If you are named as the executor to someone’s will then in all likelihood it will be required for you to have a probate attorney by your side during this stage of the case. The reason for this is that you are not only representing yourself as the executive but also creditors and beneficiaries under the will. For that reason, you should expect that the probate judge will require you to hire an attorney. However, even without this requirement, it is still wise for you to have an attorney. The last thing that you want is to make a mistake and incur additional legal costs down the line and delay the administration of the estate or will. For that reason, it is a good decision for you to move forward and do so with the help of an experienced probate attorney.
However, this is only the case if you are named as the executor I will. Otherwise, the main scenario that most of us will face in our lives when it comes to estate planning in the probate world is in the drafting of a will. More being named as an executor is not especially frequent for most of us the need to have a will is a reality for every adult who is reading this blog post. no matter if you have a great deal of property, no property at all, or are somewhere in between the need to have a will is important how you go about preparing that will is completely up to you. My recommendation would be to Work with an experienced attorney while drafting they will that you should have an attorney.
You may be asking yourself why it is so important for you to have an attorney when it comes to drafting your will. after all: can’t you just tear the old will up if a mistake is made and redrafted? This way you can have as many chances as you’d like to draft a will that complies with the laws of Texas and reflects your wishes for your estate. While it is true that you can update and change your will as many times as it takes the key point to understand is that it is not a given that you will be able to update you will due to the simple fact that none of us know the moment in time that we will pass away. This is sort of a blunt thing to say but it is the truth. You have no idea if he will be able to update your will as you plan.
For that reason, you are in the best position to decide to have your will in good shape from the moment you draft it. Otherwise, you may find yourself unprepared for an end-of-life circumstance. At which time, it won’t be you who suffers the consequences but your family, friends, and potential intended beneficiaries under the will. It is them that will have to incur the cost associated with probating a will and fighting off challenges to the will in case do you have any relatives or others who intend to challenge the will for being invalid.
What are the grounds available in Texas for contesting a will?
The Texas estates code Spells out that any person who is interested in how an estate is administered can contest a will in probate court. Interested persons are usually spouses, creditors, heirs, or person who is a potential claim against the estate. Persons interested in challenging your will would have to make an argument that the will is both invalid and that he or she has the standing to file an intervention into the probate of the will. You need to be aware of the four basic grounds for contesting a will in Texas. Let’s walk through what those four grounds are so that you can be prepared in your circumstances to combat these types of challenges from persons in your life.
How was your will executed?
Wills in Texas can be written by hand or can be typed out on a computer. A handwritten will is also known as a holographic wheel. Handwritten wills must be completely in the handwriting of the person whose will it is. This means that you cannot start writing at the will only to have your brother or wife continue the document. Additionally, you must sign the document in your handwriting.
Otherwise, if you have begun signing I will then complete it in your handwriting but could not finish them this is known as an attested will. These types of documents can be declared valid but must be signed by you or by someone who was told to do so by you. Any portion of the world completed or signed by another person must be done in front of you and at least two witnesses. If the wheel is completely drafted in signed in the handwriting of another person then it is not valid. It does not matter if that other person is your closest friend or even your spouse. In that case, you would need to sign the document in front of two witnesses for this will to be declared valid. However, under no circumstances could it be called a holographic will.
Sometimes we receive questions about what sort of signature is classified as valid when it comes to they will. Understandably, you may not be in a position to sign your entire name legibly at the end of your life. As a result, even if you sign your first name, last name, or Simply put a symbol into the signature line of a will such as a letter X probate courts will declare this to be a valid signature to make a Will. The probate courts in Texas generally favor finding a will to be valid in this regard rather than to assume a will is not valid and therefore harms potential beneficiaries.
One of the terms utilized when it comes to the witnesses of the signing of a will is being a credible witness. In this context, the word credible means that the witness is to your will cannot stand to benefit from they’re serving as a witness. Finally, they would not be able to be beneficiaries under the world that they have witnessed the signing of. However, you may choose to and this is the help of a family member to be a witness to the signing of your will. Bear in mind that if your will is challenged then the identity and history of your witness is maybe a common issue in the case.
Were you of sound mind when you sign the will?
Being of sound mind to draft a will in Texas means that you must have testamentary capacity. There are a set of requirements that they quote will look to when determining testamentary capacity. The first of which is that you understand the business of will drafting while you are drafting the document. If you cannot understand that you were drafting a will and cannot distinguish that activity through another then it is unlikely that it will be found that you have the proper testamentary capacity to complete the drafting of that will. Next, you need to understand the effect of making a will. No one is saying that you need to know every single impact but it is as a result of creating this will but you do need generally speaking to understand what a will does and how it will impact your life.
