Archive for the ‘Wills’ Category

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Will Contests in Texas, Part 1

October 4, 2011

Part 1 – What are the statutory requirements for a Will in Texas.

The first place to start in a Will contest, is, not surprisingly, the Will itself. In Texas, a Will must be in writing in all but the most limited circumstances. If you knew the Decedent to have a Will, examine the one offered for probate. Is it the same document you knew to be the decedent’s Will? If not, is it consistent with what the Decedent relayed to you concerning the disposition of his Estate? Also, determine if the Will is from a familiar source. Most probate attorneys have some form of identification on their Wills. If you find it, ensure that it is a lawyer you knew the Decedent had used in the past or was at least familiar with. Feel free to give the attorney a call and inquire as to her recollection of the execution.

Second, the Will must be signed by the Decedent. If you were familiar with the signature of the Decedent, examine the Will and ensure that the signature matches what you knew to be the Decedent’s signature. However, it is important to note that almost any marking will suffice as a signature, just so long as it was the Decedent’s mark or a mark made by someone, for him, at his direction, and in his presence. If you feel the signature does not match up, consult a handwriting expert and obtain a professional opinion.

Third, the Will must be signed by the maker with the intent to express his wishes for a testamentary disposition of his property. In other words, the intention to make the document a Will. This is called “Testamentary Intent.” A letter may suffice as a Will, but it must clearly express the person’s desire to pass on property after his death. Anything short of that and the document will not be held to have been drafted with the requisite “intent.”

Finally, the drafter must have known and understood the contents of the document he was signing. While this element bleeds over slightly into testamentary capacity issues, the main thing to focus on here is did the drafter know what was in the Will, and did he understand what the document stated. If this was just some document that was drafted elsewhere and then shoved into the person’s face by a manipulative beneficiary, and the Decedent never knew or understood the contents, then it will not qualify as a valid Will.

These are the first questions to be asking yourself when you are concerned with the validity of a Will and contemplating a Will Contest in Texas. Tomorrow we will delve deeper into the requirements for a valid execution of a Texas Will.

Posted in Estate Planning, Litigation, Uncategorized, Will Contest, Wills | Comments Off

Will Contests in Texas – A Four-Part Series

September 30, 2011

Next week I am starting a new four-part series regarding Will Contests in Texas. I get numerous calls every week from potential clients who, after explaining their situation to me, ask if they have any grounds to contest a Will. When it quickly became apparent that the same questions were arising regularly, I decided this subject would make a good blog topic.

My goal is to explain exactly what a Texas Will contest entails, what grounds are available for such a contest, and what issues regularly arise in such proceedings. In the following days, I will lay out what actual grounds are available for a such contests, and hopefully clear up some of the misconceptions out there about what can and cannot be contested when dealing with Texas Wills.

As a primer, there are basically two base groupings that all contests fall into. The first deals with the person writing the Will, and the second deals with the document itself. Therefore, starting Monday, we will look at the following issues surrounding Will Contests:

1. What are the statutory requirements for a valid Will in Texas?

2. What are the statutory requirements for a valid Will execution in Texas?

3. What does “testamentary capacity” mean?

4. What is an “insane delusion” and what constitutes “undue influence” in the drafting of a Will?

So tune in tomorrow as we delve into the statutory requirements for a properly drafted Texas Will.

Posted in Litigation, Probate, Uncategorized, Will Contest, Wills | Comments Off

Census Update from UTHealth

July 11, 2011

The University of Texas Health Science Center at Houston recently published a report from the U.S. Census Bureau stating that every day 7,000 Baby Boomers turn age 65. The census report went on to say that by the year 2030, 71 million Americans will be over the age of 65.

The report also cited a second recent study showing that donors who include a charitable bequest in their estate plans make annual gifts more than double in size than similar donors who fail to utilize such bequests. (Source: The Bequest Study, The Center on Philanthropy at Indiana University; Giving USA 2008)

Given the current state of the economy and the uncertainty that lies ahead for medicaid/medicare and social security given these staggering numbers, its more important than ever to ensure you have a comprehensive estate plan to ensure your financial health well into the future.

