Estate Planning: Be Prepared for These Uncomfortable Questions

Estate planning, as you can imagine, is actually a highly personal process. It is kind of like going to the doctor where you need to be ready to disclose some things that you may not bring up in polite conversation. However, rest assured that there is always a reason for all the uncomfortable questions. By knowing what to expect, you can better prepare. So what are some questions that may come up?

Do You Have Any Health Problems?

It may not seem like any of your lawyer’s business, but primarily what they need to know is whether you have a condition that may cause incapacitation in the future, or if you are suffering from some health issue that may result in your death on an accelerated timeline. If you have a disease that could deteriorate your body and mind rapidly, it needs to be planned for.

Is Your Marriage Stable?

Marriages have good years and they have bad years, but is it, for the most part, stable? If there is the possibility of a marriage ending, you may not want your ex-spouse getting everything, and this issue may affect the decisions that you would make in your estate planning.

Do You Have Children Out of Wedlock?

This can be an extremely sensitive subject, but if you have a child that was the product of a different relationship than your current marriage, then they are still considered a legal heir to your estate. Your lawyer will need to consider the best way to advise you on addressing the inheritance issues related to this other child.  Failing to do so could result in your estate plan causing litigation when you are gone.

Do Your Beneficiaries Have Drug, Alcohol, or Gambling Problems?

No one wants to air the dirty laundry of their family, but this does need to be acknowledged. No parent wants their children to squander their inheritance away on habits that will hurt them. By letting your lawyer know, they can set up stipulations that will prevent the child from being able to spend all their inheritance right away or only receive it once certain criteria have been met.

While every client’s situation is unique, there may be additional uncomfortable questions that your lawyer may need to ask. However, if you are beginning the estate planning process, contact us today.  We are happy to explain to you why any of our questions are important, and we will seek to guide you making sound decisions in your estate planning.

Issues That Arise With DIY Estate Planning

There may be some small allure in dividing up your worldly possessions among your loved ones, but for many, the worst part of estate planning is actually doing it. You have to leave the house and go talk to a lawyer for a few hours. Even if your lawyer is a great person, it is still not a very fun way to spend your time. Instead, there are some that may choose a few DIY maneuvers for estate planning.

Some may choose to write a handwritten will, which is actually fine because Texas law recognizes the validity of handwritten wills. However, others may search the internet and end up on websites or various digital software products that promise to set up wills and trusts for them. While some of these products may do just that, often the biggest issue that comes with DIY estate planning products is when it comes to having the documents properly witnessed and executed.

A proper type-written Will requires two independent witnesses.  Without their signatures, the Will does not meet the requirements of Texas law to be valid and will be subject to being challenged by a member of your family. This can be done if one of the beneficiaries isn’t exactly happy with the amount they are getting. By claiming the Will invalid, they may stand to inherit more without it in place.

Furthermore, when you choose to DIY a trust yourself, the issue you run into is the lack of guidance. Trust law and administration is by no means easy to do, and often the complicated nature can lead to errors if done incorrectly. Without guidance in managing and funding the trust properly, that whole trust may be ravaged by penalties or end up distributing very little after your death.

Are you ready to start planning your estate to provide for your family? Contact us today. It may be easier just to try and do it yourself but by spending the time to contact an attorney, you can make sure it is done right the first time.

How a Trust Litigation Attorney Can Help You

Planning for your financial future is extremely important. While it is important to plan for your long-term financial needs, it is also important to make sure you have a plan for after you pass on. While a trust can be used to organize your finances and provide directions, there are situations in which something goes wrong with the trust and execution. There are several situations in which it would be a good idea to hire a trust litigation attorney to help you solve any trust problems that you can have.

 Question Validity of Trust

One situation in which you should hire a trust litigation attorney is if you have a question about the validity of a trust. If you believe that the trust documents were signed while the signer was under influence, coercion, or simply did not have the lack of capacity to make a financial decision, you can call the entire validity of the trust into question. In these situations, your trust litigation attorney could put the entire trust on hold until the situation is figured out.

 Poor Accounting of Trusts

After a trust needs to be executed, a trust administrator is responsible for accounting for all assets and liabilities. The administrator is then responsible for following certain instructions in the trust and then providing the remaining assets to the beneficiaries. If you feel that the administrator did not account for assets and liabilities correctly, you should have a trust litigation attorney hired to force the administrator to provide further detail and support for the accounting.


You should also hire a trust litigation attorney if you feel that there was a misappropriation of funds. In these situations, an attorney will be able to provide you with assistance to ensure that all funds are returned to the proper location.

 If you are a beneficiary of a trust and need legal representation, contact us to learn more about the services that we can provide.

Testamentary Trusts: Why Choose a Trust Within a Will?

When it comes to estate planning, many believe that they have to choose either a trust or a Will to divide their estate between their heirs. However, it is possible to place a trust within a Will. This trust is referred to as a testamentary trust. This trust only goes into effect after death, unlike other trusts that deal with assets over a lifetime. However, is there a benefit to setting up a testamentary trust?

Benefits of a Testamentary Trust

The major benefit of a testamentary trust is that it doesn’t go into effect until after you die. This means you can revoke or edit the trust completely until then. Additionally, it means you don’t have to administer that trust because it has not yet gone into effect.

