Have You Updated Your Will Lately?

No one ever likes to think about his or her death and what it will do to the family. As devastating as the topic is, you still need to consider everything that could  happen whenever that time comes. When you think about everything that may occur, you should consider putting a will together. You will want the right people in charge of your personal belongings, finances, and other assets when that time does come.

When you update your will on a regular basis, you are ensuring yourself and your family that everything will be accounted for. All of your wishes will also be carried out when your family knows you have a will. When you have your will prepared by a professional, this ensures that your family members will be protected from having any burdens or difficulties when it comes to your finances.

Here are some things to consider when you are preparing to draft a will or update it regularly:

Consult With An Attorney 

  • It can certainly be overwhelming and challenging when you are considering writing a will. When things are a bit overwhelming people tend to put those things on hold and say they will wait until a later time. However, creating will should not be put on hold. In this case, it will be better for you to team up with an attorney. An attorney can be by your side through the entire process, and he or she will make sure every part of your will is accurate and complete.

Make Sure Everything Is Accurate And Updated

  • Make sure you have listed any valuables and assets that you plan to leave behind. Throughout the years, if you acquire additional assets, make sure you remember to update that list. You should also make sure you have a good idea of what those valuables are worth. Whenever you buy additional property, acquire additional finances, or buy insurance coverage, continue to update the list as necessary.

Whenever there is a significant change in your life, you should make changes to your will.  An attorney can provide you with the resources and tools you need in order to have a will that will make things easier on your family. Contact us when you need assistance or advice.

Seeing to the needs of your pets: Including pets in trust and wills

Given the bond that forms between many people and their pets, a part of estate planning that’s important not to overlook is what would become of your pet if you were to pass away or become too incapacitated to care for it.

In accordance with Texas law, what provisions could you make for your pet? Can you include them in a trust or will?

Bequeathing them to someone else

In your will, you can specify a beneficiary who would take ownership of your pet upon your death. Once that person becomes a legal owner, he or she can keep your pet or perhaps sell it if they wish to. While writing up your will, you can have a discussion with potential beneficiaries about who might want to obtain ownership of your pet.

If you don’t want your pet to be sold, you should try to select a beneficiary who would keep it and take good care of it; you can also name alternate beneficiaries/caretakers. Furthermore, you could also bequeath your pet, along with some money, to an organization that takes care of them.

Pet trusts

Another possibility is to specifically set up provisions for your pet as part of a trust. Texas law allows you to designate resources to your pet in a trust and specific terms for how they should be cared for (however, you can’t include provisions for any children your pet may have after your death; the animals must be alive when you are). In overseeing the trust, your trustee will ensure that the money set aside for your pet is spent on its care and that it’s being looked after by the caretaker you’ve designated in the event of your incapacitation or death.

Once your pet has passed away, anything remaining from the funds you set aside for its care can then go to human beneficiaries you’ve specifically named (if you name no one, it would go to anyone who is your heir by law). It’s important, when setting aside funds for your pet’s care, that you don’t opt for an excessive amount of money.

The amount must be reasonable and based on what your pet needs. If you set aside too much, your decision is more likely to be challenged in court by beneficiaries who would want the funds in human hands, for human use.

If you want to further discuss how to fit your pet into your estate planning, and if you have any other questions on matters of estate law, contact us. We will work with you to make sure that all details are accounted for in your estate plan, both for your human beneficiaries and for any pets whose needs you may want to see to when you’re no longer able to care for them.

‘Testator Intent’ In Wills, Estates And Trusts Law

When it comes to wills, estate and trust law, testator estate generally rules the day.

“Testator intent” refers to the desires and goals of the person who wrote the will, trust-creation document or other important legal matter. We have laws meant to ensure a reasonably degree of clarity, of course, but when there is a dispute (as there so often is), courts try hard to understand and honor the testator’s wishes.

What brings this all to mind is a recent story we read about a 98-year-old woman died and left all of her considerable fortune to her window cleaner, rather than the adult nephew who cared for her during her old age.

