Category Archives: Video Blog

Inheritance Disputes

Unfortunately, many people find themselves involved in ugly inheritance disputes when their loved one dies. What someone thought was included in a Will ends up not being that way. Learn what methods are available to challenge a will, and important facts that can make a difference.

Transcription:

Prospective Client: My Father recently passed away, and he always told us growing up that he would take care of us. After my parents divorced, my Dad got remarried and he made it very clear that she was going to take care of her own kids and that he was going to take care of us and not to worry about it. Now you can imagine our shock and dismay and surprise now that his wife is saying that he left nothing for us and everything is left for her, and we’re wondering if we have any recourse.

Burdette: You do. It’s a difficult situation that people sometimes find themselves in. We can’t know exactly what’s happened when he wrote the will until we investigate further, but there are legal bases to contest a Will. It’s a Will contest action that’s based on two things. One, did he have legal capacity, mental capacity, when he created that will? Did he know approximately how much money he had? Did he know who the objects of his bounty were? Did he have an understanding of what he was doing? We don’t know health-wise what was going with your dad at the time he wrote it.

Another way to challenge a Will is from what’s called undue influence. Was he in such a weakened state that she could have prevailed on him and did so in such a way to get him to do what she wanted to do as opposed to what he wanted to do? It’s difficult to prove, but in some cases the judges and juries find that someone was unduly influenced. Wills can also be contested on things like fraud or forgery, but undue influence and lack of capacity are the two primary bases that would make sense to look into in your situation.

Separate vs. Community Property

Elliott Burdette breaks down the differences between separate and community property. He also discusses how a prenuptial agreement can be used to simplify the distribution of shared property between a husband and a wife.

Transcription:

Prospective Client: I have a question about community property – what is it exactly?

Burdette: Community property is a system we have in Texas, and in California and a few other western states, that says if you’re married – for divorce and for death purposes – that whatever you own is presumed to be owned by both of you. Even if it’s just in one person’s name, people mistakenly think if it’s only in one person’s name, “I own it – others have nothing to do with it.” Well, it’s true that person can make decisions about the property during the marriage, but for death or divorce purposes (here we are focused on death purposes), the property is presumed to be community unless the person can show that someone had it before the date of marriage, or that during the marriage the person received it from a gift or inheritance. Otherwise, it will be considered to be community property.

Prospective Client: I have an Aunt in her 70’s and she met a man and they’re engaged – and they both have had previous marriages. They have their own Wills and their own kids. But someone told them about doing a pre-nup and that seems crazy to me.

Burdette: Well, maybe it’s because you think they’re in their seventies, and when you think of pre-nups you think divorce. But here it’s important for them because that while they’re married, if they have their own separate investment accounts, one could be at Charles Schwab, and one could be at Merrill Lynch, they’re going to get dividend and interest income from their investments. In Texas, while the investment accounts are separate property, the income you get from separate property is community property. And then they re-invest that into their other separate property and it starts to get mixed up. The longer they live, the more it gets mixed up, until it gets to be commingled and becomes an accounting nightmare and expensive to sort it all though. It can get to a point where it gets mixed and it becomes community property and when the first one dies, their kids have to sort it all out and if one side has more than the other, the other side’s family could claim a portion of that estate. It will become all that they don’t want to have happen. So a simple prenuptial agreement, depending on their circumstances, that says that income from separate property will remain separate property can go a long way to solve that type of problem for the people that you are describing. This can’t be considered to be legal advice to them because I don’t know their situation, but I’m answering this generally.

Prospective Client: Basically, a pre-nup just simplifies things. It doesn’t have to be some huge document?

Burdette: Well, sometime it takes more than a page or two, but it depends on how extensive people want to go with it. One that says separate property will remain separate property doesn’t have to be that long, but a lawyer does need to prepare it.

How to Protect Beneficiary’s Rights

Dallas probate attorney, Elliott Burdette, explains how to protect your rights as a beneficiary. Just because you are not named as the executor of an estate, or trustee of a trust, you still have rights that can be protected and enforced. Listen to Elliott Burdette as he explains different ways an attorney can help look out for your best interest.

Transcription:

Prospective Client: My Mom died recently in Dallas and I live out of state. My sister has been appointed executor. I’m not exactly comfortable with it. I don’t know that she’s done anything wrong, but I’m just not sure what to do at this point, if anything.

Burdette: Well, there’s a few things to do. I assume you are a beneficiary under your Mother’s will?

Prospective Client: Yes.

Burdette: Okay, for several people we do what’s called monitoring an estate. We contact the attorney that your sister is using. We say hello and that we represent you, and that we aren’t expecting there to be any problems with the estate. However, you live out of state and you prefer to have someone locally who can advise you. I ask that they copy me on everything that goes on with the estate so that I can go over it with you. That goes on a lot. It shouldn’t signal any alarms if her attorney gets a call like that.

Prospective Client: Yes, because I don’t want to start any battles.

