Articles Posted in Wills

Some people in Texas may have avoided executing a will not because they don’t want to think about their ultimate demise, but because they simply don’t think it’s necessary. They may think they do not have enough assets to make a going through the time and expense of creating a will worthwhile. However, what they may not understand is that, whether there is a will or not, when they pass away their estate will go through the probate process, in which the distribution of their estate will be left entirely up to the state.

Through probate, state laws of “intestate succession” will dictate who is to inherit the deceased’s estate. Those heirs not be the ones the deceased would’ve chosen, but without a will or trust, the deceased has no say in the matter. Moreover, even if a person only has modest assets, there are still items that have a great deal of sentimental value, which a person would want to leave to a specific individual. If a person has a will in place, their assets will go down to the people of their choosing.

In addition, in a will one can also assign a person to be the executor of one’s estate. The executor is responsible for settling the estate. This could include paying debts and taxes out of the estate’s assets, and then distributing the remainder of the estate to named heirs in the will. Wills can also name a person or people who would serve as guardians of any minor children, should both parents pass away before the children are grown.

Writing up an official Texas will is something that, understandably, not many people want think about or take the time to do. One probably thought about it before and said, “I’ll get around to it,” “I don’t need to do that right now” or something along those lines. So, does one really need to take the time to draft a will?

Whether or not to have a will is ultimately a personal choice. However, there are some very important reasons to consider taking the time to have an attorney help one prepare an official will. If they die without a will, they may not have much say or control over what happens to personal property and assets.

When one dies without a will, it is referred to as dying “intestate.” That means that the intestacy laws of the State will step in to determine how property should be distributed. One’s property could include bank accounts, investments, real estate and other personal property assets that one owned.

For Texas family members who have concerns following the loss of a loved one, challenging a will is an important process for them to be familiar with. They may wonder though, under what circumstances they can contest a will. Most wills pass through the probate process without issue, but in some circumstances, parties, such as a spouse, may want to challenge a will.

A will contest can be based on a lack of testamentary capacity or undue influence. If there was undue influence on the estate planner when executing the will, such as duress, fraud or forgery, it may be possible to successfully challenge a will. Because there are important requirements for a will to be valid, including that the estate planner has sufficient capacity to execute a will, if those requirements are not met, it may be possible to challenge the will. There are also witness requirements, which can vary by state to be familiar with.

For a will to be valid, the party executing the will must be at least 18-years-old; understand the extent and value of their property; understand who they wish to provide for and who the beneficiaries of the will are; and understand the disposition they are making and what the will means. If a will is successfully challenged, the will may be voided in part or voided in its entirety and a prior will may be used.

The most common mistake people make in estate planning is not having a plan at all. Estate planning is not just for wealthy individuals with lots of assets. Almost everyone has at least some assets, such a bank account, car or home that should be the subject of an estate plan. Estate plans are crucial for resolving legal questions or disputes among family members when someone dies.

Your estate consists of any property that you own at the time of your death, no matter how small. This could include real estate, stocks, bonds, insurance policies, as well as all of your personal property such as jewelry, artwork, furniture, and automobiles. Your estate plan helps determine who will receive this property after your death. Estate plans can also be helpful in minimizing the amount of estate taxes that will need to be paid, providing for funeral expenses, and dictating your medical wishes.

So maybe you’ve taken the first step towards estate planning and you had a will drafted years ago. Another common mistake in estate planning is failing to update your will periodically. There are many changes that occur overtime in business and family dynamics and updating your will is crucial to address these changes and ensure your property is going to those you intended it for. Likewise, it is important to choose the proper person to handle your estate and to make changes to the executor of your estate as needed.

Many residents of Bryan, Texas, and the surrounding area have probably heard lots of different people discussing the great benefit of trusts. For one, they keep an estate out of probate when a person dies. Also, they can, if drafted correctly, help people avoid some tax-related issues.

On the flip side, though, probate is not always such a terrible thing. While it involves some time and expense, when there is no litigation involved, it can be a relatively straightforward process which some might come to appreciate as a good, fair way to make sure that an estate gets handled fairly and according to the will. It need not involve lots of court hearings and similar issues.

Furthermore, just because a trust does not go through a probate court, it does not mean that a trust cannot get challenged in some way in court. If a trust does get challenged, the ensuing litigation could take months or even years and thousands of dollars to resolve, much like a complicated probate matter.

When Bryan, Texas residents and people in the College Station area think about what can go wrong with respect to wills, the usual think of outright will contests in which a family member or other person claims that a will is invalid either because it does not comply with the technical requirements of Texas law or, more substantively, was made by a person who for whatever reason was not legally capable of making a valid will.

