Friday, August 11, 2017

Tortious Interference with Inheritance Rights Under Texas Law

Can I file a claim for tortious interference with inheritance rights if someone has reduced or eliminated my inheritance?

Inheritances can be wrought with controversy.  Disputed wills, trusts, or other estate plans may lead to family members losing part or all of their inheritance.  When a person believes that a family member or some other third party has wrongfully caused their inheritance to be reduced or eliminated, he or she may consider filing a claim for tortious interference with inheritance rights.
Read more . . .

Monday, January 23, 2017

A Look At Sam Houston’s Will

Sam Houston is one our state’s most beloved patriarchs. As the inscription on his tomb suggests, he was:

A Brave Soldier. A Fearless Statesman.

A Great Orator—A Pure Patriot.

A Faithful Friend, A Loyal Citizen.

Read more . . .

Monday, December 19, 2016

Preventing Will Contests

So, you have a will, but is it valid?  A will can be contested for a multitude of reasons after it is presented to a probate court.  It is in your best interest to have an attorney draft the will to prevent any ambiguity in the provisions of the document that others could dispute later. 

A will may be targeted on grounds of fraud, mental incapacity, validity, duress, or undue influence.  These objections can draw out the probate process and make it very time consuming and expensive.  More importantly, an attorney can help ensure that your property is put into the right hands, rather than distributed to unfamiliar people or organizations that you did not intend to provide for. 

At the time you executed the will, you must have been mentally competent, or of “sound mind.”  A court will inquire as to whether you had full awareness of what you were doing.   There will also be an inquiry into your understanding and knowledge of the assets in your name.  If, at the moment you executed the will, you were pressured or influenced by another individual to sign the document, it may be invalidated. 

If the document was signed under duress or undue influence, the provisions are likely to be against your intentions or requests.  Moreover, if you are trying to nullify a will on your own behalf, you are likely to need an attorney because it is very difficult and complicated to demonstrate the existence of duress, fraud, or undue influence.   If drafting a new will, counsel can ensure that your document abides by all of the validity requirements, so the will’s provisions can successfully carry out your intentions after your death.

For example, the will creator or “testator,” is usually required to sign the document before several witnesses who are over the age of eighteen, during a certain period of time.  A will or a certain bequest to a person could be deemed void if the beneficiary was also a witness.   In your state, you may be able to execute a “self-proving affidavit,” which may do away with some of the requirements in order to establish a valid will.  The testator should also designate a person to execute the document.  Consult your attorney to ensure that your will comports with your state’s particular laws and is sustainable against any future contests.  


Sunday, August 21, 2016

You Won’t Rest in Peace if Your Will is Drafted Incorrectly

If the language in my will doesn’t match my intentions, will my assets be distributed in an manner that’s against my wishes?

For some people, the idea of making a will is so unsettling that it actually prevents them from having one created. Yet once the reluctant ones get their affairs in order, they often experience great peace of mind knowing they’ve taken care of their loves ones.

Planning your estate forces you to face your own mortality and make some difficult decisions. Depending on your particular family and financial situation, some of these decisions may include how to distribute your assets, who to select as guardians of minor children, and who to name as trustees of trusts created for the benefit of your beneficiaries. And that’s just the tip of the iceberg.

Read more . . .

Monday, June 6, 2016

When is a person unfit to make a will?

Testamentary capacity refers to a person’s ability to understand and execute a will. As a general rule, most people who are over the age of eighteen are thought to be competent to make and sign the will. They must be able to understand that they are signing the will, they must understand the nature of the property being affected by the will, and they must remember and understand who is affected by the will. These are simple burdens to meet. However, there are a number of reasons a person might challenge a will based on testamentary capacity.

If the testator of a will suffers from paranoid delusions, he or she may make changes to a testamentary document based on beliefs that have no basis in reality. If a disinherited heir can show that a testator suffered from such insane delusions when the changes were made, he or she can have the will invalidated. Similarly a person suffering from dementia or Alzheimer’s disease may be declared unfit to make a will. If a person suffers from a mental or physical disability that prevents them from understanding from understanding that a will is an instrument that is meant to direct how assets are to be distributed in the event of his or her death, that person is not capable of executing a valid will.

It is not entirely uncommon that disinherited heirs complain that a caretaker or a new acquaintance brainwashed the testator into changing his or her will. This is not an accusation of incapacity to make the will, but rather a claim of undue influence. If the third party suggested making the changes, if the third party threatened to withhold care if the will was not changed, or if the third party did anything at all to produce a will that would not be the testator’s intent absent that influence, the will may be set aside for undue influence. Regardless of the reason for the challenge, these determinations will only be made after the testator’s death if the will is presented to a court and challenged. For this reason, it is especially important for the testator to be as thorough as possible in making an estate plan and making sure that any changes are made with the assistance of an experienced estate planning attorney.

