Archive: June 2020

In so many of life’s everyday interactions, communication is key. Expressing our wants, desires, and concerns is what helps move us from point A to point B. What we tend to forget is that communication related to our passing is just as important. Even though we may be gone, there is a way to continue to communicate our wants and needs after our death – it is called a will. A will is a key piece of communication that directs our final wishes and provides for the loved ones that we leave behind.

At Staubus, Blankenship, Legere and Walker PLLC, our Dallas will planning lawyers understand that each client has individual needs and goals. We work with you to customize your will and tailor it to meet your and your family’s needs. We know it is difficult to face a future without yourself in it, but our compassionate team of attorneys is prepared to help you ensure that your family will be taken care of, and your assets won’t be frozen in limbo. Ready to talk about your estate plan? Contact our office at (214) 833-0100.

What Is a Will?

A will is simply a legal document that lays out your final wishes in regard to the distribution of your property, assets, and the care of minor children when you pass away. Unfortunately, many people mistakenly believe that a will is only for the very wealthy or those with complicated assets to divide.

A will is a legal document that can be as simple or as complicated as you make it. Everyone should have a will in order to clearly lay out their final wishes. Not only does it reduce confusion over who gets what, but it can also help your surviving family member gain access to your assets in a timely manner.

It is especially important to have a will if you have children. The failure to prepare a will may leave your children in a state of limbo, and it means that decisions about your estate will be left to the hands of judges or state officials, instead of the ones you love. Having a will means that you can rest assured that your affairs will be in order, and you’ve done everything possible to make your wishes known.

What a Will Can Do

A will provides direction for the distribution of certain property and assets at the time of your death. Again, wills can be as simple or as complex as you make them. A will can achieve a wide range of family planning goals, distribution outlines, and even some tax objectives. In addition to managing the distribution of your property and assets, a will can also do the following:

• Guardianship for Children: In a will, you are able to designate a guardian of your choosing to care for your surviving minor children. This helps to reduce the involvement of judges or state officials when it comes to determining where a child should be placed.
• You Can Choose Your Beneficiaries: A will can allow you to choose who receives your assets. For example, if you were to die without a will, state laws would typically not include friends, stepchildren, or godchildren as beneficiaries of your estate. By using a will, you are allowed to dictate who benefits from your passing, be it stepchildren, friends, or your favorite charities.
• You Can Designate an Executor: This person can be a personal representative of your estate.
• It Can Back-up a Living Trust: A will can be an excellent way to back up any type of living trust that you may have already established.

What a Will Can’t Provide For

While a will can dictate the majority of your wishes regarding property and asset distribution, it cannot dictate everything. In general, it is important to note that wills are typically not found or read until well after your death. That means a will is not the ideal place to layout instructions for your final arrangements and funeral instructions. Those instructions are better spelled out in a separate document and left with an executor or trusted family member.

There are also certain conditions that a will just can’t reasonably accommodate. Adding certain complicated provisions to a will can result in legal challenges that tie up the distribution of assets in court for months, sometimes even years. Here are instances where a will may not be able to accomplish certain goals:

• Jointly Held Property: A will cannot transfer property that you hold jointly with someone else. This is also true for other assets that you own with rights of survivorship that pass automatically to the surviving owner.
• Life Insurance Money: A will cannot dictate who gets your life insurance money. That money will pass to the beneficiary named in the policy.
• IRA, 401(k), or Other Pension or Retirement Plan: The same holds true for IRAs and similar plans. A will cannot specify who this money passes to. It can only be distributed to the named beneficiary on the plan.
• Property in a Living Trust: A will can be a wonderful back-up to a living trust, but you cannot establish a trust and then dole it out to someone else by stipulating the change in your will.
• Putting Conditions on Gifts: Many times, people want to see their assets go to family members contingent on some expected behavior. For example, you may want to leave money to your son, but only so that he can pay for college. Making gifts conditional to behavior can be difficult to enforce and may open the document up to challenges. If you want to leave a gift contingent on a certain action, it may be better to discuss setting up a trust in addition to your will.
• Leave Money or Assets to Cherished Pets: We’ve all heard the stories of eccentric millionaires who leave their vast fortune to their beloved pet Fluffy. Unfortunately, pets aren’t allowed to own property. So, in essence, you are really just leaving your final wishes open to legal challenges from disgruntled family members. You can leave your pet to a trusted friend or family member and provide them with money or assets to provide for that pet. You can also consider donating to your favorite pet-related charity.

