Will Category Archives — Page 3 of 14 — Houston Estate Planning and Elder Law Attorney Blog Published by Houston, Texas Estate Planning and Elder Lawyers

Decedent’s Wife Defends Claim to Texas Property in Long-Standing Estate Dispute

Published on: March 31, 2023 | By David W. Miller

In a recent case before a court of appeals in Texas, the widow of a property owner had to defend her claim to the property that her husband left her in his will. At issue in the case was how to interpret the wills of both the decedent and the decedent’s mother; the decedent’s sons argued the documents made clear that the land belonged to them, while the widow argued that the land was clearly her property. Ultimately, the court of appeals agreed with the decedent’s widow that the property rightfully belonged to her, but the litigation took twelve years from beginning to end.

Facts of the Case

The defendant was the third wife of a man who passed away in 2010. Two years before his death, the man wrote a will that left all of his property to his wife if she survived him. Two of the man’s sons from a previous marriage, however, took issue with this provision after their father died. They claimed that 277 of the acres actually belonged to them – one large piece of property had originally been their grandmother’s, and their grandmother’s estate documents did not make clear whether the land should go to their father’s children or his wife after his death.

The sons initiated this litigation in December 2010. They argued the land qualified as something called a “life estate with a remainder interest”, which means that they were due to inherit the land after their father’s death. The man’s wife, however, argued that the land was actually something called a “fee simple interest”, which means the land should go directly to her as the designee in her husband’s will.

Celebrity Wills Exemplify the Importance of Estate Planning

Published on: January 31, 2023 | By Thomas W. McCulloch

We have long expressed the importance of estate planning for everyone, regardless of status or income. One substantial step in estate planning is having a clear will that avoids dispute or probate issues. For most people, a will turns out to be a relatively straightforward document with little contention. For celebrities who commit certain estate planning mistakes, however, a will—or lack thereof—can become a public news story and topic of gossip. Some intriguing and even hard-to-believe celebrity will stories can show the importance of having a solid estate plan—even for people whose probate drama won’t be in the news.

Larry King’s Secret Will

Television and radio personality Larry King recently passed away in 2021, and his death prompted substantial court drama over his estate. He had a secret handwritten will—also known as a holographic will, which is not a will delivered by hologram!—which was allegedly written in 2019. His family did not find the will until he passed away. The handwritten will was contentious because, at one point, it left 20% of his estate to his children and the rest to his wife, whom he was still married to but estranged from. The two were going through a divorce, but it was not finalized at the time of his death. At some point, he crossed out this 20% figure and left all 100% to his children, disinheriting his wife. This handwritten change makes it difficult to verify on what date the change was made and whether or not King actually made the change himself. King’s estranged wife and his son eventually settled confidentially to avoid the legal battle after challenges and disputes.

Why a Will and a Trust Do Not Make a Complete Estate Plan

Published on: December 27, 2022 | By David W. Miller

Horror stories abound of individuals with plenty of assets passing on without a will, throwing their loved ones into chaos and probate drama. You may have heard of these stories and made sure to establish a secure will. You may have even gone a step further and placed some assets into a trust for your heirs so those assets can avoid probate. Unfortunately, a will and a trust do not make a complete estate plan. Here are 5 other things to consider when evaluating the completeness of your estate plan.

Regularly Update Your Documents

First, even a will and a trust won’t do what you want them to if you do not regularly evaluate and update them. Changes to your financial or personal circumstances should prompt an update. For example, a divorce, marriage, death of a spouse or beneficiary, or a loss of a job or large inheritance could all require changes to your estate plans.

Include Health Care Designations

If you have a will and a trust, you still may wish to put specific documents in place that designate your healthcare wishes in the event you become incapacitated. These documents are called advance directives. A medical power of attorney grants a person of your choosing the right to make your medical decisions for you, while a directive to physicians will outline wishes for your care in advance.

Navigating and Avoiding Will Contests in Texas

Published on: November 7, 2022 | By David W. Miller

Even the most diligent of individuals may not anticipate a contest to their will’s validity when estate planning. Planning for your own potential incompetence or fights about your intention between family members can be upsetting and may even seem far-fetched. Unfortunately, planning for the worst-case scenario can help avoid major headaches in the probate process.

Why Can a Will Be Contested?

Understanding the ways a will can be contested can help in the planning process. Common objections can be, as noted above, that the will maker (or testator) was incompetent or was suffering a delusion. This can encompass a wide variety of circumstances, including dementia and Alzheimer’s disease, stroke, drug or alcohol use, an array of mental disorders such as schizophrenia and depression, and some physical ailments that implicate capacity.

In addition, objectors can claim undue influence or other outside factors like fraud and coercion or duress or mistake. Courts will consider all relevant factors when determining if undue influence is present, including circumstantial evidence that does not directly prove the fraudulent behavior but, taken as part of the whole story, indicate a problem existed.

What Happens if a Beneficiary to a Will Dies

Published on: August 11, 2022 | By David W. Miller

Estate plans are crucial to protecting loved ones and ensuring peace of mind. Despite thorough planning, unexpected events can happen that may change the disposition of a person’s assets. An experienced Texas estate planning attorney can work with individuals to plan for the unexpected.

What is a Beneficiary under Texas Law?

Broadly, a beneficiary is any individual who gains an advantage or profits from something. In the context of a Texas estate plan, beneficiaries refer to the individual who stands to inherit a decedent’s assets. The creator of an estate (Testator) typically designates these individuals through a will or trust.

