The Reecer Law Firm

Texas Estate Planning & Probate Law

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What Makes a Will Invalid?

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A will is a legal document that outlines a person’s final wishes for the distribution of their assets after they pass away. However, not all wills are valid, and there are several reasons why a will may be deemed invalid. Listed below are the  most common reasons why wills are considered invalid.

Lack of Capacity

What Makes Wills Invalid

One of the most common reasons why a will may be considered invalid is if the person making the will lacked the mental capacity to do so. The law requires that a person making a will must understand the nature of their assets, the extent of what they are giving away, and the people who may have a claim to their estate. If it can be proven that the person making the will lacked the mental capacity to understand these things, the will may be declared invalid.

Undue Influence

Another common reason why a will may be considered invalid is if the person making the will was unduly influenced by another person. Undue influence occurs when someone uses their position of power to persuade the person making the will to make decisions that are not in their best interest. For example, a caregiver who spends a lot of time with an elderly person may use their influence to persuade the elderly person to leave them a large portion of their estate. If it can be proven that the person making the will was unduly influenced, the will may be declared invalid.

Improper Execution

A will must be executed properly in order to be considered valid. This means that the person making the will must sign it in the presence of witnesses, who must also sign the will in the presence of the person executing the will. If the will was not executed properly, it may be declared invalid. For example, if the witnesses were not present when the person making the will signed it, the will may be declared invalid.

Fraud

If a will was obtained through fraud, it may be declared invalid. This can occur if someone makes false statements or conceals important information in order to persuade the person making the will to leave them something in the will. For example, if someone tells the person making the will that a particular family member has passed away when they have not, in order to persuade the person making the will to leave them a larger share of the estate, the will may be declared invalid.

Duress

Duress occurs when someone uses threats or force to make the person making the will do something they do not want to do. If it can be proven that the person making the will was under duress when they made the will, the will may be declared invalid. For example, if someone threatens the person making the will with physical harm unless they leave them a larger share of the estate, the will may be declared invalid.

Mistakes

If there are mistakes in the will that materially affect the distribution of the estate, the will may be declared invalid. For example, if the person intended to leave their estate to their spouse, but due to a clerical error or mistake in drafting the will, the provision in the will mistakenly leaves a portion of the estate to a non-relative, the will may be invalidated.

Revocation

A will may also be declared invalid if it has been revoked. A will can be revoked by the person making the will at any time before their death, either by destroying the original will or by making a new will that revokes the old one.

In conclusion, a will is an essential document that helps ensure that a person’s estate is distributed according to their wishes. However, there are several reasons why a will may be deemed invalid, including lack of capacity, undue influence, improper execution, fraud, duress, mistakes, and revocation. If you are making a will, it is essential to ensure that it is executed properly and that you are not under undue influence or duress. This will help to ensure that your wishes are carried out after your death.

Contact the Reecer Law Firm PLLC for Assistance

Dena Reecer, founder and owner of the Reecer Law Firm PLLC, is Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization. If you have questions or concerns regarding a will or its validity, please contact us for more information about how we can help you.

Our office is located at 3105 Unicorn Lake Blvd., Denton, TX 76210 and our phone number is (940) 382-3168.

Do I Need To Include My Personal Belongings In My Will?

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There are two types of personal property according to the Texas Estates Code: Tangible personal property which requires a transfer of title such as a car, boat, or motor home, and tangible personal property which does not require the transfer of a title such as heirloom jewelry, family pictures, pieces of artwork, or items located in another item, such as the contents of a cedar chest.

How you handle these items and whether you mention each item in your will depends on whether you want a specific person to inherit the item, or you want your personal representative to distribute the property at his or her discretion.

Handling Your Personal Belongings in Your Will

Personal belongings and wills

For your personal belongings that require a transfer of title, you may want to have a beneficiary designated on your title so that it is clear that upon your death, the title to the item, such as a vehicle, is transferred to a specific heir. If you do this, you do not need to name the item in your will.

If you have not named a beneficiary on the title, you will then want to include that item in your will and name the person you want to receive that item.

For every piece of personal property, you want to leave to a specific person, you must name that person in your will. For example, if you want to leave your grand piano to your grandchild or a piece of art to a loved one who has admired it, you must say so specifically in your will.

Handling Your Personal Belongings in a Memorandum

If you do not care who the items go to, you can be general in your will and make a statement like “the contents of my home shall be divided according to a memo I leave.” The memo can list specific items that you want to leave to specific people, e.g. “I would like my pieces of art sold and the proceeds given to X charity.”

You could also say in the memo “the contents of my home shall be distributed according to the discretion of my executor.” This allows you to purchase new personal items without having to update your will every time you do so.

The Memorandum must be signed and dated and then acts as a codicil to your will. This allows you to update the memorandum without needing to execute a new will.

