WILLS AND PROBATE
Establishing a will can be beneficial for people with even modest estates. In fact, people of nearly every income level can benefit from working with a lawyer to establish a basic will. At the Law Offices on Ed L. Laughlin, we help people establish basic wills and other estate planning tools. We also represent individuals in probate and probate litigation. Would you like to speak with someone about establishing wills or probating a will? Then you need attorney Ed Laughlin. Please contact our firm to arrange your free consultation.
Our firm represents heirs and beneficiaries during the process of probating a will. In Texas, when a person dies without a will, the state will decide how property and assets will be divided. If you are the spouse, child, parent, or other family member, dealing with a decedent's assets without a will can be a frustrating process. We work closely with clients to ensure they understand the process and can make informed decisions.
Our firm provides representation when disputes arise during the probate process. Will contests and other disputes can occur in various scenarios. The distribution of property, assets, and debts following a loved one's passing can be an emotional and confusing time for many members of the family. Our firm strives to provide clients with successful advocacy that clearly represents their rights.
When a person makes a will when he does not have the mental capacity to make a will or when he is so dominated by another that he can't make the will that he wants to make, a will contest often results. A will is contested because the contestant believes that the will is not the true will of the testator. In other words, it does not represent the true intent of the testator to pass his estate to the people that are the natural objects of his bounty.
A will has to be in writing, in the correct form and executed according to the law to be valid. Most of the cases dealing with improper form or execution of a will involve wills that were prepared by individuals instead of attorneys. A person will type out a will on their computer, download a form from the Internet or copy a form from a book. Since the law is very strict about the form and execution of wills, many of these wills are set aside because of mistakes in the form or because of improper execution.
In order to make a will, the testator must have testamentary capacity. That means that he must know what he is doing and also know who the natural recipients of the estate would be. There are variations of testamentary capacity that may be referred to as insane delusion or mistaken in the factum. The fundamental basis of these claims is that the testator did not have the mental capacity to know what he was doing when he made his will. Therefore, the will is not the will of the testator.
Undue influence means that the testator is so controlled and dominated by another that he can't make his will the way he wants to but has to make it the way the person who is a dominating him wants him to make the will. Fraud in the inducement is just another type of undue influence.
When a will is successfully contested, the testator is treated as if he died intestate (without a will.) The court will then distribute the estate to those who would take on intestacy.
Contact us if you have questions and would like to talk to an attorney who is familiar with probate law to advise you about your rights.
The form of probate most familiar to clients is the probate of the will with the appointment of an executor. This provides for probate of a will with full administration of the estate by the person nominated in the will of the Decedent as executor.
The majority of wills filed in Texas contain language similar to the following, "I appoint [Name] to be the Independent Executor of this will to serve without bond. My Independent Executor shall act independently of any court, and I direct that no action shall be had in the county or other probate court in relation to the settlement of my estate other than the probating and recording of this, my Last Will and Testament, and the return of an inventory, appraisement and list of claims of my estate. This language creates an independent administration of the Decedent's estate pursuant to 145(b) of the TPC. No specific language is required to make the administration independent. Any language is sufficient if it indicates that the estate administration is to be free of court supervision.
The purpose of an independent administration is to permit the executor to administer the estate and distribute its assets free of judicial supervision with a minimum of cost and delay.
If a will does not state that the executor is to be independent, then he will be a dependent executor. A dependent executor is not normally desirable because he must get court approval for everything that he does. This takes time and money. There are situations, however, where an executor might want to be a dependant rather than an independent executor. If there is a conflict among the decedant's heirs, the executor can protect himself from problems by having a hearing and having the judge rule on everything that he does. This is not normally a problem and most people will want an independent executor.
A problem that comes up from time to time is the issue of a lost will. Lost wills are problems because there is a presumption that when a will cannot be found, the testator revoked the will by destroying it. One of the methods by which a will can be revoked is by destroying the original copy of the will. When a will was last known to be in the decedent's possession and cannot be located after death, a rebuttable presumption of revocation arises. In order to overcome that presumption, the proponent of the will must prove that the testator continued to have affection for the chief beneficiary of the lost will. If the continued affection is proven and there is no evidence to show the decedent was dissatisfaction with the will or had any desire to cancel or change the will, the proof is sufficient for the court to admit the lost will to probate. This assumes of course that the requirements of proving the contents of the lost will have been met.
In order to probate a lost will, the proponent of the will has to overcome that presumption of revocation as well as prove the contents of the lost will.
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