Frequently Asked Questions

We’ve provided answers to some of the questions we frequently receive about wills and estate planning. Don’t hesitate to set up a consultation with our attorneys to discuss your specific questions and needs.

What is the difference between a will and a trust?

Wills and trusts are two different types of estate plans, both with their own sets of benefits and drawbacks. Generally, a will is intended to include all of your instructions, but it must go through probate following your death, which will incur additional fees and take time to process – weeks, months, or even years in some cases. A living trust may be more expensive to create initially, but you can avoid probate. There are also tax implications for whichever route you choose. Consulting an experienced estate attorney and laying out your ultimate goals and needs is the best way to determine which option is right for you.

When do I need to create a will?

That depends on where you are in life and the status of your personal finances. A will is not a document that should be crafted immediately before passing. It is a document that should be carefully crafted with proper understanding and perspective. Many people begin to consider drafting a will in the following situations: when they get married, have a baby, or accumulate a number of assets or property.

Can I change a will?

Yes. It is possible to make changes to a will when life events make it necessary, or if there has been a significant change in your personal situation. It is important to remember that the only version of your will that will matter after your passing is the most current and legally valid copy in existence at the time of your death.

Are there things I can’t include in a will?

There are certain assets that a will cannot govern – non-probate property, for example. There are some forms of real estate and other assets that will pass to the surviving owner and cannot be distributed through a will. Also, an IRA or insurance policy will be passed to the named beneficiary, regardless of what you stipulate in a will.

Do I really need to hire an attorney to create a will?

You do not technically need an attorney to create a will. Should you hire an attorney to layout your will? Absolutely, yes. To begin with, in order for a will to be legally enforceable, it must be created and executed in accordance with state laws. Trying to do it on your own can be confusing and difficult, and you risk challenges to the document after you pass away. Keep in mind that the more assets, property, or valuables you have, the more complicated it can be to create an estate plan. You want to ensure that everything is legal, and everyone is accounted for when creating a will. An experienced estate attorney is the best resource you have for making that happen.

Why Choose Staubus, Blankenship, Legere and Walker PLLC to Set Up My Will?

The attorneys at Staubus, Blankenship, Legere and Walker PLLC are dedicated solely to helping clients navigate their way through estate planning and probate. When it comes time to sit down and think about drafting a will, we can discuss your wants, needs, and goals, and we can craft a plan that integrates all aspects of your assets, property, tax concerns, business planning, and family welfare.

Trust the legal team with over 100 years of combined experience to look out for you and your family’s financial future. If you need help drafting a will, contact Staubus, Blankenship, Legere and Walker PLLC today at (214) 833-0100. Use Google Maps to find our office and explore testimonials from past clients. Let’s set up a consultation to talk about your needs and how we can help.

Staubus, Blankenship, Legere and Walker PLLC represents parties in disputes involving powers of attorney, including obtaining accountings and financial disclosure by agents acting under a power of attorney, and litigation over the financial use and abuse of powers of attorney.

We also pursue lawsuits to determine the validity of powers of attorney when questions arise regarding the mental capacity of or undue influence over the party granting the power, including the pursuit of guardianship to judicially terminate the power of attorney in question.

The firm also defends agents acting under a durable power of attorney in disputes involving financial accounting and disclosure issues, as well as issues involving the agent’s right to make medical treatment decisions and living arrangements for a now incapacitated principal pursuant to a medical power of attorney. This defense can include defending against a proposed guardianship over the person who granted the power of attorney on the basis that no guardianship is necessary due to the existence of valid powers of attorney. Find our law firm on Google Maps and browse reviews from satisfied clients.

To learn more or to set up a consultation with our Dallas power of attorney dispute law firm, contact us at (214) 833-0100 today.

Staubus, Blankenship, Legere and Walker PLLC enforces trust beneficiaries’ rights to force full accountings of all trust transactions, income, expenditures, sales, and investments, as well as the right to review the actual books and records of the trust.

