging a case on for no reason other than spite, and in those circumstances, help is available.

Appellate courts have the authority to assess damages for frivolous appeals.  The main question is whether the appellant had reasonable grounds to believe that the judgment could and should be reversed.  The Courts consider such factors as the reporter’s record (or lack thereof), the quality of the brief and if it contains actual arguable issues, and failures to meet deadlines or show up for oral argument.

If the Appellate Court looks at a case, and it is clear that the party had no reasonable expectation of reversal, that party will be subject to penalties.  Courts also look to legal precedent to determine if the Appellant raised any questions that were contrary to well-established principles of law.  If a party ignores clear legal precedent, and doesn’t make a legitimate argument for a change in the law, that party is again subject to penalties.  Additionally, a party can be subject to penalties if it refuses to accept the Court’s verdict and relitigates on that basis alone.

So you see, there are ways to deal with unreasonable appeals.  Sanctions can and should be sought in cases of frivolous appeals.  Call us today if you find yourself dealing with such a matter.  713-260-3926