In many instances, a person may want to create a testamentary trust to provide a benefit for younger children or grandchildren.  Also, the testamentary trust can provide protection from your heirs’ creditors, so the trust may be a good vehicle for protecting assets that you pass to the next generation.  Finally, the testamentary trust can ensure that the members of a blended family are treated equitably after one of the spouses dies.

Setting up a Testamentary Trust

Setting up a testamentary trust is pretty simple.  It is created by including trust provisions in your Will, and then upon your death, your executor, will place the appropriate assets from your estate into the trust.  From that point, the person or banking institution that you have designated as your trustee will manage the assets for the beneficiaries that you designated in your Will.  The creation and funding of the trust upon your death is very simple, and it can provide substantial benefits to your family.

While testamentary trusts are flexible and beneficial to many, they can occasionally be just as complicated as a regular trust. If you are considering a testamentary trust, contact us today to see what we can do to help walk you through the process.

“Too Young For an Estate Plan” and Other Common Misconceptions

When it comes to estate planning, there is certain information that is widely circulated. It makes many believe they know a little bit about estate planning without ever having even looked into it. Unfortunately, much of this information is typically not the truth or at least not the whole truth. This is why it is crucial that if you are starting an estate plan, you talk things out with an estate planning attorney first to get the whole story.

So what are these common myths you might have heard of about estate planning?

  • You’re too young for an estate plan – You’re never too young to think about what happens after you are gone. As they say, life happens and part of that life can occasionally be unexpected death. If you have a family and people you care about, you are never too young to plan for them.
  • The state will take it all without a will – If you die without a Will, the state will ravage your estate, right? This is a very widely spread idea, but it is very much false. There will be some fees that come from your estate, but for the most part, it will be divided by intestacy laws. Essentially, it just means all valid heirs get a share. A Will makes it so you can choose who gets what and how much.
  • Wills avoid probate – Many people don’t know of probate until they have to deal with an estate. However, after you learn, it becomes a somewhat scary term. Unfortunately, while many believe probate can be avoided with a Will, this is not so. A Will provides specific instructions on how the estate is divided, but you still have to go through probate so the court can see it carried out.
  • My family won’t fight over my estate – Oh boy! You’d be wrong. It seems tawdry and unimaginable that a family as close as yours would fight over something as basic as money, but it’s going to happen. If you have multiple children, they will all have their own idea of what is fair, and fights will happen. This is why an estate plan needs to be in place to prevent these fights.

Did learning the truth on these misconceptions change your mind on how you should estate plan? Contact us today to see what we can do to help your family in the event of your passing.

Should Guardianship Be Included in Your Estate Plan?

The whole reason to create a Will and an estate plan is to dictate what happens to your estate after you pass away. However, you should also consider putting plans into place that take care of you before you pass away if you are no longer able to care for yourself or make appropriate decisions for yourself.

Guardianship is Decided by the Court

If you become incapacitated for some reason due to a long-term condition like dementia or alzheimer’s, or if you are suddently rendered incapacitated because of a car wreck or other tragedy, you will need someone to step in and make medical and financial decisions for you because you are not able to make them for yourself.  In most situations, those decisions are made by your agent under a power of attorney.  However, if you do not have a power of attorney, or if a dispute arises among your family members over the actions of the person holding the power of attorney, then the court may be required to step in and appoint a guardian.  In the event that happens, you will probably want to have the opportunity to designate who you would want to serve as your guardian.  Likewise, you may want to designate one or more persons that you do not want to serve as your guardian.  This can be accomplished by executing a Designation of Guardian in the Event of Future Need document.

Courts will often try to judge potential guardians fairly, but they do not know everything that you know about them.  By having designated a potential guardian and/or having excluded a person as a potential guardian, the Court will be guided in making a decision as to who is the most appropriate person to make decisions for you.  This is a great way to avoid fights in a guardianship case.

If you are drawing up and estate plan or fighting for guardianship of a loved one, contact us today to see what Ford + Bergner LLP can do to help you.

What Happens in Probate Court If An Estate is Broke?

After the estate of a deceased loved one goes to probate court, one of the responsibilities of the executor will be to pay off the debts of the estate before dividing the remaining assets among those listed in the Will.  However, in some circumstances, the deceased person dies owing more in debts than they have in assets to pay the debts.

Do Heirs Pay the Deceased Debts?

One of the most frequent questions we get is whether the Deceased person’s heirs are liable for the Decedent’s debts after death.  The short answer:  NO.  Beneficiaries of the estate are never on the hook for the debts of the deceased if their estate cannot cover it. However, this does not extend to spouses or other who may have signed documents agreeing to be liable for the Decedent’s debts while he or she was alive.  For instance, if a sibling of the Decedent co-signed on a car note for the Deceased, then both the Deceased’s estate and the sibling would be liable for the debt.

How Creditors Fight Back

It is natural to assume that any creditors that were owed by your loved one’s estate are not going to pleased that their debts were not satisfied. However, there is typically very little they can do about it. The only way that a creditor can fight back is to file a claim in the probate court seeking to be repaid for their debt.  If some of the creditors do not pursue their debts correctly out of the estate, then their debts may be barred and not paid from the estate.  In that instance, those creditors who properly filed their claims will receive a larger portion of the estate than they might have otherwise.

If this situation arises after the probate process, it is crucial to contact your attorney as soon as possible to prepare a case in order to fight back.