Contact the Reecer Law Firm for More Information

For more information about the best way to leave your personal belongings to your heirs, contact one of our estate planning attorneys at the Reecer Law Firm.

The founder and owner of The Reecer Law Firm, Dena Reecer, is Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization. Contact us for more information about how our attorneys can help you.

How To Protect Your Assets From Nursing Home Costs

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As we grow older, we often worry about what will happen if we become ill or incapacitated and need to be cared for in a nursing home. After all of our hard work accumulating assets, we don’t like to think of losing them paying for nursing home costs.

There are a few ways to protect your assets from nursing home costs, but in order to do this, you must plan ahead. You should talk with an estate planning attorney as soon as possible so you can begin the asset protection process.

Timing for Asset Protection Measures

You can protect your assets so that Medicaid will pay your nursing home costs, but you must have taken these steps at least five years prior to your need for nursing home care. Medicaid wants to be sure you are not acting quickly just to avoid nursing home costs.

Asset Protection Measures to Take Now

An overview of methods your estate planning attorney can do for you:

Nursing Home Costs

Draft a deed retaining a life estate for your real estate. The deed retaining a life estate names you as the life tenant. You name a trusted loved one as the remainderman. The remainderman has a future ownership interest in the property. You retain the right to live in your home until your death. You retain that right even when you are in a nursing home.

When you die, the ownership of the home transfers to your remainderman. Then, Medicaid has no claim to the home provided the life estate was formed at least five years before you entered the nursing home.

Create an irrevocable trust. When you put your assets into an irrevocable trust, you are no longer their owner. Therefore, Medicaid cannot touch them. You name someone you trust as an independent trustee.

Other possible options. Your estate planning attorney can explain to you other possible solutions. Ask about:

  • How you can place your liquid assets into an annuity.
  • Transferring part of your monthly income to your spouse.
  • Use of a pour-over trust.
  • Purchase of long-term care insurance.

Contact the Reecer Law Firm PLLC for Assistance

Dena Reecer is Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization. She is also the founder and owner of the Reecer Law Firm PLLC. She will review your portfolio and assist you with preparing all asset protection documents you need. Contact the law firm for more information about how she can help you.

The Corporate Transparency Act: What Do I Need To Know?

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In September 2022, the U.S. Treasury Department’s Financial Crimes Enforcement Network (FinCEN) issued its Final Rule under the Corporate Transparency Act (CTA) updating the U.S. anti-money laundering laws. The Rule has new reporting requirements so that the beneficial owners of businesses will be revealed.

The Rule goes into effect on January 1, 2024. There are different deadlines for business entities depending on the date they were established. There are long lists of types of business entities that must report as well as a list of 23 categories of businesses that are exempt from reporting.

The new CTA Final Rule is long, nearly 200 pages of text, and complicated. There are stiff criminal and civil penalties for violating the Rule. Business owners who violate the Rule are subject to spending up to two years in prison and a fine of $500 per day for every day FinCEN determines the business was in violation.

What is the Final Rule and What Do I Need to Know

The best overview of the Final Rule comes from FinCEN:

The Corporate Transparency Act

“The Corporate Transparency Act (CTA) establishes uniform beneficial ownership information reporting requirements for certain types of corporations, limited liability companies, and other similar entities created in or registered to do business in the United States. The CTA authorizes FinCEN to collect that information and disclose it to authorized government authorities and financial institutions, subject to effective safeguards and controls.”

The purpose of the Final Rule of the CTA is to “help prevent criminals, terrorists, proliferators, and corrupt oligarchs from hiding illicit money or other property in the United States.”

The main thing you need to know is what “beneficial owner” means, what are the reporting requirements, and how to make sure your business is in compliance.

Who is a Beneficial Owner?

According to the Rule, a beneficial owner is defined as “any individual who, directly or indirectly, either exercises substantial control over such reporting company or owns or controls at least 25 percent of the ownership interest of such reporting company.” This includes any senior officer of a business entity who has “substantial control” over important decisions.

Determining whether a person is a beneficial owner is not an easy task. For example, a person may be considered to have substantial control if:

  • They serve as a senior officer in the reporting company.
  • Have authority over the appointment or removal of senior officers.

Or a majority of the board has “substantial influence of important decisions. Or the person or board members have “any other form of substantial control over a reporting company.

There are also exceptions. For example, minor children are not beneficial owners if their parent or guardian is identified as a beneficial owner. Heirs of the beneficial owners and creditors are not beneficial owners.

What are “Reporting Companies,” When, and How, Do They Report?

What is a reporting company? If the business structure is one that is “created by filing a document with “a secretary of state or similar state or tribal office” it is one that is also required to report the beneficial owners. This includes corporations, limited liability companies, and more.

There is also a list of 23 categories of businesses that are exempt, such as banks and public utilities.

