Death Certificates

deathcertificate22Death certificates in Texas are generally prepared by the funeral home handling the deceased person’s body.  Often times the family will obtain the death certificates they need from the funeral home. The number of death certificates you will need will vary greatly depending on the amount and number of assets that the person had at the time of death. Most insurance companies, banks, & many creditors will request a death certificate. In Texas, you generally do not need a death certificate to open a probate case.

After a short time has passed, additional copies of the death certificate can only be obtained from the Texas Department of State Health Services.  These can be ordered by mail or online at https://www.dshs.texas.gov/vs/reqproc/deathcert.shtm.

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Estate Planning For Singles

If you are single and not financially responsible for anyone else, having an estate plan might not seem critical. Nonetheless, estate planning can ensure that your wishes are followed both before and after you pass. One element of an estate plan is a will or trust, through which you would specify who will inherit your assets. Perhaps more important for many single people are the financial and health care powers of attorney, which allow you to determine who will help you handle your finances and manage your medical care if you should need help with those tasks during your life. Whether you have never been married, have outlived your partner, or are divorced, having an estate plan in place can ensure that your wishes are honored when you are no longer able to voice those wishes yourself.

If you fail to leave proper documents that specify what to do with your assets at your death, this will be determined by state law. Most states would apportion the assets first to the decedent’s spouse, then to any children, and finally to the closest blood relatives. But you might have friends that you consider family. You might consider a sibling’s children like your own and want them to inherit your assets. You might have a long-term partner that functions Young manas a spouse. You might want your assets to go to a charity.

If you should become incapacitated and have not prepared a financial or medical power of attorney, the state would again make key decisions on your behalf. A court could appoint a distant relative or stranger to act as your agent, but you may have a partner, family member, or friend whom you would trust to make financial or medical decisions on your behalf. A financial power of attorney names the person who you desire be given legal authority to conduct your financial affairs, and a medical power of attorney does likewise for your health care matters.

Though estate planning is often associated with traditional families, single people also need a complete a will or trust and powers of attorney documents. Some easy planning now can ensure that your assets end up in the right hands and that decisions about your assets and health care are made by the people you trust the most.

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The Dark Side of Improper or No Planning

This is a reprint of a great article I posted in my blog back in 2012.

scream  One of my favorite columnists, Pamela Yip, has written another great article regarding the need for estate planning and how the lack of proper planning can cause your family severe financial and relational problems.  This column in the Personal Finance section of the Dallas Morning News is titled “Death, money and payback.” It is set out in its entirety below.

Challenges to wills fraught with emotion

By PAMELA YIP

Personal Finance Writer

pyip@dallasnews.com

Published: 06 April 2012 08:00 PM

Dave Plunkert/Special contributor

When it comes to dealing with an inheritance, make no mistake: It’s fertile ground for a family war.

Often, one child feels cheated out of his share and ends up challenging the will.

“You would be amazed at the number of calls we get on the topic and the frequency it arises in client discussions,” said Norm Lofgren, estate planning and tax lawyer at Looper Reed & McGraw PC in Dallas. “Death, money and payback do strange things to folks.”

Those seeking to challenge a will need to know upfront: It won’t be easy.

To begin with, “there’s really not much you can do until the person passes away,” said Jay Hartnett, partner at the Hartnett Law Firm in Dallas, which specializes in estate and trust litigation. “You can’t contest someone’s will until they’ve died, until it’s been offered for probate.”

Hartnett also said much depends on the circumstances involved in the challenge.

“If someone is 40 years [old] and is doing a will, it’s very difficult to contest the will,” he said. “But if you’ve had someone who’s had an estate plan their whole life and then in the last three months of their life, they suddenly change their estate plan completely and leave it all to one child and cut all the others out, that generally screams that there is some issue out there.”

Will challenges often occur in “second-family” situations, Lofgren said.

“Dad divorces, remarries younger woman, Dad dies and children from Dad’s first marriage are unhappy that the second wife receives more under Dad’s will than the children think appropriate,” he said.

“I can’t tell you how many times I have cautioned a couple in second-family scenarios that the second wife is not the mother of the children from the first marriage, and, when Dad dies, there is a potential for a will contest.”

Hartnett advises parents not to cut a child out of their will. “Anytime a parent decides to cut one of their children out, they can pretty much guarantee themselves that there’s going to be a will contest,” he said.

In Texas, there are several ways to contest a will:

Show that the person drawing up the will lacks “testamentary capacity.”

“Testamentary capacity simply means that the person executing the will knows that they are making a will, the effect of making the will, the general nature of their assets and their next of kin, and is able to make a reasonable judgment about these factors,” Hartnett said.

Estate planning attorney John Bauer of Shackelford Melton & McKinley in Dallas explains it this way:

“Mom’s got to know that she’s got a house and basically $100,000 in the savings account and she’s got a car and she’s got three kids. She has to understand those all at the same time. If she’s not mentally competent, then the will’s invalid.”

Show that the person drew up the will under “undue influence.”

That is, the individual signed a will “that they would not have signed but for the improper influence of another person,” Hartnett said.

Bauer’s example: “If the daughter is putting a lot of pressure on the parent and, because of that, Mom relents and she names the child [as sole beneficiary], that’s undue influence.”

