Don’t Allow a No Contest Clause to Intimidate You

No contest, or in terrorem, clauses are designed to discourage beneficiaries from contesting a decedent’s Will.  Basically, it states if a beneficiary attempts to contest a Will and loses, then they forfeit their right to whatever they were left in the original Will.

Do not let the no contest clause deter you from contesting a Will especially if you feel strongly that something is not “right”.  In Texas, the courts typically do not enforce these types of clauses if the complainant can show that their objection was made in good faith and the allegations are not frivolous or unsubstantiated.

There are several reasons why you may feel the Will to be invalid or suspicious. The courts generally recognize only a few arguments. These arguments include:

Lack of testamentary capacity: This means that the decedent did not understand what was being given to whom or, in some cases, did not realize they were signing a Will.

Due execution: There are certain things that must be present in order a have a Will be considered valid.  If some of these items are missing, this can be considered grounds for contesting the document.  Witness signatures would be a requirement.  If a Will is handwritten (holographic), then it must be written in the testator’s handwriting and signed by them.

Undue influence: This refers to the case where certain individuals have sway over the testator and influence the distribution of the assets of the estate.  Typically, the majority of the assets are bequeathed to that individual instead of being distributed among other family members or friends. This distribution of assets is typically the opposite of what the decedent may have indicated in the past verbally or in previous Wills.

One of the most important decisions you will be required to make when considering to contest a Will is who you will choose to represent your interests in court.  This is certainly not a case where you will want to represent yourself.  Probate and estate law is extremely complex and can involve tax and inheritance laws as well.

You would be best served by choosing an attorney who is not only well-versed in the applicable laws, but also one who is experienced in estate litigation.

Give us a call to schedule a consultation with one of our attorneys to discuss your concerns.

Can a Guardian Change the Trustee of Their Ward’s Trust?

If you have created a trust to protect your estate for your family when you pass on, typically you maintain a certain control over it.  However, what happens if you become incapacitated?  If you become unable to take care of yourself or make decisions, the courts may appoint a guardian to look over you and your affairs.  Yet, how much power does this guardian have?  If they so choose, can they remove a trustee and take control of your trust or award it to someone else without your approval?

The answer to that varies depending on the unique circumstances of the case.  In some cases, your guardian does have that power, but they need to go to court to get it.  If your previous trustee has passed away and your successor trustee is about to be appointed, your guardian may be able to step in and say no.  Your successor trustee doesn’t even need to be exhibiting suspicious behavior.  If their mental capacity or ability to effectively manage the trust is called into question, the courts may grant the right to guardian to appoint another as long as it is in the best interests of their ward.

However, if a trustee has long taken care of a trust, has been doing so legally and successfully, and is as stable in mind as they always have been, there is very little chance that the guardian can remove them.  All a guardian needs to do is plead their case for a new trustee in court, but the court will only allow a trustee to be removed by a guardian if the trustee is somehow detrimental to the ward or their estate.

If you are a guardian of the estate and suspect wrongdoing to your ward’s trust on behalf of a trustee, contact us today. As a guardian, it may not seem like your place to step in, but you were appointed to care for your ward and their interests. Making sure a trust is well run is definitely well within their interests.

Can Probate Possibly Be Avoided? Four Ways You Can Do It

Is it possible to avoid the entire probate process? Probate is the process of having your Will recognized by the Court and having your wishes fulfilled following your death.  It is the process where your debts are paid and your remaining assets are transferred to the people you have named in your Will.

Create a Trust

One way to avoid probate is by creating a revocable living trust. Once you transfer your assets to the trust and they aren’t under your name anymore, the assets won’t have to go through probate.  Creating a trust to avoid probate can be very problematic if you do not get all of your assets transferred into the trust prior to your death.  In that case, your estate may still have to go through probate even though you have the trust.

Designate Beneficiaries

Another way is to designate beneficiaries on your accounts. Listing beneficiaries isn’t limited to life insurance and retirement plans. You can list beneficiaries on your financial accounts, such as your bank and investment accounts, so that the money goes straight to the beneficiary after death, without going through probate. This is also known as pay on death accounts. In some states, you can do this on real estate and vehicle registrations as well.

Join Tenancy Arrangements

If you co-own real estate with your spouse or someone else, you can execute a joint tenancy deed that results in the property transferring automatically upon death to the surviving spouse or co-owner.  When you do this, the property transfers directly and avoids probate.

Give It Away

Of course, you can always just give your property as a gift before you pass away. This obviously is not an option for everything, and you may have to pay taxes on your gifts.  However, many estate plans can include gifts during life to reduce someone’s estate prior to death.

For more help with estate planning, contact us today!

Where to Fit Funeral Plans into an Estate Plan?

When we start planning our estate, typically we tend to focus on where all the stuff goes. What happens to the house? How about the retirement accounts? Who should we make executor of the estate? However, what about want happens to you? Many people have a fairly good idea of what they want their funeral to be like, but the problem is that people don’t know where to put it in the estate plan.