When do they report? Reporting requirements go into effect beginning January 1, 2024. If the business was registered prior to January 1, 2024, its first reporting date is January 1, 2025. If the business is created after January 1, 2024, its first reporting date is within 30 calendar days after its creation or registration.

How do they report? FinCEN is creating forms for reporting companies to use for reporting beneficial ownership information. The forms are expected to be available far in advance of January 1, 2024. They will be published in the Federal Register.

Contact The Reecer Law Firm PLLC for Assistance

You need to start preparing now to comply with the Final Rule by its effective date of January 1, 2024. It requires determining if your entity is one that must report, if so, you must identify the beneficial owners, and more. You must establish policies to monitor any change in ownership and changes to your reporting status.

If you are involved in mergers and acquisitions, your due diligence will now include making sure the target companies have met their reporting requirements.

The risk of being swept up in money-laundering investigations is great for those who have done no wrong but simply failed to comply with their reporting requirements. You can avoid that risk by using the resources of the Reecer Law Firm, PLLC.

The founder and owner of The Reecer Law Firm, Dena Reecer is Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization. Contact us for more information about how our attorneys can help you.

What If Someone Dies Without a Will In Texas?

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If a person dies in any state without a will, they are said to have died intestate. Since they died without leaving written instructions about how they want their assets distributed, the assets will be distributed according to the Texas Estates Code.

The law requires the court to appoint an executor of the estate. Beneficiaries have no say in who this executor will be. Also, the law lays out clearly how the assets of someone who dies without a will are distributed. This law cannot be challenged.

Texas Property Distribution Law When Someone Dies Intestate

An overview of who inherits the assets of someone who dies intestate is:

Texas code on wills
  • All assets go to a surviving spouse if there are no children.
  • If there are surviving children but no spouse, the assets are divided among the children.
  • If there is a surviving spouse and children, and the children are the children of the surviving spouse and the decedent (the one who died), the spouse inherits all community property, one-third of the decedent’s separate property, and the lifetime use of any separately owned real estate. All other assets are divided equally among the couple’s surviving children.

This is not a comprehensive list. It continues with rules for those related to the decedent depending on the level of the relationship of survivors. There are additional distribution laws that can make distribution complicated, for example, if the decedent has a surviving spouse, but children with former spouses or from other relationships.

The list continues and depending on whether there are surviving heirs in one category, the decedent’s estate will continue down several levels until a living person is found. The order of intestate succession is spouse, children, parents, siblings, cousins, nieces, and nephews, etc.

Property that is Exempted from Laws Governing Intestate Asset Distribution

Some property is exempt from intestate distribution laws:

  • Proceeds of life insurance. These go immediately to the named beneficiary.
  • Property owned in joint tenancy. It goes to the surviving joint tenant.
  • Retirement funds. They go to the named beneficiary.
  • Property in a living trust.
  • Bank account funds when there is a payable-on-death provision for funds to be transferred to the named beneficiary.

Contact the Reecer Law Firm PLLC for Assistance

Dena Reecer is Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization. She is also the founder and owner of the Reecer Law Firm PLLC. If you are an heir of someone who died intestate or are the court-appointed executor of an estate or personal representative, contact the law firm for more information about how the attorneys can help you.

When Do I Have To Probate A Will?

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It is possible for someone with a large estate to die without a will. This happens when the decedent made other arrangements for the transfer of property, such as establishing trusts, naming beneficiaries on retirement accounts and insurance policies, or owning property with another person as joint tenants with rights of survivorship.

If there is a will, that will must be admitted to probate in order for the assets named in the will to be transferred to the named beneficiaries.

When Do I Have to Probate a Will in Texas?

Texas law requires that when a person dies with a will, that will must be admitted to probate within four years of the person’s death. The will usually names an executor of the estate, and the executor is the one who is charged with filing the will within the time frame established by law.

If the executor fails to file the will within four years of the decedent’s death, the assets may then be distributed according to the laws of intestacy, which govern asset distribution when there is no will.

Overview of the Probate Process

The will must be submitted with a probate application to the probate court in the county where the decedent died. A court hearing will be scheduled to take place after the probate application and will are submitted to the court. The court clerk will give notice that the will has been filed.

At the hearing, if no one has come forward to contest the will, the court will determine if the will is valid and appoint an executor, which is generally the person named in the will.

If the estate is small, there are few assets, and no one contests the will, the probate process can be completed in about six months. For larger estates, and if someone contests the will, the process can take more than a year.

Contact the Reecer Law Firm PLLC for Assistance

Dena Reecer, founder and owner of the Reecer Law Firm PLLC, is one of a few Texas attorneys who are Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization. Contact the firm for more information about having a loved one’s will submitted to probate so the assets can be distributed according to the decedent’s wishes.