What is more often overlooked is that unclear, incomplete or erroneous drafting in the will itself can cause litigation, even if the will itself is perfectly valid. For instance, a will may inadvertently cut out an heir that someone intended to be included or, because of lack of clarity, may not assure a charity or someone else gets the property the deceased person had set aside for him or her.

Ultimately, the responsibility for drafting a clear and complete will lies with the attorney who prepared it. It is advisable, however, for a client to read over the will carefully before signing and make sure it is correct in every detail, even the spelling of people’s names. They should also make sure it makes sense an really expresses their wishes.

Drafting an estate plan is important for everyone to consider; however, additional important considerations related to planning process may arise for couples that are in their second marriage. Some tips to consider for estate planning following a second marriage can be helpful. Though second marriages are increasingly common, the estate planning issues that can arise as a result of a second marriage may not be as common.

It is important to continuously update an estate plan as life changes arise. An estate plan, and a will that is part of it, should changes based on the wishes and intent of an estate planner, which may change following a second marriage or other major life events. It is important for an effective estate plan to remain current. It should take into account changes in the family and may need to address children from a previous marriage or other concerns couples entering a second marriage may have.

Following a second marriage, if the couple comingles finances, it can create risks related to division of those finances, which can be further complicated based on community property laws in states that follow community property laws, such as Texas. Some couples may choose to have a joint account for shared expenses, such as the mortgage and others and manage individual accounts for other expenses. A will can direct how finances should be divided which can protect surviving children.

A will is an important consideration for an estate planner to make and for the family of the estate planner. It can provide peace of mind for both parties. Both estate planners and families, however, may wonder what a will contest is and how it could potential impact them down the line. A will contest generally refers to when a will is being challenged. There are several grounds upon which a will may be challenged and it is helpful to be familiar with them.

Most wills successfully proceed through the probate process. Because a will is viewed as the voice of the estate planner, courts are reluctant to interfere. There are, however, requirements for a will to be valid, and if the requirements are not met, or some other circumstance exists, the will may be contested. It may be possible to challenge a will based on a claim that the estate planner lacked capacity to write or execute the will or that some type of undue influence was asserted or duress was present when the estate planner was writing or executing the will.

Additional circumstances that might lead to a will challenge include if fraud is asserted during the writing or executing the will, the will is lacking provisions required by state law or the will was not executed properly concerning witnesses or signatures. Different parties, including spouses, may wish to challenge a will. If a will is successfully contested, it may be voided entirely or parts of it may be voided. In some circumstances, a prior version of a will or provision may be reinstated.

An effective estate planning does not have to be complex even if the process seems to be challenging for most. There are several basic components of a successful estate plan. Distribution of property at some point is unavoidable and an effective estate plan allows estate planners to determine how their property and assets will be distributed rather than state laws determining how property is distributed without a will or other estate planning tools such as a trust.

In addition to property distribution, an estate plan can help ensure the wishes of the estate planner are fulfilled related to medical treatment and financial matters should the estate planner become incapacitated at some point. Estate planning tools that are part of an effective estate plan includes a will, a medical power of attorney, a statutory durable power of attorney, a health care directive and a Health Insurance Portability and Accountability Act or HIPAA release.

It can also be helpful to name an executor or a guardian for children, which an estate plan can also include. Families may also want to be aware of the probate process and be prepared for that. Effective estate planning, using a few simple estate planning tools, can provide peace of mind for estate planners and their families. There are several basic components an estate plan should include and additional estate planning tools may also be helpful depending on the estate planner’s circumstances.

It is likely residents in Texas and elsewhere has heard of a will, but they may wonder what they do, how to make one, what happens without one and if there are different options for wills. Generally speaking, wills are legally binding documents that outline who will inherit property. They are the best option for the estate planner or party executing a will, to state their wishes for how their property should be divided. Another term for the party executing a will is the testator.

Parties that may inherit items listed in a will commonly include spouses, children, grandchildren, charitable organizations or other friends and family. When the estate planner does not have a will, state laws govern how their property is divided. The property will commonly be distributed to a surviving spouse and children, depending on the laws in the state. Other close relatives may also inherit. The only way for the estate planner to ensure their property is divided how they intend for it to be divided is to have a well and an effective estate plan.

A valid will has a number of important requirements, including the age and condition of the testator, as well as witnesses and additional requirements as well. In Texas, the testator may also have a holographic will or written will, but holographic wills must also meet certain important requirements to be considered valid. A valid will provides important peace of mind for the estate planner and the estate planner’s family so it is helpful to be familiar with all of the requirements of a valid will and ensure they are satisfied.

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