Suppose you find yourself in a position where a loved one has recently passed away, and you likely have many questions going through your mind. Those questions can relate to financial issues, relational issues, family issues, and a host of other topics that are specific to your family. This is not an easy time for you, and believe me when I say that there are people who sympathize and empathize with you during difficult times like these. It is never easy to lose a loved one, especially when the loss comes out of the blue.
Sometimes going to love ones pass away, we can be thrust into a position where we are in charge of making decisions on behalf of our family and the person who has passed away. This would be the case where you were named as the executor of your loved ones' will or if you are in a position to be named the administrator of their estate if your loved one passed away without a will. In either scenario, you will be in a position to make decisions on behalf of your loved ones to ensure that their wishes are followed after their passing and that the laws of the state of Texas are followed in distributing property to beneficiaries and ensuring that creditors' rights are protected.
These are not insignificant responsibilities to have. I hope that your loved one has at least spoken to you about their wishes before their passing and has informed you, for example, that you were named as the executor of their will. Let's take a moment to discuss the benefits of having an open dialogue with your family about your wishes before your passing. I think it is important that we take a moment to discuss how planning for your death or that of a loved one does not have to be as immediate or as out of the blue as we may think. All of us can plan to a certain extent when it comes to life events like death.
Draft a will and talk to your family about it
One of the major issues that I see among people who walk into our office is that many do not have wills. Going into an estate planning attorney's office when you have injected a will is probably the wisest decision you can make. All of us need a will. Any person over the age of 18 needs a will. This is true even if you don't own much property or if you don't have children. The reality is that if you pass away suddenly, then someone will have to attend to matters related to your life after your passing. In that case, it is a lot easier to do so when you have a will than if you were to pass away without a will.
Suppose there are issues regarding creditors or loans that you have taken out, then you almost surely will need to go through the probate process. This process can become expensive and tedious for your parent or next pecking to attend to. So, you can do a lot to smooth that process and shorten it out if you have a will. The beauty of drafting a will even when you are young is that it does not have to be expensive. If you have a relatively simple estate, the time and money that can go into drafting goodwill that is enforceable at the time of her death are pretty minimal.
On the other hand, if you are an older person, you need to have a will. Drafting a will protects everything that you have worked for over your life and ensures that your wishes, and not the state of Texas's wishes, are what matters at the time of your passing. If you die without a will, then the state of Texas will determine how your property is divided up. Your family will have little control over that process, and your property can be held up for months or even years during that process. All the while, your family who could benefit from a property being distributed to them will have to wait to fulfill the obligations of the probate court.
Another key factor to consider is that if you have a close family that you do not want to inherit property from you at your passing, then you need to have a will drafted. I have come into contact with many people who do not want a child or other close relative to inherit property from them for various reasons. In that case, if you die without a will, then your property will be distributed to your children and equal shares in addition to your spouse if you were married. This may go against exactly what you want to see happen, but the reality is that the law doesn't know what you want to see happen unless you put it into writing.
Finally, another consideration as far as drafting a will is concerned is if you have young children. By drafting a will, you can create a trust where your property can be held for the benefit of your minor children. You can create specific terms on how your property will be released to your minor children at certain milestone ages or events. For example, you could mandate that a trustee release certain funds to your children when they turn 16 to purchase a car when they turn 18 to go to college, or even when they turn 25, they would want to buy a house. There is no telling what a probate court would do in a similar situation for you to pass away without a will.
How to speak to the family about your circumstances involving a Will
If you are on the other side of this discussion and have been named as the executor of a loved one, you should be in a position to positively influence that person's behavior as it pertains to matters regarding their estate in their property after they pass away. What are the recommendations that I would make to a person in your position to work with your loved one to talk about the contents of their will with your family as soon as possible? There are many benefits to having an upfront and frank discussion with your family regarding the contents of your loved ones' will and their wishes for the estate after they pass away.
For one, it avoids a situation where you re-create the scene from a bad movie where your loved ones will is being read by an attorney to a roomful of people, including ne'er do well children and a young an attractive spouse. The room then explodes with anger when your loved one announces via their will that they wish all their property to go there you are going to try this new spouse rather than to their children or extended family.
This is an exaggeration, but circumstances like these do occur from time to time in real life. The best thing you can do for your loved one is to work with me to get to a point where they can speak to their family openly and honestly about the will's contents. This means that having a discussion that may at first be difficult for your loved one can prevent misunderstandings and anger after the loved one has passed away. This accomplishes a range of objectives for both you and your loved one.