Next, how much property you own is a requirement for your will to be declared valid. If you were unaware of large chunks of your property at the time of your drafting of the will then I don’t believe that a court would declare you mentally fit to complete the drafting of an important document like that. For the most part, you should understand what property you are including in your will as well as the effect of the world on this property. Sometimes you may even wish to attach an inventory list of your property to the will.
The next important subject for you to consider is who the potential beneficiaries of your will are. For example, if you did not know have several relatives who would stand to be able to inherit from you instead included only a handful of relatives whose identity you did know then it is likely that you could have that will be declared invalid after a challenge possibly from one of these relatives.
This may sound rudimentary but you also need to understand that a will seeks to dispose of your property and assets at the time of your passing. If it can be shown that you did not understand that this is what I will do then it is likely that basically, the law in Texas wants to ensure that you have enough time and understanding to properly consider who should act as the beneficiary under a will and who is even available in your family to act in this way. Otherwise, you may find that someone attempting to challenge well may have a relatively straightforward and clear-cut way to challenge the purple entity of your will.
The last factor is a combination of the first few that I mentioned here. You need to understand why all these factors are related to one another’s in terms of their importance during the will drafting process. Having an attorney to help you draft a will is good evidence of understanding all these issues. For example, let’s suppose that you had a relative who attempted to challenge the validity of your will unground that you did not understand or comprehend a number of the issues that we have talked about so far today. I would argue that having an attorney to help you is a great way to show that you understand please topics in full. Thus, the odds of your Will not being able to be provided would be below. Extensively, the attorney would have been able to educate you about the importance of Each of these factors and how they can be used against you as the creator of a wheel.
How do your age and physical condition factor into this discussion?
You could make the argument that the age and physical condition of a person drafting a will are important factors in and of themselves when considering any of these other issues. Certainly, an older person may be more prone to seeing any of these factors pop into their lives during the will drafting phase of their life. If you are an older person and are reading this blog post should you be worried about your well-being challenge simply because you are an older person in poor health? the short answer to that question is no. Your age and physical condition cannot alone be utilized against you to challenge a will. However, these two factors in combination with any of the other factors could be conceivably used against you if someone intends to challenge your will. bear this in mind when it comes to determining when it is most appropriate to draft or even update your will.
Were you being influenced unduly by another person during the creation of your will?
Let’s say that you pass away and one of your relatives attempts to challenge the validity of your will based on an argument that you were unduly influenced by someone in its creation. Maybe the argument is that a persuasive or aggressive relative convinced you to change some aspect of the will in their favor. Where would this relative be likely to begin their series of arguments?
Without a doubt, the toughest part loves making improving this argument is simply providing evidence that not only did the undue influence exists but that the undue influence Fluence was exerted in an obvious manner. I say obvious because they must be fairly obvious to obtain information in evidence to present to a probate court judge. The subtle influence that is not exerted over a long period may not be enough 2 Your will be declared invalid. Next, the influence must have overcome your ability to rationally think and plan out the execution of your will. If you were influenced either before or after the drafting of the will but not during the drafting of the will then you are unlikely to have your will successfully challenged. The timing of this is extremely important.
finally, it must be shown that you would not have signed the will but for the undue influence. This is one of the toughest aspects as far as proving undue influence is concerned. To be able to argue that a will was only drafted because you were unduly influenced is a heavy burden for someone else to bear. For that reason, I don’t know that many will challenges based on undue influence will be successful. However, you cannot expect that any challenge to you will be overturned simply because it is difficult to do so. Certainly, some circumstances do involve undue influence. You should seriously examine the circumstances that are surrounding the drafting of your will to help determine whether or not someone can make a similar challenge to your will.
Let’s think about a situation where you are children two are adults who reside out of state and you live in Texas. Your wife passed away many years ago and you have a caretaker who looks after you in your home. Without warning, if you were to change your will, and name your caretaker as the sole beneficiary under your will then this may be ground to have your will challenged on validity grounds. Certainly, you are free to dispose of your property however you would like. However, understand that the circumstances surrounding any significant changes to how your property is disposed of will be looked at very closely. As a result, you should think about beforehand how many changes to your will be perceived by relatives and a probate court.
If you think there are problems with your will or anticipate challenges to your well down the line then you should work to iron out any of those issues now before they become a problem for your family after your passing. Speaking with an experienced probate and estate planning attorney can be one of the most important steps to ensuring the viability of a will both now and in the future. This does not mean that you have to meet with an attorney every time he went to update your will. However, if the circumstances of your life indicate that suspicion may arise when it comes to the drafting of the document you may want to consider this step.
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 attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way to learn about the world of probate law as well as about how your family circumstances may be impacted by the filing of a probate case.