We actively pursue actions to remove trustees for conflicts of interest or other breaches, as well as suits for damages against trustees for claims of fraud, misappropriation, and self-dealing, as well as breaches of fiduciary duty, including failure to make distributions to beneficiaries, failure to invest the assets of the trust properly, and failure to account for assets.

We file trust lawsuits to set aside invalid trusts where it appears that the person executing the trust lacked the necessary mental capacity or where the trust appears to have been executed as the result of fraud, duress, or undue influence.

We also pursue suits to modify trusts for our clients’ benefit, such as modifications to increase trust distributions or actions to terminate a trust early to permit earlier distributions.

If you are the beneficiary of a trust and would like to learn more about how the trust litigation attorneys at Staubus, Blankenship, Legere and Walker PLLC can help you, contact us at (214) 833-0100 or reach out to us online. Get step-by-step directions to our law firm and see why clients trust us.

When navigating decisions regarding their duties in the complex minefield of the Texas Trust Code, Texas case law, and the language of the trust itself, Staubus, Blankenship, Legere and Walker PLLC has been sought after to provide risk management advice to large corporate trustees as well as individual trustees, such as surviving spouses and next of kin.

Our trust litigation team vigorously defends trustees against lawsuits alleging breaches of fiduciary duty and violations of the terms of the trust, as well as demands for accountings, suits for removal of the trustee, miscellaneous lawsuits involving the trust, suits by creditors of the trust, and suits relating to family limited partnerships, closely-held corporations or other limited liability companies in which the trust owns an interest.

When a trustee faces a controversial decision, we can obtain court orders declaring what action the trustee should take to avoid risk. We work to obtain releases from the beneficiaries. If a beneficiary does not sign a release, we often prepare a trust accounting for the court’s approval and a court-ordered release from liability.

To learn more, contact the Dallas trustee attorneys of Staubus, Blankenship, Legere and Walker PLLC at (214) 833-0100. If you’re planning a visit, use Google Maps to find our law firm and read client reviews.

Staubus, Blankenship, Legere and Walker PLLC has been successful on several occasions in obtaining a judicial modification of the terms of a trust authorizing greater distributions of income and/or principal of the trust, modifications to achieve tax savings, and modifications appointing a new trustee of the trust. The firm has also obtained judicial modification of trust to allow more flexibility or to more clearly define the permissible investments of the trust by the trustee.

We have also successfully termed trusts before the termination date specified in the trust, resulting in an immediate distribution of the trust’s principal to the beneficiaries outright. To speak with our Dallas trust attorneys about the specifics of your situation, contact us online or at (214) 833-0100.

Under Texas law, the law imposes special duties on persons serving as executors, administrators, guardians and trustees, known as “fiduciary duties”. These fiduciary duties include the duty to account for and to fully and accurately disclose the transactions of the estate or trust, the duty of loyalty to the beneficiaries, the duty not to self-deal with the estate or trust assets, the duty to make the estate or trust assets productive, the duty of impartiality between the beneficiaries, and a multitude of other duties.

State law also requires trustees to invest and manage assets as a prudent investor would, to actively review the trust assets and make prudent decisions as to the investments of the trust portfolio, and to appropriately diversify the investments of the trust.

There are a multitude of other statutory duties required of executors, administrators, guardians and trustees, the breach of which creates potential liability for these fiduciaries.

Our litigation team pursues a variety of actions against fiduciaries including:

• suits for removal of executors, administrators, guardians and trustees
• suits to force accountings
• suits for monetary damages
• suits to pay back fiduciary fees

Applicable laws provide for the possibility of recovery of the attorney’s fees incurred in pursuing these breaches of fiduciary duty.

Staubus, Blankenship, Legere and Walker PLLC has substantial experience in vigorously defending executors, administrators, guardians, and trustees from removal actions, in preparing airtight accountings in response to accounting actions, and in suits for damages filed against the fiduciary. We also pursue Declaratory Judgments on behalf of fiduciaries when facing decisions involving risk to the fiduciary in order to cover them with a court order directing what action the fiduciary should take. Applicable Texas law allows the possibility of the fiduciary recovering their attorney’s fees by the fiduciary from the estate, guardianship or trust. Get directions to our law firm and read what our clients have to say.