The woman had previous wills drafted that left her estate to her “favorite nephew,” but by the time she died in 2008, she had changed her estate plan to leave almost everything to the window cleaner.

The nephew has now sued, alleging that his aunt lacked capacity to execute her final will and, if she did have capacity, was subject to “undue influence” from the window cleaner.

This lawsuit has just started, so we have no idea how it will turn out. However, we can anticipate that the court will try its best to figure out what the aunt wanted.

The reason we’re sharing this story with our Houston audience is that it seems to provide a good example of a crucial element of wills, estates and trusts law. If you think you need to further your understanding of this legal realm, please feel free to contact us.

Update: Warhol Portrait Of Fawcett, Contested In Will Dispute, Goes to Ryan O’Neal

In an earlier post, we talked about an estate battle between the University of Texas and actor Ryan O’Neal over an Andy Warhol portrait of the late Farrah Fawcett.

To briefly recap: The University of Texas claimed that the portrait belonged to it, because Fawcett left her entire art collection to the school (her alma mater) in her will. O’Neal, who had a decades-long informal relationship with Fawcett, believed that the painting was his, and so removed it from one of Fawcett’s residences (with the permission of her trustee).

In late December, a Los Angeles-area jury decided that the portrait belonged to O’Neal after all. During the trial, it considered how to construe Fawcett’s articulated last wishes, as well as O’Neal’s argument that the painting had been his all along and was merely stored with Fawcett’s belongings.

The painting has been estimated as being worth between $800,000 and $12 million.

The reason we covered this story is because it is a good example of how someone (in this case, Fawcett) can think that he or she is being crystal clear as he or she outlines his or her final wishes, and yet there can still be lingering ambiguity. If you engage in estate planning (and you certainly ought to), then it is very important you work closely with your attorney to make your desires as explicit as possible.

If you are interested in speaking with a Texas estate planning attorney, please feel free to contact us at any time. We’re here to help.

Why Do I Need Estate Planning?

In our work as estate planning attorneys, we have noticed that many Texas residents are vaguely aware of the concept of estate planning, but are not quite sure what it is or why they need to engage in estate planning themselves.

Thus, we thought we would write a post to elucidate some common aspects of estate planning and explain why they are important.

First, there are wills. A will is a document that directs how your assets, owned solely by you in your name alone and not governed by another mechanism, will be distributed after your death. The contents of a savings account that is yours alone would be a “probate asset” (an asset that a will would control), but a home that you jointly own with your spouse would be a “non-probate asset” that a will wouldn’t govern, because you don’t own it alone.

Having a will is important not only because it specifies how you would like your money distributed, but also because it can distribute other non-money things, like personal possessions, family heirlooms and the like.

Texas, like all other states, does have a default estate plan in place, but there’s no guarantee that it matches your wishes. Thus, it’s better to have a will of your own.

A second feature of a thorough and well-rounded estate plan is a living will. Formally known as a Directive to Physicians, this document specifies what kind of medical treatment you would like to receive in the event that you fall into a terminal or irreversible condition. This is the sort of document that many people were prompted to investigate in the wake of incidents like the Terri Schiavo case. We know that it is not pleasant to think about becoming unable to express your wishes yourself, but it is important to have this possibility addressed.

If you have children, you should also look into the possibility of naming a guardian for them in the event that you die before they have reached the age of maturity. Generally speaking, guardianships appoint someone to make decisions and look after vulnerable people.

These are just three elements of a comprehensive estate plan. At Ford + Bergner, we believe that every estate plan should be carefully customized to the individual it is being prepared for. For more information, we invite you to contact us.

Should I Include a “No Contest’ Clause in My Will?

Many people worry about disgruntled relatives challenging their will after their death. As a method of discouraging this behavior and preventing unnecessary probate litigation, testators sometimes include a “no contest” clause in their will. What is this clause and is it effective?