Contact us today to discuss all of the ways you can ensure your estate plan is up to date and viable in this ever-evolving economy.

Posted in Estate Planning, Wills | 1 Comment »

This Week in Probate Litigation Appeals

May 5, 2011

Case: In the Estate of Minnie Ola Kremer
Court: Ninth Court of Appeals – Beaumont

In this Will contest from Beaumont, we get one of the rare cases where undue influence was proven in the trial court, and managed to hold up at the Court of Appeals. Pearl Graef probated the 1989 will of her sister, Minnie Ola Kremer. Nearly two years later, Charles Lester Smith, a friend of Minnie’s, filed a motion to set aside the 1989 Will and instead probate a Will allegedly written by Minnie in 2004.

After a trial, the jury found that Minnie lacked testamentary capacity when she executed the 2004 Will and that Smith procured the 2004 Will by exercising undue influence over Minnie. The jury also found that Smith failed to bring his proceeding in good faith and therefore denied him attorney’s fees.

Smith appealed the jury’s findings. In his first issue, he challenged the probate court’s admission of Minnie’s nursing home records. According to Smith, such records were inadmissible because they were not supported by expert testimony. At trial, Smith objected under Rule 403 of the Texas Rules of Evidence that the probative value was outweighed by the prejudicial effect.

The Court of Appeals stated that the trial court has the discretion to admit or exclude evidence. The Court noted that relevant medical records are admissible as records of regularly conducted activity if they have been properly authenticated. However, Smith did not complain of improper authentication. Therefore, the Court concluded that the records were relevant and admissible.

In his second issue, Smith objected to the lack of expert medical testimony to prove that the Decedent lacked testamentary capacity when she signed the 2004 Will. The Court once again shot this down stating that testamentary capacity need not be proved by expert medical testimony and the requisite proof is within the common knowledge of laypersons.

In his third and final issue, Smith contends that there was not sufficient evidence to prove undue influence. Because such cases are rare, this case is valuable to anyone looking to try an undue influence claim as the Court gives a great rundown of the elements needed and what was produced at trial in this matter.

The Court first laid out the factors to consider in such a case including: (1) the nature and type of relationship existing between the testator, the contestants and the party accused of exerting such influence; (2) the opportunities existing for the exertion of the type of influence or deception possessed or employed; (3) the circumstances surrounding the drafting and execution of the testament; (4) the existence of a fraudulent motive; (5) whether there has been an habitual subjection of the testator to the control of another; (6) the state of the testator‟s mind at the time of the execution of the testament; (7) the testator‟s mental or physical incapacity to resist or the susceptibility of the testator‟s mind to the type and extent of the influence exerted; (8) words and acts of the testator; (9) weakness of mind and body of the testator, whether produced by infirmities of age or by disease or otherwise; and (10) whether the testament executed is unnatural in its terms of disposition of property.

In reviewing all of the evidence, the Court concluded that the jury could have concluded that Minnie and Smith were friends who had a creditor-debtor relationship, and in light of the relationship between the parties, the jury could have reasonably concluded that Minnie’s gift was an unnatural disposition of her estate. Additionally, the Court found that the jury could also have reasonably inferred that the circumstances involved in the creation and execution of Minnie’s 2004 Will did not reflect the normal manner under which testators create wills. The jury could have also considered that Smith, not Minnie, paid for the attorney’s services, and that Smith arranged for his friends to serve as witnesses at the will signing ceremony.

Finally, the Court noted that when Minnie executed the 2004 Will, she was ninety years of age. She was in poor health and unable to care for herself. She had only a sixth grade education. The jury could have reasonably concluded that Minnie was susceptible to being unduly influenced during the ceremony in light of her minimal educational background, her poor hearing, and her generally poor state of health around the time she signed the 2004 Will, together with evidence showing that Minnie was not provided with supplemental oxygen during the will ceremony, and that neither before or during the ceremony, did Minnie question why the 2004 Will left the home in which Pearl was living to the Smiths. The jury could reasonably conclude from all of the circumstances that Minnie did not have the strength of mind or body to exercise her own will when she executed the 2004 Will.