Do you put it in the Will? No, by the time the Will is present to the Court for probate, your funeral service will already, and your remains will have been disposed.  To ensure that your remains are disposed of the way that you intend, you should consider a couple of options.  First, you should have a discussion with your closest family members to make sure that they understand your intentions.  Second, you should consider a prepaid funeral, where you select and pay for the funeral and burial options while you are alive.   Third, you can execute a document designating a person to have control of the disposition of your remains upon your death.  This document is valuable when you think that multiple people might disagree about the arrangements for your funeral and burial.

If you are getting ready to plan out your estate as well as your funeral, contact us today. The Ford + Bergner is dedicated to making sure that estate planning isn’t a huge headache.

The Secrets to a Successful Will

As long as the assets get distributed “naturally”, then technically every Will can be considered a successful Will.  A Will makes a natural disposition if it benefits your spouse first and then your children equally, or some similar disposition.  A truly successful Will can be measured as a Will that, once read, is carried out without difficulty, dispute, or an overly long probate process.  If you are looking to draft a Will that prevents disputes among your loved ones after you are gone, then consider implementing the following measures during the drafting process.

  • Explain the Decisions – You may think that a Will is just a place to put your wishes down, and in essence that is true, but there is plenty of room for explanation as well. In fact, including an explanation along with each decision will dramatically cut down on Will disputes because your reasoning is right there on legally binding paper.
  • Choose the Right Executor – Even if you wrote a rock-solid Will, if you choose the wrong person to serve as your executor to carry out the terms of your Will, then all your work can quickly be unraveled. The person you assign to carry out your Will is also responsible for caring for your estate as well, and it can be a lot of work. If you believe that one person may crumble under the responsibility or act unfairly to one or more family members, then you might want to consider assigning multiple people to the role.
  • Make Sure the Will Complies with the Correct Formalities – Your last testament can be a funny thing.  Whether your Will is handwritten or typed, specific requirements exist to make the Will valid.  You must ensure that you comply with these conditions to ensure that your wishes are carried out correctly.

There is still a lot more to consider when drafting a will, so if you are in Texas and need a skilled estate planning attorney to advise you, contact us today.

Moving to a New State: Do You Need a New Will?

If you have just moved to Texas or are moving to another state, your Will is probably not very high up on your priority list. However, when you eventually get to it, the most common question will linger – is your Will still good in a new state?

In many cases, a Will that is valid in one state is  valid in all states.  However, the validity of a Will is determined by each specific state.  Texas requires most Wills to have 2 witnesses, while some states only one require one witness, and others require 3 witnesses.  Additionally, there are still a few other aspects to consider:

  • Handwritten – Texas recognizes handwritten (also known as holographic) Wills, but that is not the case in all states. Some states may recognize handwritten Wills if they are just signed and dated while others may need to be notarized. You need to familiarize yourself on the rules for your new state if you have a handwritten Will, but it may just be better to consider drafting a non-handwritten one instead.
  • Common Law vs. Community Property – If you are married, moving from a common law state to a community property state can throw a wrench into your estate plan.  In community property states, the assets acquired during the marriage are considered to be owned by both spouses equally, while in common law property states, income earned by one spouse or the other is deemed to be owned by the spouse who earned it.  Moving from a common law property state to a community property state, or vice versa, can affect the property that one spouse or the other might be able to control under his or her Will.

While those are the two most common factors to consider, there are many other small aspects that you want to talk over with your attorney. If you have just moved to Texas and want to discuss the validity of your Will, contact us today.

How Does Guardianship Differ From Power of Attorney

Both guardianship and power of attorney are legal tools that will help someone act in the stead of an incapacitated person. However, for many, they may be confused as to the difference between the two since they essentially play the same role. However, each does have some key differences.

Power of Attorney

What sets the power of attorney apart from a guardian is that they can be chosen by a person to act in their stead if they are incapacitated. The power of attorney is able to take over your financial matters if you are incapacitated, and their power can be as vast or as limited as you choose when you assign them.  The power of attorney can also be revoked as long as you have capacity to understand the implication of revoking the document.

Guardianship

A guardianship differs from power of attorney because a guardian is not chosen by the incapacitated person before the fact, but rather assigned by the court afterwards. As a guardian handles all financial, healthcare, and legal decisions for the incapacitated, it can lead to a profound loss of freedom for their ward. This is why a guardianship is only granted after less restrictive measures, like a power of attorney, are either ineffective or not already in place. This means that if you do not assign a power of attorney, a guardian may be assigned to look after your affairs, but their power can only be restricted by the courts.  Unlike the power of attorney, a guardianship cannot be revoked by the ward, unless the court determines that the ward has regained their capacity to make decisions for themselves.

If you are estate planning or considering a guardianship for your loved one, contact us today. We can help you lobby for guardianship or help put measures into place that in the event you are left incapacitated, the person you choose can take care of you.