But Bauer said the person making the challenge has to prove the undue influence. “She’s got to prove it by the preponderance of the evidence that that indeed happened. That’s a tough proof to make,” he said.

Show that technical details weren’t followed or that the will was forged.

“Was it done under the proper law?” Bauer said. “In other words, when you do a will, you have to do certain formalities. Was the will signed before two witnesses? You have to be 18 or older when you sign the will, and the witnesses have to be at least 14 years of age.”

The timing of a challenge also is critical. A will can be contested before or after it has gone through probate, Hartnett said, but you usually have only two years to file a challenge once one is probated.

“A person who thinks they may need to contest a will should contact an attorney as soon as possible after the loved one passes away,” Hartnett said.

Here’s another critical fact regarding timing of a challenge:

“Before the will is filed for probate, it’s up the executor of the will to prove that the person was of sound mind, above the age of 18 and the two witnesses were above 14,” Bauer said. “Once the will has been admitted to probate, then it’s up to the challenger to prove that the person was incompetent or someone wasn’t of the right age.

“If you think that Mom was incompetent, the time to do it is beforehand because they have to prove by the preponderance of the evidence that Mom was competent.”

A recent change in Texas law benefits heirs.

“In 2007, the Texas Probate Code was amended to provide that an executor of an estate had to notify the beneficiaries of a will that it had been admitted to probate and provide the beneficiaries with a copy of the will,” Lofgren said. “This was a good change to make sure that all of the beneficiaries were apprised of the probate and had a timely chance to oppose the probate.”

Challenges to wills sometimes come not from children, but from a distant relative of the parent, said Ellen Dorn, estate planning attorney at Fanning Harper Martinson Brandt & Kutchin PC in Dallas.

“What I’ve seen is that when a controversy about a charitable bequest arises, it is far more common for that concern or challenge to be raised by a distant relative and not by a child,” she said.

“What you see instead are great-nieces and -nephews — people who knew Aunt Suzie and Uncle Bob were well off, they were very loving, they were very hospitable, they had no kids, and of course they would name their nieces and their great-nieces and nephews in the will,” Dorn said. “They’re disappointed when they see that no, maybe a little token gift is given to the kids, but the bulk of the estate is going to charity.”

Will contests are emotionally charged, and you should think carefully before going ahead with one.

“The advice I would give someone contemplating a challenge is to ask themselves why do you want to challenge the will,” Lofgren said. “Does the will reflect what Dad or Mom wanted to do with their own stuff? Is the money sought really worth destroying your family?”

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Protections for Surviving Family in Probate Proceedings

Contemplative woman sits at beachOften times survivors of a decedent are afraid of probate, fearing the small amount in the estate will be eaten up by all the creditors and probate fees.  But in Texas, the legislature has created several protections for a surviving spouse and family.

First, most property accumulated during a couple’s marriage is considered to be the property of both of them equally, i.e., community property.  Property owned by one party prior to marriage, and gifts and inheritances received by one of the parties during the marriage are generally considered separate property.  However, characterizing a couple’s property at death can be tricky because of some of the exceptions to these general rules.  Additionally, if a couple has a prenuptial agreement or a postnuptial agreement related to the character of their property, that may supersede these general rules.  But this first step of characterizing all of the couple’s property as community or separate property is critical to how it will be treated during probate.

The second protection for the surviving spouse and family is called a Family Allowance.  This allowance is intended to provide for the surviving spouse, the decedent’s minor children and the decedent’s adult incapacitated children.  The amount allotted by the court is to be an amount sufficient to maintain those individuals for a period of one year after the date of death.  A number of factors are evaluated in determining this family allowance.

If a couple owns its primary residence, the surviving spouse has the right to occupy that “homestead” during the surviving spouse’s lifetime.  This right exists even if the home was left to someone else under decedent’s will and even if the home was characterized as the decedent’s separate property.  Additionally, the guardian of decedent’s minor children may apply for a court order authorizing the guardian and minor children to occupy the homestead.  The surviving spouse (or guardian of minor children) will have certain financial obligations regarding the home while they occupy it.  Upon the death of the surviving spouse (or end of the court order regarding the minor children) the home will revert to the person or persons who have legal title to the property.  If the couple did not own the home they lived in, provision is made for an “allowance in lieu of homestead.” The allowance amount is less than the actual amount of the probate homestead, but it is meant to ensure that the surviving spouse of even the smallest estate does not walk away with no ability to provide for their future.

Finally, Texas law allows the set-aside of a certain amount of personal property that will be exempt from creditors’ claims. The law includes a detailed list of items that will qualify as personal property that can be set-aside – it does NOT apply to everything.  If the specific items listed in the law are not included in the estate, a cash amount can be provided.  The amount varies depending on whether the surviving spouse is single or has a family.  The cash amount usually is less than the actual amount of the exempt personal property, but it (like the allowance in lieu of homestead) is meant to ensure that the surviving spouse of even the smallest estate does not walk away with no ability to provide for their future.

In an estate where the surviving spouse or family might otherwise end up with very little or nothing, these protections serve a very real and appreciated purpose.  However, as is evident from carefully reading the descriptions above, it is important that the surviving spouse and family received knowledgeable and experienced counsel regarding the probate process.  Otherwise, the protections intended may not be put into place.

 

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