In light of the fact that the Court must look at the evidence in the light most favorable to the jury verdict in this matter, the Court stated that there was sufficient evidence to find undue influence.

What does this mean for you? If you feel someone you know has been a victim of undue influence, call us today for a free consultation.

Posted in Litigation, Probate, Will Contest, Wills | Comments Off

Major Change in Recent Estate Tax Legislation

February 15, 2011

As we reported on our Blog in December, Congress enacted new estate tax legislation in late 2010 that makes radical changes to the estate tax law that would have gone into effect on January 1, 2011. Under the old law, each person dying after December 31, 2010, would be entitled to a $1 million estate tax exemption, and any assets that he owned in excess of $1 million would be taxed at a maximum rate of 55%. Under the new legislation, taxpayers dying in 2011 and 2012 will be entitled to a $5 million exemption, and any assets in excess of $5 million would be taxed at a maximum rate of 35%.

It is easy to see that the new legislation contains two major changes. First, the estate tax exemption amount is increased from $1 million to $5 million per person in the United States. Second, the maximum tax rate imposed on the assets someone owns in excess of the exemption amount is reduced from 55% to 35%. These changes, undoubtedly, stand to save families substantial sums when family members die.

While these changes have been discussed widely in the media, another important change was enacted in the 2010 legislation that marks a dramatic shift in estate tax law. The new legislation contains a “portability” provision that allows the estate tax exemption of one spouse to be carried over upon their death and added to the surviving spouse’s exemption. Thereafter when the second spouse dies, he or she can utilize both exemptions to leave their children $10 million instead of $5 million.

For example: Jack died in January 2011 at the age of 85. He and his wife, Jane, owned combined assets valued at $9 million on the date of Jack’s death. Jane’s health is not good. She is not expected to live longer than another 6 months beyond Jack’s death. Her Will leaves all of her assets to the couple’s 3 children.

Under the prior version of the estate tax law, when Jack died leaving all of his assets outright to Jane, they lost Jack’s $5 million exemption. Consequently, upon Jane’s later death, when she left all $9 million to the 3 children, Jane’s estate could utilize her $5 million exemption but would have to pay taxes on the remaining $4 million. With a maximum tax rate of 35%, their children would end up paying over $1 million in taxes.

However, with the new portability provision, when Jack died leaving his assets to Jane, he can also leave her his $5 million exemption. As a result, when Jane later dies, she would be able to combine her $5 million exemption with Jack’s $5 million exemption to leave their children up to $10 million tax-free. Accordingly, upon Jane’s death, the couple’s entire $9 million would pass tax-free to the children.

The portability option is a substantial change in estate tax law, and it stands to provide a significant advantage to many clients. However, the new law contains several pitfalls in this portability provision. It also creates some new problems in putting together estate tax planning options. For more information about these pitfalls and challenges in estate planning, please contact us to discuss them more fully.

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Five Documents to Include in Your New Year’s Resolutions

February 8, 2011

Now that you’ve recovered from the holidays and can focus on starting the New Year off right, it’s time to stop putting off getting those estate planning documents done and make this the year you cross that resolution off your list. The only question is which documents do you need? Well here’s a list of the five most important ones to get you started.

#5 – Designation of Guardian Before the Need Arises
This one is by far the most underutilized document on this list but speaking from experience as a litigation attorney, this is one of the most important documents to have to avoid a fight later on. This document allows you to name your guardian (or perhaps more importantly specifically disqualify someone from serving as your guardian) before the need for such a guardian arises. Few cases can get as emotionally charged as a contested guardianship. This is especially true in situations where there’s a new marriage late in life. To avoid the heartache that comes with such a fight, do your family a favor and specifically name who you want to be your guardian now while there’s no question as to your capacity. Trust me, they will thank you for it later.

#4 – Directive to Physicians
Another example of a choice you can make now that will save your family untold amounts of heartache and gut-wrenching later. Sometimes called a DNR, this document instructs doctors as to what level of life sustaining treatment they are to employ should you find yourself in a persistent vegetative state. Do you want the doctors to do all they can to keep you alive via all available means? Or would you rather not rely on machines to prolong your life artificially? Don’t make your loved ones have to guess at what your wishes are, get this document drafted and leave no doubt as to your choice.