Trust litigation typically involves conflicts between the beneficiary of a trust (the person who benefits from the trust fund) and the trustee, who has been assigned to manage the trust. Beneficiaries are entitled to many rights and legal remedies, which they can exercise if the trustee fails to distribute and administer assets per the terms of the trust.

At Staubus, Blankenship, Legere and Walker PLLC, we regularly help beneficiaries understand their rights and have represented both beneficiaries and trustees in court. If you are the beneficiary of a trust and believe it is being mismanaged or the trustee has breached their fiduciary duty somehow, contact our office to discuss your situation with a skilled Dallas trust litigation lawyer.

For more information on trust litigation, please refer to this white paper entitled “Trust Code Toolbox for Locking Down the Runaway Trustee.”

What Are My Rights as a Trust Beneficiary?

Although trusts are designed to operate without any court supervision, trust beneficiaries have the right to file suit to enforce the express terms of the trust and enforce the legal duties owed to them by the trustee, referred to as “fiduciary duties.”

A fiduciary duty is a trustee’s legal and ethical commitment to act in the beneficiary’s best interests and manage the trust responsibly. Among these fiduciary duties owed to each beneficiary (including “remainder beneficiaries” who have only a future right to income or principal distributions) are the following:

• Duty of full disclosure
• Duty to account
• Duty to keep and maintain accurate trust records
• Duty of loyalty (including the duty not to self-deal)
• Duty to make the trust property productive
• Duty to reasonably exercise their discretion

Beneficiaries to whom any fiduciary duties have been breached have legal remedies that they can have enforced by a District Court, or in a larger county, by a “Statutory Probate Court” (such as Dallas, Tarrant, Collin, Denton, Harris, Bexar, or Travis Counties).

Some of these court-ordered remedies include the following:

• Compelling the trustee to take action
• Enjoining the trustee from taking action
• Ordering the trustee to pay back the money or to restore the property
• Ordering the trustee to provide a detailed accounting
• Suspending or removing the trustee
• Denying the trustee’s compensation
• Awarding a judgment against the trustee for actual and punitive damages
• Having the Court supervise the trust and oversee all transactions

In addition, beneficiaries can invoke the power of a court to seek an increase in the amount of their distributions from the trust, modify the terms of the trust, or terminate the trust and have the trust assets distributed outright. When a trust owns an interest in a limited partnership or a limited liability company, the trust litigation may involve claims against the general partner or managers of those entities in addition to the trustee.

The fiduciary duties imposed on trustees have been described as one of the highest duties imposed by law. Trust beneficiaries have significant remedies, and the court has extremely wide latitude in enforcing those duties and in awarding attorneys’ fees to such beneficiaries that they incurred in enforcing those rights.

Reasons Why a Beneficiary Might Sue a Trustee

Some valid reasons why a beneficiary might take legal action against a trustee include:

• The trustee misappropriated funds in the trust or sold property for personal financial gain
• The trustee acted in a negligent manner (i.e., they made a risky investment using funds from the trust, which resulted in a poor return and the trust being devalued)
• The trustee used funds or property in the trust for someone else’s benefit rather than for the benefit of the designated beneficiary or beneficiaries.
• The trustee showed favoritism toward one beneficiary over another
• The trustee refused to distribute assets in the trust without a legitimate excuse

Call us if a trustee deliberately abused their position for financial gain or acted questionably. The beneficiary must take immediate steps to enforce their rights and recover any assets or property that was mismanaged or sold.

The prospect of suing a trustee for a breach of fiduciary duty can seem daunting, especially if they are a close relative or loved one. Given the potential fallout, it is not uncommon for beneficiaries to wonder whether taking legal action is worth their while.

However, depending on the circumstances of your case, filing a lawsuit against the trustee might be the best legal remedy available if a trust is being mishandled. If you are unsure whether legal action is appropriate in your situation, we highly recommend you speak with a seasoned trust litigation attorney.

Why Hire a Trust Litigation Attorney?

Trust litigation is a complex area of the law, and to have the best possible chance of securing a positive outcome, you will most likely need the help of a knowledgeable trust litigation attorney, preferably one with extensive trial experience.

Your attorney will help you navigate the legal process, defend your rights, and provide you with insightful legal advice. Because the trustee will likely have their own attorney representing them during legal proceedings, it is crucial to hire your independent counsel, someone with your best interests in mind.