Burdette: It shouldn’t signal an alarm with the attorney, but I don’t know how your sister or how she would react. Some people prefer an even more remote monitoring of the estate. That’s where we periodically check the courthouse files, go online and view copies of everything, and don’t even let them know we are monitoring it. That’s another option.

Prospective Client: Frankly, it sounds terrible, but I don’t trust her in my gut. Is there something else I should do with that in mind?

Burdette: There are some people that just downright cheat. If they think they can get more dollars, or more than other people in the family, or if there’s a family business with a way to value things and a way to mislead people, some people will do that, unfortunately. Your sister is what’s called a fiduciary. A fiduciary is a person who is an executor of an estate, or trustee of a trust, and they have the highest legal standard in duties that the law gives anybody toward the beneficiaries, which is you. She can be held to the highest standards of conduct. There are ways to make her accountable, but she does have a lot of power. If you have that kind of concern you should watch her closely.

Prospective Client: So I do have rights even though I’m not the executor?

Burdette: Absolutely, you have rights that can be protected and enforced.

Wills & Living Trusts: The Pros and Cons

When it comes to preparing for the future, there are many opinions relative to which estate planning strategy is the best. The fact is that the answer is different for every person and for every married couple. Elliott Burdette explains the differences between, as well as the pros and cons, of Wills and Living Trusts.

Transcription:

Prospective Client: My husband and I are trying to get our papers in order so that we can get some Wills prepared. Someone told us we should do a Living Trust instead – what’s the difference?

A Will is a document that says who gets what at the time you die. It is only effective after death and then it is admitted to a probate court and then what is called “accepted to probate.” It is then given legal validity and its terms are honored. With a Will, you have to file an inventory with the Court in which you list your financial assets and you disclose your probate assets to the Court. With a Trust, it’s a different legal document governed by contract law. A Trust can have effect at the time you create it. A Trust can say who gets what at the time you die, so it becomes a substitute for a Will. But a Trust also says what happens if I become incapacitated at some future time in my life. We name a successor trustee to manage our affairs, and help avoid a costly guardianship. Some people say you can just get a Power of Attorney. But, in some Powers of Attorney where they’re older than 3 to 5 years, not everybody will honor them. But if assets are transferred into a Trust and there’s a successor trustee named, no one would have to have a guardianship of the estate. So you avoid that, and at the time of death, even though in Texas the probate system is streamlined, and simpler than most states, you still have to do something. With a Trust you don’t have to do that at all. Some people also like a Trust because you don’t have to disclose your assets or finances to the public, and become part of public records, like you do with a Will. With a Trust, it’s a bigger job up front to fund the trust, and more costly. With a Will, less work needs to be done before the time of death, and it’s cheaper. So when people ask me what is better, I always say my rule of thumb is it depends on your circumstances, and the older someone is, particularly when people are 65 and older, when risk of incapacity is greater, I think it is makes more sense to have a Trust and have it fully funded and have the whole family involved in the process so they know what will happen if there is incapacity and they can avoid the risk of guardianship or have to deal with probate later on.

Prospective Client: If you’re younger, like we are, early 40’s, would a Will be something you’d recommend?

Burdette: Yes, it becomes a judgment call about a Will or a Trust at that time. Some people say, “Well, if someone becomes incapacitated you could just do a guardianship.” But, it’s still a nightmare to have to go through a guardianship. Wills cost less and you may want to choose it for that. So it’s a subjective call and there’s no clear right or wrong, considering how streamlined Texas probate is.

Does my loved one need a Guardian?

If you’re concerned that your elderly loved one has become careless or reckless with their finances, there is a solution. Elliott Burdette explains what it means to be an “incapacitated person”, and how a Guardianship works in those situations.

Transcription:

Prospective Client: My Mother passed away a few years ago. And my Dad is on his own. He’s 86. We are a little concerned that he’s doing strange things – like we found some ads from the Philippines and we are concerned he might be doing something strange on the internet. We just aren’t sure. What can we possibly do to safeguard him?

Burdette: So, you’re concerned about him foolishly spending money?

Prospective Client: Yes. Absolutely.

Burdette: There are some things you can do. People are entitled to spend their money however they want, unless they are considered to be an incapacitated person. In Texas, that is connected with something called a guardianship. A guardianship is a severe remedy in which you essentially take away someone’s rights to control their person or their estate, their money. And you do this after a showing in Court that this person is not able to properly look after their finances anymore. This happens with some frequency with older people because there’s no clear cut line in which someone is capable and then something happens in their life and they start foolishly giving away a lifetime of savings to other people, sometimes through the mail and sending it off to far corners of the world. A guardianship application could be made by you, or one of your brothers or sisters. You will have to have a doctor examine your father, and if he won’t go voluntarily to a doctor, you can request an independent medical examination be ordered by a judge. In Dallas County we have an excellent Court investigator system where these well-trained people go out and interview the proposed incapacitated person and report back to the Court. Courts don’t do this lightly and actually prefer a lesser restrictive alternative than a guardianship, but sometimes getting a guardianship of the estate is the only way you can protect people from themselves.