Comprehensive estate plans often include primary beneficiaries and contingent beneficiaries. Additionally, beneficiaries do not have to be individuals or categories of individuals, such as grandchildren. The law permits testators to include organizations, such as non-profits, as beneficiaries. Primary beneficiaries are the first individual or organizations to inherit assets under the will. In contrast, contingent beneficiaries are those who are “second in line” to the primary beneficiary. Contingent beneficiaries only inherit assets in cases where the primary beneficiary cannot, for instance, if the primary beneficiary predeceases the Testator.

Pour-Over Wills in Texas

Published on: July 30, 2022 | By Thomas W. McCulloch

Under Texas law, individuals (testators) may create a revocable living trust which allows them to use their assets during their lifetime and subsequently securely transfer them to their designated beneficiaries after the testator’s death. These trusts protect the testator if they become mentally incapacitated. With a revocable living trust, the testator’s assets are controlled, owned, and managed by the trust, eliminating the need for a conservatorship proceeding.

Pour-over wills are typically used in conjunction with a revocable living trust. A pour-over will refer to a specific type of will that assists in facilitating the transfer of assets in the event that the testator neglected to transfer all intended assets. Pour-over provisions can integrate the administration of a trust and probate assets.

Benefits of Pour-Over Wills

Carrying out a decedent’s wishes should be of utmost importance, and pour-over wills are another tool to meet this goal. There are many advantages of pour-over wills, including:

Simplicity: These documents allow an executor to efficiently wrap up a decedent’s estate after death.
Totality: A pour-over will address all the assets that a testator could not handle or transfer before death.
Privacy: Pour-over wills are part of a trust and, therefore, do not automatically become public after the testator’s death. They remain more private than will.
A pour-over will is a critical part of estate planning and can create a safety net that brings peace and certainty to an otherwise emotionally daunting process.

Risks of Handwritten (Holographic) Wills

Published on: June 10, 2022 | By David W. Miller

There are two primary types of wills under Texas law: 1) holographic and 2) non-holographic wills. Non-holographic wills are typed, witnesses, and attested wills. In contrast, holographic wills refer to entirely handwritten wills. In Texas, holographic wills are only enforceable when the entire document is written in the testator’s handwriting. While holographic wills might be valid and legally enforceable, more often than not, they result in Texas estate and probate disputes.

A notable example of the dangers of holographic wills involves the popular music group The Monkees. Michael Nesmith, a group member, left a lengthy will leaving his entire estate to his mother’s foundation. However, there were issues with the will’s legality because it was handwritten.

Holographic Will Formation in Texas

Handwritten will appeal to many people who believe that their situations are simple enough that they do not need the assistance of an attorney. However, making a holographic will in Texas requires strict adherence to complex estate laws.

Valid Texas holographic wills require the testator to clearly indicate all items in the will, the recipients of the items, and who should serve as an “independent executor.” In addition, the testator should take steps to ensure that the independent executor knows that the will is valid.

What Does it Mean to Die Intestate in Texas?

Published on: March 29, 2022 | By Thomas W. McCulloch

Life happens, we get it. Therefore, most individuals put off estate planning. However, there are major downsides when this is avoided for too long and they unexpectedly pass away. When someone dies without a will, it is called dying intestate. There are many consequences dying intestate in Texas, including that the decedent does not get to choose who will receive their assets— their funds, property, and items. Because there are benefits to drafting an estate plan and ensuring one does not die intestate, below are examples of the dangers of intestate property and resolution to this issue.

What Problems Can Arise from Not Having an Estate Plan?

When someone dies without a will, they do not have the ability to decide who will receive their possessions. This occurred to famous artist Henry Darger, whose family entered into a long-drawn-out legal battle. When Darger died without a will in place, his landlords—who helped bring notoriety to his art—had ownership of his pieces of art, some of which have been appraised at close to $800,000. Now, long-lost relatives of Darger have filed a lawsuit, arguing they are the rightful beneficiaries of his property. The landlords are arguing that Darger told them that they could keep or discard his possessions.

What Are Essential Estate Planning Documents for Texans?

Published on: October 19, 2021 | By McCulloch & Miller, PLLC

There is a common misconception amongst lower- and middle-class families that estate planning is only for the wealthy. They assume if they do not have many assets—if any—to give to loved ones, there is no point in having a will in place. However, this is not the case. Everyone should draft an estate plan, regardless of their financial or family situation. There are multiple documents that should be included in an estate plan in order to remove a family’s stress in navigating life after a person’s death.

A Last Will and Testament

A last will and testament, or a will, is the most important estate planning document a person can have. A will explains how assets should be handled after a person passes away. The will should also state who should be given the assets—these individuals are called beneficiaries. If all assets are not being left to the same person, the document should clearly state who is receiving what assets and property. Additionally, the will should name an individual to administer the estate; this person is called the executor of the will. If the drafter of the will has any minor children, it is also important to name a guardian for their children. This limits the potential for disputes, where family is fighting over who is the legal guardian of the child.

4 Steps for Writing Your Will in Houston

Published on: October 15, 2021 | By McCulloch & Miller, PLLC

Whether you are young or old, married or unmarried, parenting or childfree, you need a will. A will is a basic courtesy to the loved ones left behind after someone’s passing. Even for people with minimal assets, a will is an appropriate Houston estate planning tool to ensure that any final wishes will be honored and to ease the burden on family and friends of making final arrangements.

Moreover, in Texas, when someone dies without a will, the state decides who gets the deceased individual’s assets, with zero regard to what may be obvious personal preferences. The operation of this law has led to countless unfortunate outcomes, such as estranged spouses getting the entirety of an estate that should have gone to the deceased spouse’s children.

For these reasons, it is important to write and then maintain an updated will from the time one enters adulthood. Fortunately, writing a will need not be a complicated nor burdensome process. For many people, a basic will drafted online or with a lawyer at an affordable rate will suffice.