Trust lawsuits tend to be contentious and emotional because they can pit family members against one another. Having an attorney in your corner can help reduce the potential for conflict and make it easier to resolve disputes efficiently.

Contact a Dallas Trust Litigation Attorney Today

Based upon years of litigation experience relating to trusts, Staubus, Blankenship, Legere and Walker PLLC provides advice and representation to individual trustees, corporate trustees, public and private charities and foundations, and representation to beneficiaries on any trust-related disputes, including fiduciary duties and risk management for trustees, suits over the validity of trusts, suits to modify or terminate trusts, and suits over the removal of trustees and for damages relating to breaches of fiduciary duties.

If you are considering setting up a trust, consider the pros and cons, including how you could avoid paying an inheritance tax. Call us at (214) 833-0100 to learn more about our services or contact us online to schedule a consultation. Look up our location on Google Maps and see what our clients have to say in their reviews.

The passing of a loved one is never easy. What happens when the pain of losing someone is amplified by the fact that their will does not include the provisions you expected it to have? What if you suspect that the document does not accurately reflect the final wishes of the person who has just passed on? People may be afraid to challenge the final wishes of the deceased, but there are a number of situations where it is possible and in your best interest to challenge a will.

After the trauma of losing a loved one, it can be hard to imagine having the emotional capacity to legally challenge a will. The experienced legal team at Staubus, Blankenship, Legere and Walker PLLC understands this and offers compassionate service with highly effective and aggressive representation. We know that when it comes to the challenge of contesting a will, the stakes are high.

Our formidable team of seasoned attorneys has substantial courtroom experience in will contests. We have the skills and the deep bench necessary to forcefully and strategically tackle the complexities that come with contesting a will.

If you are considering a legal challenge to a will, contact Staubus, Blankenship, Legere and Walker PLLC at (214) 833-0100 for a consultation. We are the team you can trust to secure your future. If you’re visiting, check Google Maps for directions and read what clients say about us.

What Is a Will?

A will is a legal document that spells out how an individual wants their assets, whether outright or in trust, and who that individual wants to serve as their executor to administer those assets. It is a record of the deceased’s final wishes and how they want those wishes carried out, enabling a person to exercise final control over the things that they accumulated in their lifetime and distribute them to people or causes that were important to them. For many people, it is peace of mind that their loved ones will be taken care of after they are gone.

In Texas, a will must be in writing, signed by the person making the will (called a “Testator”), witnessed by two witnesses at least 14 years of age who sign their names in the Testator’s presence.

Under What Circumstances Can You Contest a Will?

There are a handful of situations where it may be appropriate and a legally viable option to contest a will. In the state of Texas, anyone with a financial stake in the outcome of the estate to be distributed has standing to legally challenge a will. It is then up to that contestant to provide a basis for and prove to the court why the will should not be honored. In general, there are six common situations that an individual may cite as reasons for contesting the validity of a will. These include:

Lack of Testamentary Capacity

In order to be a valid will, the person executing the will must be of sound mind. Texas courts define the term “sound mind” to mean “testamentary capacity”. In order to have testamentary capacity, the person signing the will must have sufficient mental ability to understand that he we is executing a will, understand the general nature and extent of his property, understand who his next kin are and the objects of his bounty, and must have sufficient memory to collect all of these things in his mind long enough to form a reasonable judgment as to what he is signing. The pivotal issue is whether the Testator had testamentary capacity on the date the will was executed. However, evidence of the Testator’s state of mind at other times can be used to prove his state of mind on the date the will was executed. If a will contest is filed prior to the will being admitted to probate, the person offering the will has the burden of proof of establishing that the Testator was of sound mind on that date. If the will has already been admitted to probate at the time that the time the will contest has been filed, the burden of proof as to testamentary capacity is on the contestant.

Evidence of the person’s mental history and diagnosis are important in the will contest, as are the estate planner’s file and the testimony of friends, family and caregivers who spend time around the Testator around the time of the execution of the will.

Undue Influence

A will may also be challenged on the grounds of undue influence. This refers to another individual exercising influence over the testator in order to convince them to execute a will that does not contain the testator’s wishes. Undue influence may occur as a result of manipulation or as a result of blackmail and extortion.