#3 – Statutory Durable Power of Attorney
This is another document that can save you tons of money in the long run. A Statutory Durable Power of Attorney is a document that allows you to name an Agent to act on your behalf should you become incapacitated later. This allows you to avoid the necessity of a guardianship altogether. Your agent has the ability to act on your behalf without needing to be named as your guardian. Now you might be asking yourself why you should go the trouble of designating a guardian as stated in #5 if you are just going to draft a Power of Attorney as well. Well, think of it this way, you become incapacitated and your daughter (who you named as your Agent under a POA) takes over your affairs. Sounds great right? But what happens when your caregiver hands you a piece of paper and convinces you to sign it, and it turns out to be another POA which revokes the one where you named your daughter as your agent and all of the sudden names your unscrupulous caregiver as your agent. In light of the fact that a guardianship overrides a POA, you prevent a cycle of dueling Agents by naming your guardian and giving them the trump card to step in take control for good.

#2 – Medical Power of Attorney
Same document as #3 only this one deals with your medical care instead of your financial dealings.

#1 – Will
The granddaddy of them all, your will is the most important document you can write. The reason being that it’s the one document that speaks for you when you are gone. Too many times people come into my office and told me that their loved one told them in no uncertain terms that they were to receive certain property but that such bequest wasn’t contained in the Will or worse there was no will. Every time I am stuck telling them that while I believe them, it doesn’t matter because without a will the probate code controls the disposition of an estate, and with a will the four corners of the document control. So if you’ve been putting it off, the time is now to get it done. If you happened to have a will already but need to tweak it, perhaps a codicil is all you need. Either way, get it done, 2012 will be here before you know it.

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LegalZoom Faces Class Action Suit

June 25, 2010

Somebody once said that there is no such thing as bad publicity. In a nutshell, bad news is still good publicity, so long as they spell your name correctly. LegalZoom.com is back in the news again, and the company might disagree with the age-old marketing adage right now.

For those not familiar with the self-appointed titan of online lawyering, LegalZoom was founded in part by Robert Shapiro, who you should remember was a leading element of O.J. Simpson’s legal team several years ago. The company provides a litany of online legal services and boasts the ability to serve individuals who might otherwise not be able to afford the expense of an actual attorney. For the most part, the nine-year-old company’s services seem centered on a do-it-yourself approach, specializing in providing what are claimed to be “common” or “routine” documents – things like Wills and documents to form a business.

Now, the company is playing defense. A recent class action lawsuit has accused LegalZoom of unfair and deceptive business practices. The company is accused of leading customers to practice law without a license, assisting in the unauthorized practice of law, and using fraudulent business practices.

The chief plaintiff, Katherine Webster, has sued as the Executor of the Estate of Anthony Ferrantino, and as Trustee of the Anthony J. Ferrantino Living Trust. LegalZoom provided several document forms, including a trust, a will and a power of attorney. Per the company’s model, the customer essentially wrote the documents herself by answering several questions, while a computer created the documents based upon the answers. But the documents were flawed, the plaintiff claims, and those flaws cost the Estate severely.

LegalZoom is not the only company of its kind. It’s just the only one that uses a well-known attorney-founder as its spokesperson, lending security and credibility that some might claim is unjustified. The suit at hand will determine if LegalZoom in fact made misrepresentations, buried disclaimers and omitted relevant facts when courting customers through its advertising. It should be interesting to follow, and should at least serve as a cautionary tale for clients with real and often complex legal issues. Perhaps another adage may teach all of us a valuable lesson – you get what you pay for.

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Top Ten Reasons to Re-do Your Will

June 10, 2010

10. You lost your Will. – While it is not impossible to probate a lost Will in Texas, it is exponentially harder to accomplish than with a valid written will. I won’t go into all the gory details, but unless you can show exactly how it was lost, and exactly what it contained, you are in for a very uphill battle. A copy can get you part of the way, but it will not get you to the finish line. So stop looking for it, we both know you won’t find it, just go get yourself a new one.

