The Reecer Law Firm

Texas Estate Planning & Probate Law

Wills

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.

Do I Have to Hire an Attorney to Probate a Will?

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Probate is the process where a decedent’s will is submitted to the probate court that first determines the validity of the will. Then, the court oversees the payments to creditors and makes sure the decedent’s wishes, as expressed in the will, are followed. Texas law specifically provides that “a will is not effective to prove title to, or the right to possession of, any property disposed of by the will until the will is admitted to probate.”

Why You May Need an Attorney to Probate a Will

Texas courts are divided. Texas courts are divided on the issues of whether an executor of an estate or personal representative can represent themselves or whether only an attorney can represent the estate. In most Texas courts, you need an attorney.

Hire an Attorney

Only an attorney can represent the interests of others. You need an attorney because Texas law also prohibits a non-attorney from representing the interests of anyone in court but themselves. A will generally has beneficiaries other than the executor or personal representative. If the executor or personal representative files pleadings on behalf of the beneficiaries without the assistance of counsel, it amounts to the practice of law without a license, which is against Texas law.

Probate can be a complicated process. Additionally, probate can be a complicated process that can take up to a year or more to complete. If anyone contests the will, complex legal issues will be involved that require the attention of an experienced probate attorney who knows how to defend the will against challenges by beneficiaries or by those who were left out of the will and challenge that omission in court, believing the omission was a mistake.

In a routine probate, with no issues of validity and with no challenges by beneficiaries, there are still complex legal terms and procedures that must be followed that are difficult for a non-attorney to understand and follow.

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 are the executor of an estate or personal representative, contact the law firm for more information about how the attorneys can help you in probating a will.

What is a Living Will?

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A Living Will, also known as an Advance Directive, is a document you create that gives direction to your family and health care professionals about the medical treatment and procedures you want under certain circumstances when you cannot make healthcare decisions for yourself. Your Living Will is part of your estate plan and will be drafted by your estate planning attorney.

Difference between a Medical Power of Attorney and a Living Will

With a Medical Power of Attorney, you give someone you trust the power to make medical decisions for you when you are unable to make them yourself.

Wills

With a Living Will, you are the one who gives instructions to medical personnel about what care you want if you become incapacitated. Your doctors must legally follow the instructions you have given in your valid Living Will. Family members cannot interfere and must accept the care you have requested.

To be valid in Texas, you must sign the document in the presence of two witnesses who also sign the document.

How a Living Will Works

A Living Will is generally used when the signor does not wish to be kept alive by artificial means when they are in a permanent vegetative state with no likelihood of recovering. Instead, the signor directs their medical care team to keep them hydrated and free of pain, but to allow them to die naturally without a feeding tube or life support.  A Living Will is NOT a Do-Not-Resuscitate Order (“DNR”).  A DNR is a document that is signed by either the principal or a medical agent to direct healthcare providers not to engage in cardiac resuscitation at end-of-life situations.  Contact the Reecer Law Firm PLLC for Assistance

Creating a Living Will (Advance Directive) is complicated. There are many things to consider when you are instructing medical personnel about the treatment you do or do not want.

For assistance with this document, or any other aspect of your estate planning, contact our attorneys at The Reecer Law Firm, PLLC. You may also call (940) 382-3168.

Dena A. Reecer, principal and founder, has been Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization since 2008 and has decades of experience in helping clients with preparing documents designed to carry out their final wishes.

How Often Should I Revise My Will?

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Every adult who has an ownership interest in anything of value should have a will. This is true no matter how old or how young you are. Life is uncertain and unfortunately, no one knows which day will be their last.

If you have a will that expresses how you want your assets to be distributed, it allows a probate court to see that your wishes are carried out. If you do have a will, another issue arises: how often should you revise your will?

Living Will

Revising Your Will When There are Major Life Changes

One consistent recommendation is that any time you experience a major life change, you revise your will, or review your will to determine if you should revise it. Some examples of life changes include:

  • You get married.
  • You get divorced.
  • You have a new child, either by birth or adoption.
  • You experience a financial windfall such as you inherit money, win a personal injury case, win the lottery, etc.
  • You experience a financial loss, such as losing a large sum of money in the stock market.
  • Laws change.
  • You change your mind about a beneficiary.
  • You move to another state. Each state has its own laws about what constitutes a valid will and how many witnesses are required.
  • Your health deteriorates.
  • A grandchild is born.

These are just examples. Any life change should trigger you to think about whether your will needs revising.

Periodic Review of Your Will

Even if you do not think your will needs any changes, it is a good idea to review it periodically. Many estate planning attorneys recommend you review your will every three to five years to be sure it still expresses your wishes.

Life changes can occur at times when you are not thinking about your will. A periodic review will help you be sure that your wishes have not changed and that your will still represents how you want your assets to be distributed.

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. If you are considering preparing or revising your will, contact us for more information about how we can help you.

Estate Planning: Do I Need a Trust?

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Creating a trust is often part of estate planning. There are several types of
trusts available and whether you need one or not depends on your own
unique situation.

What is a Trust

Trusts

Black’s Law Dictionary defines a trust as “a right of property, real or personal, held by one party for the benefit of another party.” Trusts serve many purposes and may be created so there are tax savings for you, the creator of the trust, and your beneficiaries.

When you create a trust, you transfer ownership of your assets to the trust.
For example, you change the deed to your home from you, John Doe, as
the owner of the property to “The John Doe, Trustee of the John Doe Living Trust” as the owner. You do this with all property you want to have managed by the trust.

You appoint a trustee in charge of managing the trust and ensuring your assets are distributed at your death to your beneficiaries according to the terms of the trust. You may name yourself as the Trustee to manage the trust during your lifetime, and you may wish to name another person or corporate entity to act as trustee upon your death. There are many types of trusts that can be established depending on your individual needs and goals.

Major Advantages of Trusts

There are many advantages to having a trust, particularly for individuals who own real estate, those who have minor children, and those who have children from previous marriages. Some specific advantages are:

  • Avoid probate. The assets are immediately distributed to the beneficiaries according to the terms of the trust. This means no probate costs and fees and no lengthy wait for the probate court to approve distribution.
  • Reduce taxes. Depending on the structure of the specific trust, there are generally substantial tax savings for you during your life and for your beneficiaries after your death.
  • Privacy. Probate court is open to the public. Property in a trust is transferred privately to the beneficiaries.

These are just a few reasons why you may want to create one or more trusts as part of your estate planning.

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. If you are considering drafting any type of trust, contact one of our trust attorneys for more information about how we can help you.