What is a “No Contest” Clause?

The idea of a no contest clause has been around for hundreds of years. Basically, its inclusion means that if a beneficiary challenges the will, he or she will lose their inheritance. However, for many years courts have narrowly enforced this clause. Judges have been reluctant to strip beneficiaries of their inheritance if they contested a will.  To clarify enforcement, in 2009 Texas Legislature passed law that makes no contest unenforceable if the beneficiary contested the will in good faith and with just cause.

Is It Worth Inclusion?

The answer to that question is maybe. Some states have completely invalidated the no contest clause because they do not find them to be effective. Here are two examples where a no contest clause may not work out as the testator planned. First, Texas law says that a testator must have testamentary capacity or a sound mind to create his or her will. The one contesting the will can argue there is no way the testator could have been in sound mind if they left him or her out. It seems simplistic, but it is usually a good enough argument to start a lengthy litigation process.

A second scenario that can create unexpected legal disputes among surviving relatives can occur when the testator clearly explains why a certain relative is not getting a bigger piece of the inheritance. For example, a testator may include that the relative is a known drug addict. The disgruntled relative can use this accusation to claim the testator was not in his or her right mind. Secondly, the alleged drug addict could bring a slander or libel suit against the testator’s estate. Even if it seems a court is unlikely to side with the heir contesting the will, the situation can still lengthen the litigation process and cause valid beneficiaries to pay legal fees.

In theory no contest clauses should work. However, the law is vague about what constitutes valid cause for challenging a will. Therefore, it’s important that testators seek experienced legal counsel to protect their estate. Contact us for a free consultation.

Undue Influence on Wills

Following the death of a testator, wills may be contested for many reasons.  There may be a lack of clarity in the will, with some of the provisions vaguely defined.  The will may not cover all possible scenarios, such as the death of certain beneficiaries.  Furthermore, family members may feel that they’ve been treated unfairly, and in some cases they may suspect undue influence.

Undue influence is a serious matter, though it isn’t easy to prove.  In circumstances of undue influence, the testator is thought to have been excessively pressured, manipulated, or coerced in writing the will.  Typically, the will becomes skewed in favor of a certain person or people, at the expense of other beneficiaries.

What are some potential signs of undue influence?

Unusual behavior from the testator.  A recent example from the news is an heiress who, according to her relatives, abruptly cut off ties with various family members towards the end of her life, and strangely left two wills, written several weeks apart: one leaving her fortune mostly to family members, and the other cutting them out entirely and leaving a large portion of the money to an attorney, an accountant, and a charitable foundation run by both.  Relatives see this odd behavior as a sign of undue influence.

Vulnerability.  In a number of cases, the testator may rely on certain individuals for care; these individuals may use their power over the testator and their heavy involvement in the testator’s day-to-day life to exert undue influence on how the will is written.  The testator may be afraid of them in some way or unusually reluctant to refuse their wishes.  They may also isolate the testator from other people in various ways.

Issues of mental capacity.  Even if the testator isn’t officially mentally incapacitated, they may still be prone to forgetfulness or confusion, particularly if they’re more advanced in years.  These states of mind may be used to the advantage of certain individuals.

Motive.  The individuals thought to exert undue influence usually have some obvious motive and would benefit from changes to the will.

Sometimes cases of undue influence may seem obvious, but in fact it’s difficult to definitively prove in court.  There are many instances when testators choose of their own volition to leave most of their estate to a certain individual; other people, especially family members, may be upset as a result, and latch onto the idea that the testator couldn’t possibly have been acting of his or her free will.  To sort through a case that seems to involve undue influence, you would need the assistance of expert estate lawyers.

If you’re currently embroiled in a dispute involving suspicions of undue influence, contact us to discuss the case.  One piece of advice that we’ll leave you with now is to not wait until after the death of a testator.  If you feel as if a loved one may be facing pressure from someone in regards to the writing of a will, address the matter when they’re still alive.