Monday, April 18, 2016

Executors Fees

An executor's fee is the amount charged by the person who has been appointed as the executor of the probate estate for handling all of the necessary steps in the probate administration. Therefore, if you have been appointed an executor of someone’s estate, you might be entitled to a fee for your services.  This fee could be based upon a variety of factors and some of those factors may be dependent upon state, or even local, law.

General Duties of an Executor

  1. Securing the decedent's home (changing locks, etc.)
  2. Identifying and collecting all bank accounts, investment accounts, stocks, bonds and mutual funds
  3. Having all real estate appraised; having all tangible personal property appraised
  4. Paying all of the decedent’s debts and final expenses
  5. Making sure all income and estate tax returns are prepared, filed and any taxes paid
  6. Collecting all life insurance proceeds and retirement account assets
  7. Accounting for all actions; and making distributions of the estate to the beneficiaries or heirs.

This list is not all-inclusive and depending upon the particular estate more, or less, steps may be needed.

As you can see, there is a lot of work (and legal liability) involved in being the executor of an estate.  Typically the executor would keep track of his or her time and a reasonable hourly rate would be used. Other times, an executor could charge based upon some percent of the value of the estate assets. What an executor may charge, and how an executor can charge, may be governed by state law or even a local court's rules. You also asked whether the deceased can make you agree not to take a fee. The decedent can put in his or her will that the executor should serve without compensation but the named executor is not obligated to take the job. He or she could simply decline to serve. If no one will serve without taking a fee, and if the decedents will states the executor must serve without a fee, a petition could be filed with the court asking them to approve a fee even if the will says otherwise. Notice should be given to all interested parties such as all beneficiaries.

If you have been appointed an executor or have any other probate or estate planning issues, contact us for a consultation today.

Friday, April 1, 2016

Living Wills and DNRs from an Estate Planning Perspective

What is the difference between a living will and a DNR?

For most of us, it is uncomfortable to think about our own death. But, as people are living longer and medical technologies are becoming more advanced, it has become more likely that you will end up in a position where you are alive but unable to tell others what you want or to make decisions for yourself. There are a number of documents that can protect you in this type of situation. Two that are usually confused are the Read more . . .

Tuesday, March 22, 2016

Choosing a Personal Representative

Can an individual residing out of state act as my executor?

A last will and testament, commonly known as a will, is a document that instructs those left behind on the way in which a deceased individual would like his financial and personal matters to be administered. A well thought-out will specifies the distribution of assets and guardianship of minor children, as well as funeral or burial arrangements.

The will also names a personal representative, also referred to as an executor, who is responsible for administering the estate. Choosing an executor requires careful consideration because this individual must be capable and trustworthy in order to handle your affairs. It is also important for the executor to work with your estate planning attorney to ensure your wishes are carried out and to minimize the potential for disputes among loved ones and other beneficiaries.

Indiana Requirements for a Personal Representative

In order to be named as a personal representative of an estate in Indiana, an individual must be at least 18 years of age and cannot be incapacitated. A person who has a physical illness, impairment or infirmity, however, may still be eligible to serve as an executor. Further, an individual convicted of a felony or deemed unsuitable by the court cannot be named as executor.

Naming an Individual outside the State of Indiana

While the state permits an individual residing outside of Indiana to be named as a personal representative, the law imposes additional requirements. In addition to meeting all of the above-mentioned conditions, an out-of-state executor must also post a bond and appoint a "resident agent." The role of the agent is to accept service of process, notices and documents. The law requires the appointment of a resident agent to ensure that personal representative will be bound by the jurisdiction of the probate court.

Pros and Cons of an Out-of-State Personal Representative

An individual who is naming a personal representative should choose the person who is most qualified and, in some cases, the executor will be living in another state. This option should be carefully considered, however. Though you are free to choose who you want, regardless of where he or she lives, this individual may need to travel to attend meeting and hearings, which could lead to delays. Furthermore, relying on the mail for papers and pleadings to be signed and returned can also slow down the probate process.

That being said, these hurdles can be overcome provided that the person named as personal representative is responsible and trustworthy. In the final analysis, it is important to name the right person for the job, one who also will work well with your estate planning attorney.

Monday, November 30, 2015

Five Common Reasons a Will Might Be Invalid

There are several reasons that a will may prove invalid. It is important for testators to be aware of these pitfalls in order to avoid them.

Improper Execution

The requirements vary from state to state, but most states require a valid will to be witnessed by two people not named in the will. Some jurisdictions require the document to be notarized as well. Although these restrictions may be relaxed if the will is holographic (handwritten), it is best to satisfy these requirements to ensure that the testamentary document will be honored by the probate court.