9. You don’t like what your Will says. – Sort of obvious I know, but many people fail to realize that simply tearing up a Will and ignoring it will not always ensure that it does not find it’s way to probate court. (See #10 for an example.) Also crossing out provisions and penciling in new ones will not cut it. If you don’t like what the old one says, you must get a new one that revokes all former Wills.

8. You have moved states. – Probate laws vary from state to state so the Will you executed prior to moving to Texas may or may not be valid now that you are in God’s country. Don’t leave it to chance, get in and get a new Will.

7. You have aquired property that you want to leave to someone specific. – Did Christopher Walken recently visit you and hand you your great grandfather’s WWI watch? Again, we’ll skip the details but do you really want to ignore the, um, sacrifice that Mr. Walken made and not do something to ensure that watch goes to your son or grandson when you are gone? Do not trust that simply telling someone will get the job done. The only way to ensure it gets there is to put it in your Will as a specific bequest. Don’t rely on the fact that you will be able to have your own Pulp Fiction moment with junior as you pass down that uncomfortable hunk of metal. If that happens great, but you need a fall back plan in case you check out early. Put it in your Will.

6. You won the lottery. – Or inherited a ton of money. Or got a promotion. Or let’s just say you somehow “acquired” new found wealth (hey we’re not asking any questions). The point is you now need some tax planning and it’s more than likely that the Will you had when you were dirt poor won’t cut it. Why give more to the Government than absolutely necessary? Go get a new Will and make sure your new found wealth is not used to bail out any more billionaires.

5. You got a divorce. – Very few Wills are ambiguous when it comes to who is contemplated by the term “spouse.” If your Will was… well that may be why you got divorced in the first place, but I digress. If instead your Will lists your Ex by name, and you don’t want that person getting everything now that they left you heartbroken and penniless, get in and get a new Will. Don’t wait till you get remarried, you can always add that new spouse on later (or not, again we’re not here to judge you).

4. You have a new baby. – Congrats! If this is your first child then you really want to think about getting a Designation of Guardian drafted along with a Will now that you are parent. If this is not your first child, does your Will mention the other children by name? Does it divide your estate based on a percentage? Does it provide specific bequests to the kids? If so, you need an update. If this is a late-in-life addition to your family, you probably want to think about a trust since now you can’t guarantee you will be around to ensure they are fiscally sound through college. Just try and remember when you were 18, if someone had handed you even a modest share (say 30k) is there any doubt you would have been rolling around in a new Camaro? (Man I wish I still had that car… and that hair.)

3. Your Will is not Self-Proved. – Texas law makes it very, very simple to probate a Will, if you have a properly drafted Will. Just because a Will is valid does not mean it accomplishes everything to simplify probate. Don’t make your loved ones have to drag two people to Court to testify that you were of sound mind when you drafted your Will. Get up off the couch and go get a new Will drafted. And this time go to a real attorney, your brother-in-law does not count. (unless of course he’s a board certified estate planner).

2. Your Will does not provide for independent administration. – Just because your Will says “without bond” does NOT mean that you have appointed your executor to act independent of Court supervision. If your Will does not provide for independent administration your beneficiaries are going to be forced to either jump through hoops to avoid a dependent administration or else be stuck with a much more costly and time consuming dependent administration of your estate. Why would you do that to them when a new Will is just a phone call away? Seriously, give me one good reason. You’re better than that.

1. You don’t have a Will to re-do. God forbid, but if you still don’t have a valid written Will, get yourself to your nearest probate attorney and get it drafted. Do not pass Go, do not collect $200, just do it. NOW!

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Medical Research and the Ultimate Gift

May 5, 2010

In my experience, I have drafted Wills and other estate planning documents in literally all shapes and sizes. Many clients take a very traditional approach, leaving their estates to their surviving spouse, then to children, and so forth. Others take a less traditional approach, making specific gifts for the care of animal companions, philanthropic organizations or churches. On occasion, a client will ask me how to make arrangements for what I consider the “ultimate gift,” the donation of their body to the advancement of science.