Undue influence has been defined as compelling a Testator to do that which is against his will from fear, the desire for peace, or some feeling which he is unable to resist. It may take many forms, including force, intimidation, duress, excessive importunity, or deception. Undue influence need not be accomplished forcibly and directly, more often being exercised by subtle and devious means, which may occur consistently over a long period of time, or briefly and immediately prior to the execution of the will. The Texas Supreme Court has stated that undue influence may be exercised through the silent power of a strong mind over a weak one. These cases often involve the influencer actively working to alienate the elder from their family, friends, and trusted advisors.

Some of the facts which the court considers in revising claims of undue influence include the weakness of mind and body of the Testator, and their susceptibility to undue influence; whether the will made an unnatural disposition of property, the opportunities which existed for the exertion of undue influence, and whether the person receiving the unnatural gift assisted in the preparation or execution of the will.

Lack of Due Execution

Challenging a will for lack of due execution means that some or all of the steps that are required by law to be taken in the execution of the document were missed. That could mean that the will was not signed by the testator or by another person on behalf of the testator in their direction, or that two credible witnesses who are least 14 years of age failed to sign in the presence of each other and in the presence of the Testator.

Revocation

A will can also be contested on the claim that the testator revoked the will itself prior to death. In order to prove that a will was revoked before death, the individual challenging the will would need to provide evidence, such as a more recent copy of a will, to show that the earlier version had been revoked.

Insane Delusion

A will can be set aside if it was executed as a result of an insane delusion. Regardless of whether a person is normally capable of attending to their business affairs, a person whose mind is warped by the false and unfounded belief of supposed facts that do not exist, and which no rational person would believe, may have their will set aside on the grounds of insane delusion. The terms of the will must be directly influenced by the insane delusion.

Fraud

A will can be set aside if its execution was induced by fraud, and the person who signed the will acted in reliance on such false representation.

Any of these factors alone can result in a challenge to a will. In some circumstances, a combination of factors may be at play. For example, in some cases, there may be both a lack of testamentary capacity as well as undue influence at play.

Unfortunately, it is not uncommon for individuals to take advantage of someone who is ill or has cognition issues, such as dementia, and manipulate them into changing their will or making decisions they would normally not choose to make. These individuals can use this to their own benefit and to the detriment of those the testator wanted to include or take care of.

In some cases, it is also possible to contest a will because of a mistake in execution.

Frequently Asked Questions

We’ve included answers to some of the most frequently asked questions we receive at Staubus, Blankenship, Legere and Walker PLLC. One of our attorneys can answer your specific questions in detail.

Am I allowed to contest a will?

Individuals who have “standing,” meaning they are personally and financially affected by the will, such as an heir or someone mentioned in a previous will, may contest a loved one’s will. You are entitled to submit evidence and call witnesses to support your case. If you have concerns about a will, your best bet is to talk to an experienced estate litigation attorney immediately. They will be able to review your concerns and the circumstances under which the will was created and give you a better idea of the best approach to contesting the document.

How long can it take to contest a will?

The answer depends upon the complexity of the case and how determined each side is to continue battling without negotiating. It could be a matter of months, even years. It all depends on the circumstances of the individual case, the court schedule, and the nature and value of the assets of the estate.

Is there a time limit to contesting a will in Texas?

Yes. In the state of Texas, a will contest needs to be filed within two years. That is two years from the date that the will was admitted to probate, not two years from the death of the individual. That is why it is so important to consult with an attorney if you are considering a legal challenge to a will. A lawyer can review your legal options with you and lay out a strategy for your best course of action. Waiting only means that valuable evidence that may be able to help your case could be lost or destroyed in the interim.

How much will it cost to contest a will?

That depends on the length and complexity of the case. Talking with an experienced probate and litigation attorney can help you get a better idea of what will be involved in taking your particular case to court.

Do I need an attorney to contest a will?

Contesting a will can get complicated quickly, and you will need experienced help navigating the legal system. An estate attorney will be able to give you the legal advice you need and help build a strategic plan to contest the will in question. This is not the territory that you want to venture into alone.

How Can Staubus, Blankenship, Legere and Walker PLLC Help Me Contest a Will?

The skilled and effective team at Staubus, Blankenship, Legere and Walker PLLC are ready to help you take on the task of contesting a will that may be invalid. We understand that this is a confusing and painful time for you and can offer emotional support in addition to aggressive legal representation.