Beginning with your loved one helps them avoid a situation where their passing has created a great deal of acrimony in stress for their family. I'm sure that your loved one does not want to be remembered as the person who died. I mean to have their legacy be that their passing drove a wedge between family members. Rather, by discussing the content to there will be for their passing your loved one may even be able to positively impact their family where at least avoid a situation where they harmed their families well being after their passing. After all, your family will have enough to be concerned with after your loved one passes away. They do not need to be concerned with arguing over trivial issues like one of them can keep grandad's framed an autographed photograph of his favorite baseball player.
From your perspective, by being able to discuss with your family the contents of the world before your loved ones passing you avoid a circumstance where these loved ones may attempt to claim that the will is invalid or even negate its value by entering into a lawsuit to contest how the property is being divided. Although your loved ones are a state or typically pay the cost of probating their will, that does not mean that your time is not being spent involved in a legal case that could have been avoided had the will been read to everyone before your loved one passes away. By doing so, you can shorten the time that you are responsible for attending to your loved ones a state of will.
Finally, keep in mind that wills can be updated. It would be uncommon for your loved one to have one will from the time they are fairly young to when they pass away. Most of us will draft multiple bills and throw away older versions. After reading the contents of their will, you may find that your loved one has meaningful conversations with other people in your family that result in changes to the will. If behavior changes and relationships evolve, people who were previously left out of the will may be added back to the will. This will be a great benefit and provide Peace of Mind for your entire family. It could be accomplished by reading the will before your loved ones passing.
What makes a will null and void?
Now that we have discussed many of the factors that relate to the creation of a will and the impact of someone's passing on your family in relationships, we can get into what circumstances can render a will no be enjoyed. Using the language of state planning, we're asking what makes a will invalid? One of the biggest things that can lead to a will being declared invalid is surprises in the will that seemed to go against the wishes of your deceased loved one period this is where reading the will allowed two close friends and family before your loved ones passing can eliminate the risk of having that well being challenged in court.
One of the major issues people have when contesting a will is that they believe that their parents are often coerced or fraudulently induced into signing a will by someone out to get their property. Often, there are concerns from an immediate family that distant relatives or even fellow family members have manipulated an aging relative into drafting a will that goes against their actual wishes. Whatever your circumstances are, if you were in a position where you had to defend the wheel of a loved one from a family member trying to challenge it in court, you should be prepared to go through a contested probate process.
Let's walk through the grounds on which your loved ones will be challenged. Probably the most common way to challenge a will is to argue that your loved one could not sign the document. Namely, did your loved one have the full understanding of the property that they owned and its value? If so, do that person also know who is in a position to inherit from them and who should be named in their will to have that property after their passing? Did the person even know what a will was or be in a position to understand what they were signing? A person with Alzheimer's, dementia, or any other kind of mental health issue may have lacked the capacity to understand what they were signing a will can be challenged on these grounds.
Texas also has specific laws regarding the signing of a will. For instance, the will must be signed by your loved one in front of two witnesses who are not people that will inherit anything under the will. They will also need to be notarized. I've seen people run into issues where they have signed a will before giving it to a notary and before their witnesses signing the document. Getting this out of order can render the document unenforceable and invalid. To avoid such a problem, your loved one should not sign the document until the two witnesses are present and a notary is there to sign off on the whole process and apply their stamp or seal.
Next, we could consider that your loved one was influenced to sign the will by force. Elder abuse is a huge problem in our country. Older people can be taken advantage of and influenced by others, especially if those people have a place of trust in the older person's life; if your loved one is pressured into signing a will, then it may feel like to your loved one that they have no choice but to sign the document. Again, your relative may have both could not sign the will and then undoing pressure to sign the document.
Finally, it could be that your loved one was tricked into siding the will. In other words, someone could have gone over the will with your loved one and caused them to believe that what they were signing was a document that reflected their wishes. However, at the last minute, the document could have been changed out for a completely different document that does not reflect their wishes but rather another person's wishes. If it can be proven that your loved one signed a will that did not reflect their wishes and was without their knowledge, then fraud comes into the picture. In this case, the well likely could be challenged because it is invalid.
The bottom line is that proving one of these scenarios can be difficult. The person who is in the best position to testify about any of these scenarios is deceased. However, if you find yourself in a position where their loved one or relative is attempting to challenge you, you need to speak to an experienced estate planning or probate attorney immediately to begin organizing a case.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed estate planning and probate law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of estate planning and probate law in Texas, as well as about how your family circumstances may be impacted by either of these areas of the law.