Lack of Testamentary Capacity

Anyone over the age of 18 is presumed to understand what a will is. At the end of life, individuals are often not in the best state of mind. If court finds that an individual is suffering from dementia, is under the influence of drugs or alcohol, or is incapable of understanding the document being executed for some other reason, the court may invalidate the will on the grounds that the individual does  not have testamentary capacity.

Replacement by a Later Will

Whenever an individual writes a new will, it invalidates all wills made previously. This means that a will might be believed to be valid for months until a more recently executed document surfaces. The newest will always takes precedence, controlling how assets should be distributed.

Lack of Required Content

Every will is required to contain certain provisions to carry out its purpose. These provisions, ensure that the testator understands the reason for executing the document.  Although these provisions vary from state to  state, some are common to all jurisdictions. It should be clear that the document is intended to be a will. The document  should demonstrate an individual’s wishes in regard to what should happen to his or her property after death. A proper will should also include a provision to appoint an executor to act as an agent for the estate and enforce the terms of the will. If the document  lacks any of these provisions, the will may be declared invalid. 

Undue influence or fraud

A will that was executed under undue influence, coercion or fraud will be invalidated by a court. If a will has been presented to a testator for a signature as if it were any other document, like a power of attorney or a business contract, the court will find that the will was fraudulently obtained and will not honor it. If an individual providing end of life care with exclusive access to the testator threatens to stop care unless a will is modified, that modification is considered to be the result of undue influence and the court will not accept it.

Saturday, November 7, 2015

Why Choosing an Executor is One of the Most Important Decisions in the Estate Planning Process

Should I appoint all four of my children to serve as co-executors?

When a person dies, it becomes necessary to begin the estate administration process. For those dying with a Last Will and Testament, the terms of this document dictate not only the distribution of the estate, but the person(s) responsible for ensuring that all debts are paid, properties are sold, and beneficiaries are paid. In sum, it’s a big job, not for the faint of heart.

Choosing an executor is an extremely important component of the estate planning process. When it comes time to make this decision, testators often assume that the best course of action is to simply appoint all of their children, who will then work together to get the job done in a timely and efficient manner. In some cases, this may be the best arrangement. More often than not, , however, appointing a group of individuals – particularly the children of the decedent– to handle the administration of the estate leads to conflicts, bickering, and tension.

When choosing an executor, it is often advised to select one person who possesses a responsible nature, is somewhat savvy financially and has the ability to complete the task at hand. When selecting an executor, consider each candidate’s place of residence, as it is often difficult to administer an estate from several states away. Likewise, consider whether the candidate is responsible, punctual and trustworthy – as these are all necessary qualities for the proper administration of an estate.

After selecting an executor, it is usually a good idea to select an alternate person to take over in the event the first executor is unable, unwilling, or predeceases the testator. In any event, all executors should be notified of their role, and should be willing to take on the responsibility from the outset.

Tuesday, October 13, 2015

Wills vs. Trusts 101

What is the difference between a will and a trust? Do I need one, either, both or neither?

First of all, there is a wide range of differences among types of trusts, but here we will focus on revocable living trusts. A revocable living trust is basically a separate entity in which assets are deposited and withdrawn during one's lifetime. The person who contributes assets to the trust is called the “settlor.” The person who receives the benefits of the trust is called the “beneficiary.” The person who maintains the trust is known as the “trustee.” When the assets are in the trust, they are titled in the name of the trustee. A key benefit to any type of trust is that the assets bypass the probate process upon the death of the settlor.

One of the most obvious benefits to a trust is that the “settlor” can keep his or her estate plan private. A will is filed in court upon the death of the testator, and thus becomes a public record. A trust, however, is a private document. Therefore, if privacy is necessary, a trust may be the way to go.

Another less obvious benefit to having a trust is that it makes handling an estate with real property in multiple states much easier. Without a trust, if the decedent owns real property in more than one state, a probate proceeding must be opened in both states to handle the disposition of that property upon the decedent’s death. If a trust is the owner of the property, however, it can pass to the beneficiary without the unnecessary expense of duplicative probate proceedings.

If you are married, and have substantial assets, a trust can lower your estate’s tax bill. Also, if you are in a second or subsequent marriage, and you and your spouse have separate beneficiaries, you will find that avoiding the probate process altogether can be significantly easier. For those who are single, trusts can, among other benefits, help avoid a court-supervised guardianship. If you have minor beneficiaries, trusts can help your children avoid the pitfalls of inheriting wealth at a young age.

To explore the differences between these two common types of estate planning, consult the experienced attorneys at the Winters Law Firm, serving clients throughout Northwest Indiana. Call us at 219-307-4373.

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