Challenging a will is a complex legal endeavor; don’t trust your case to just anyone. You need the skills and resources that a team with over 100 years of estate and probate experience can provide. If you believe that a will may be invalid, or that you are not being given your dues, reach out to our office at (214) 833-0100 for a consultation. We want to help you secure what you deserve.

Planning for your passing includes much more than just preparing funeral arrangements. When you pass away, there’s the question of what happens to your assets, including real property, owned businesses, financial assets, investments, or anything else that has monetary or even sentimental value. More important than money is ensuring your loved ones are cared for. The goal of any well-crafted estate plan is to avoid ambiguity or conflict when it comes time for your family to handle your assets. This is why carefully creating a thoughtful estate plan is so important.

Creating an estate plan, whether a will or a trust, is best handled with the help of experienced estate planning attorneys. This will help ensure that your will or trust is not only legally valid in the state of Texas but also that your last wishes are carried out correctly. You also want to avoid the worst-case scenario: a contested will that leads to your family and loved ones being involved in long and costly court battles.

The experienced Dallas estate planning attorneys, and legal team here at Staubus, Blankenship, Legere and Walker PLLC are here to help. We will work with you every step of the way to create an estate plan that best articulates your last wishes.

What Is Estate Planning?

Estate planning is the process of creating a plan that describes what happens to your assets after you die or become mentally incapacitated. An estate plan will determine how your assets are divided and distributed. This plan includes designating the specific individuals who will receive your assets – the beneficiaries. If you have children who are minors or other non-adult loved ones whom you have legal guardianship of, you can designate a new legal guardian to care for them after you die.

Estate plans may also contain instructions for resolving financial issues, such as paying off debts and taxes. Your estate plan documents might also designate an executor and dictate the executor’s fee. Also, remember that an estate plan can be used for more than death planning: estate plans may also provide instructions for what happens if you are mentally incapacitated or unable to give consent for medical decisions. Your estate plan should include powers of attorney to designate the persons you wish to make medical decisions for and handle your finances.

An experienced estate planning attorney can help you determine if it will be financially advantageous for you to create a will or trust, depending on the nature of your assets, the size of your estate, and the various tax implications involved.

How to Begin to Create an Estate Plan in Texas

The person who executes the will is called a testator. The name of the person who creates a living trust is called a grantor or settlor. The testator or grantor must be 18 years of age or older, with a sound mind (mentally capable of understanding and making decisions).

A good place to start when creating an estate plan is to take inventory of all your assets. Consider your property, financial holdings, and other valuables. Gather relevant legal documents, such as the deed to your house.

You must also decide on who will be the beneficiaries of your assets. If you choose, you can put conditions on certain assets. For example, you can name someone to whom a certain amount of money will be given for college expenses. Be aware that creating conditions can be complicated, and some conditions may not be legally valid, especially when creating a will, so it is recommended that you consult with an attorney on the specific details of your plan.

There are two types of wills recognized in Texas:

• Attested or formal will: This is a will that is typed, typically written on a computer. Texas law requires that you sign this type of will in the presence of at least two witnesses over the age of 14. This type of will is typically written and prepared with guidance from an attorney.
• A holographic will: This type of will is fully handwritten and signed by the testator. This does not require the presence of witnesses. The State Bar of Texas notes that this type of will leaves more opportunities for it to be contested when compared to a formal or attested will.

One of the most common types of trusts is a living trust. With a living trust, the assets you place in your trust will be distributed to your beneficiaries at the time of your death by the representative, or successor trustee, you chose. With a living trust, the grantor retains the power to change the trust while they’re living.

There are other trust options you may consider for specific circumstances. A skilled attorney will review your assets, your circumstances, and your wishes to help you determine the best options to meet your needs.

Frequently Asked Questions

Discussing your specific circumstances and wishes with an experienced estate planning attorney is always best. However, we’ve answered some of the questions we often receive about estate planning.

What is included in an estate?

Estate planning generally takes into account all of the assets owned by an individual. These may include:

• Real estate property and land
• Cash holdings
• Investment assets, such as stocks, bonds, and trusts
• Vehicles and equipment
• Family heirlooms
• Valuables such as art and collectibles

What happens if I don’t have an estate plan or a will?