While I could probably spend an entire entry waxing on the state of cryonics, Ted Williams and the likelihood of reviving a deceased (and frozen) loved one with future medical technology, I thought a more practical discussion of current medical donation opportunities might be more appropriate. Many Texans are already organ donors, and so the concept of donating an entire body to science is gaining the approval of some clients who desire for even their remains to provide some kind of legacy.

UT Southwestern Medical Center, as well as the Texas A&M Health Science Center, provide some excellent information related to body donation. Both require the completion of some very basic forms which are, of course, revocable. Each institution also outlines the procedure that occurs upon the death of the donee, as well as the requirements that must be met before a body is accepted. While the advice of an estate planning attorney should be sought in connection with the gift, it is not necessarily needed in all cases.

The body must be suitable for scientific or educational research. That is, it cannot be embalmed, and an excessive amount of time after death cannot have passed. Certain conditions, such as trauma or contagious diseases may also prevent acceptance. Generally speaking, the institutions retain the body for two years depending upon their needs. At the conclusion of the institution’s use, the body is cremated. The remains are either returned to the family for a nominal fee, or disposed of appropriately by the institution.

Of the clients that I’ve counseled concerning these matters, I typically tell them to insert the gift into their Will, but to take the steps now to ensure that it can be fulfilled. Practically speaking, it may be weeks or months after death before a Will is admitted or even discovered, negating any chance of fulfilling the donation. Moreover, your loved ones should be aware of your plans as soon as you make them, so that they can take the appropriate steps to see your donation through in a timely manner.

Much of what we plan for involves things and money – the tangible parts of our lives that we realize we cannot take with us. With some foresight and a small amount of planning, you can make a gift that some might argue has a bit nobler intentions – one that will benefit the advancement of medical and scientific learning.

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Five Things to Consider When Planning to Write your Will

March 30, 2010

1. Who Should Receive the Estate?

For some, the passage of property equally to their descendants is the norm. However, each family dynamic is different, and your estate plan should reflect the same standards and ideals that you act on today. Many clients like to include friends, charities and other organizations that they deem important and deserving. In the absence of a Will, your heirs will receive your Estate under a system designed by the legislature. A well-drafted Will is not so rigid, and can be tailored to fit your wishes precisely.

2. Who Will Manage the Estate?

With a well-drafted Will, the person of your choosing can administer your Estate largely free of supervision by a Court. They will gather up the assets of your Estate, pay any proper debts and distribute the remainder to your beneficiaries. When selecting the person to fill this role, it is wise to consider their age, ability to handle professional matters and their relationship to you and the beneficiaries that they will ultimately have to deal with. Their position is one of trust and confidence, and the task of picking the right person is as important as the tasks that they will be asked to carry out.

3. What if the Beneficiaries are Young or Incapacitated?

Estate planning focuses on contingencies – the “what ifs” of life. Some are more likely than others. What if my spouse dies before I do? What if our children are minors when I die? Good planning can provide good answers. Your Will might include provisions that nominate guardians for minor children. It might include trust provisions to ensure that property received by a minor is held and used for their benefit until they reach a specified age. Rarely can a contingency not be planned for when a well-counseled client sits down to execute an estate plan.

4. What Happens to the Non-Probate Assets?

Many of the largest assets in an Estate are not even technically part of the Estate. They pass to designated beneficiaries pursuant to an agreement with a life insurance company or a retirement plan administrator. The best estate plans harmonize these probate and non-probate assets. For example, where one child is provided for significantly by a life insurance policy, the Will may balance things out by favoring the other child a bit more with other assets. Many clients fail to update their beneficiary designations when they sit down to revise their Wills, but the decisions made in regard to these documents are as important as those that you will make when creating your Will.

5. What if the Beneficiaries are Unhappy with my Choices?

Estate disputes happen. In most cases that I have encountered, the seeds of Will Contests and beneficiary fights are sown long before the testator even dies. Clients know their families better than a lawyer, and some frank and open family discussions may avert situations like this. But well-drafted Wills typically go a step further to include provisions that discourage fighting among beneficiaries, just in case. Your estate plan should please you, and it should be executed in a manner that best protects the decisions that you have made concerning your legacy.

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