If you die without having a will or a living trust, your estate is distributed in accordance with Texas Probate law. Your assets are divided among your children, spouse, or parents if you are unmarried and childless. This is a formulaic process that does not consider the specific needs of your loved ones; it intends to find an heir for your assets. If you want a say in what happens to your estate after you die, you must leave behind an estate plan.

What does it mean for an estate plan to be contested?

A will or a trust is contested when someone challenges the validity of the estate plan by filing a lawsuit. They may argue that the person who created the estate plan was not mentally capable of making informed decisions or that it did not accurately reflect the person’s true wishes. To avoid having your estate plan contested, ensure it fully complies with Texas estate law.

Also, make sure that the estate plan is written concisely, leaving little room for misinterpretation. This is why you should draft your plan with the help of an attorney. An attorney experienced in estate law will ensure that the will or trust is legally compliant and written in a manner that reduces the possibility of it being contested.

How is an estate plan carried out after death?

When you create a will, you will name someone to oversee the distribution of your assets. The person is known as the executor. After your death, the executor files a petition to the Texas Probate Court. This court oversees the execution of wills and handles estate-related issues. This court will conduct a hearing to approve the executor officially. Once approved, the executor is legally authorized to carry out the instructions laid out in the will.

However, before assets can be distributed, the court requires that the executor submit a record of all the assets named in the will. This includes a list of the property owned by the will testator. The court then appraises the assets to determine their value at the time of death. After these steps are complete, your will executor can begin distributing your assets to your beneficiaries.

When the grantor or settlor of a living trust dies, their assets become the trust’s property. A successor trustee will be responsible for gathering and distributing the grantor’s assets in accordance with the terms of the estate planning document.

What are common issues with estate plans?

To be valid, estate plans must be carefully prepared and comply with Texas law. Some potential issues with estate plans include:

• Duplicate documents: It’s not uncommon for people to create an estate plan and then, later on, create another one to update their last wishes or to include newly acquired assets. However, you need to be very careful because if you leave behind multiple versions of your will or trust, it can lead to court challenges and delays in distributing your assets. Maintaining only one document and destroying any older drafts is recommended.
• Choosing the wrong executor or successor trustee: Your executor or successor trustee will be very important in distributing your assets after your death. They are legally responsible for taking care of your financial obligations and distributing your assets to your beneficiaries. Make sure you choose someone you fully trust. Also, verify that they have no financial or legal troubles, as the courts may determine this person is unsuitable.
• Health and mental capacity: Don’t wait until it’s too late: you want to create your estate plan while you are still healthy and do not have mental impairments such as dementia. When you create a will, for example, you must have what is known as testamentary capacity. This means that you are mentally healthy enough to understand the general nature and extent of your property, who your family is, that you are creating a will and the consequences of the will. If the court determines that you lacked testamentary capacity, they can invalidate your will.

Get Started on Your Estate Plan Today

The knowledgeable and compassionate Dallas estate planning attorneys at Staubus, Blankenship, Legere and Walker PLLC will walk you through every step of creating an estate plan tailored to your specific needs, whether it’s a will, a trust, or even a combination of the two, depending on your circumstances. See our reviews to understand why people choose us.

Whether you are just starting on creating a will, or have questions about an existing one, get in touch with us or call at (214) 833-0100 today.

Staubus, Blankenship, Legere and Walker PLLC has years of experience in probating wills and codicils in both contested and uncontested cases. Our experience allows us to provide efficient and effective representation to our clients in carrying out all of the duties as the executor of the estate, resulting in an informed, relatively stress-free probate process.

We file wills for probate in the probate court to obtain a court order recognizing the will as a decedent’s last will, and obtaining the appointment of the executor named in the will. Most wills drawn by competent Texas attorneys provide for the appointment of an independent executor, allowing the estate to be handled without court supervision, saving the client time and money. In some circumstances, this process can be concluded as quickly as two to three weeks.

When there are no debts owed by the estate, Texas law allows a will to be probated as a “muniment of title”, an even shorter process. Learn more about the quality of our legal services through client reviews.

To learn more about how our Dallas will probate attorneys can help you, contact Staubus, Blankenship, Legere and Walker PLLC at (214) 833-0100 or fill in our contact form.