Top 5 Reasons a Will May Be Invalid

With so much information about estate planning readily available on the internet, some individuals may find it convenient to download a form document such as a will. This can be a costly a costly mistake, however, because a will that is poorly drafted, improperly executed or does not follow applicable laws may be invalidated by the court. The surest way to protect your assets and loved ones is to work with the right estate planning attorney. In this meantime, this article is a brief discussion of invalid wills.

Beware of Invalid Wills

The leading reasons a will may be invalid include:

  • Improper Execution — An improperly executed will may be deemed invalid. Generally,  the document must be signed by the testator (the person making the will) and Texas requires a will (not holographic) to be witnessed by two individuals (not named as beneficiaries) in front of a notary.
  • Lack of Testamentary Capacity — The testator must be able to understand the reason for making the will and also know the extent of estate property. Someone who is not in the right state of mind due to a mental impairment or physical condition, or who is incapable of understanding the will for any other reason, may be deemed to lack testamentary capacity.
  • Undue Influence/Fraud —  Undue influence can occur when a beneficiary, caregiver or another person with an interest in the estate pressures the testator in creating or revising a will. Fraud can occur when the testator is provided with a number of documents to sign at the same time while being unaware that he or she is executing a will.
  • Poor Drafting — A will must contain specific provisions to the effect that it is intended to be a will and the testator understands the reason for making it. The will must also clearly state how the estate property is to be managed and distributed. Finally, an executor must also be designated to carry out the instructions of the testator.
  • Replacement by a Subsequent Will — Although wills should be updated to reflect the changes that occur over a lifetime — marriage, having children, acquiring property, divorce, remarriage, retirement — a will contest may arise when the distribution plan is significantly changed or there are changes to the beneficiary designations.

Why This Matters

A well-conceived will can help to protect your assets and ensure the beneficiaries receive the inheritance you had planned for them. By taking shortcuts, using a form document or making other costly mistakes, your estate may wind up in an expensive, lengthy court battle. By working with an experienced estate planning attorney, however, you will have peace of mind knowing your estate will be properly managed and your last wishes will be carried out.

Starting the Long-Term Care Planning Process

These days, people are living longer and longer. Growing older is a fact of life, and yet many families are not prepared to face the financial challenges of providing for their medical care. The sooner you start planning for your long-term care, the better. At Hegwood Law Group, we’ve helped numerous Texas clients begin the long-term care planning process. We would love to help give you and your family that peace of mind, too. Read on to learn more about how to start planning for the rest of your life.

What is Long-Term Care Planning?

Long-term care planning addresses not only how you will pay for the kinds of medical and other support services you will need as you age, but also how you want to be taken care of and by whom in the event you become incapacitated. It is important to some people that they remain at home throughout the end of their life, while others want to be moved to an assisted living home because they do not want to be a burden on their family. No matter what your wishes are, at the Hegwood Law Group we will help you form a plan that matches your vision and give you honest and direct advice about what it will take to make that happen.

How Can I Pay for My Long-Term Care?

There’s no way around it: long-term care can be expensive. Fortunately, our experienced long-term care planning attorneys have worked with numerous clients and can advise you of the different opportunities available to you to fund your later years. Included in these options are long-term care insurance, nursing home Medicaid planning, asset protection, and Veterans Assistance (VA) benefits. We have experience working with clients who fund their long-term care using different combinations of these sources of funding, and can help you determine which ones you may be eligible to use as well.

We encourage all of our clients to obtain long-term care insurance, as our experience has shown that provides people with the ability to stay at home as long as possible. If you are unable to afford it, our attorneys will work with you to develop an asset protection plan that fits our needs. While the government can pay for long-term care in some circumstances, under Texas law to qualify for this coverage you cannot have more than $2,000 in non-exempt assets.

What Steps Should I Take to Get the Long-Term Care Planning Process Started?

We recommend all of our long-term care planning clients begin by assessing their finances, their health, and the health history of their family to get a big picture of what they might need for the future. Once you have done this, we then recommend you have conversations with your loved ones about your wishes. This ensures that, in the event of an emergency that requires you to be placed in an assisted care situation, your long-term plans will be affected. Finally, we recommend you contact an experienced long-term care planning attorney to ensure your wishes are legally formalized.

Questions About Long-Term Care Planning?

If you are ready to start planning for the rest of your life, we are ready to help you. Contact Hegwood Law Group today to learn more about your long-term care planning options.

How to Transfer Your Home Without Jeopardizing Your Medicaid Eligibility

There are many Long-Term Care Medicaid Rules in place which help pay for senior’s care costs. However, it is important for those receiving Medicaid to understand that there is a five year “look back” period where the state can actually penalize an individual from Medicaid eligibility, if there was an uncompensated transfer during this time. This can prevent your application from getting approved.

The good news is, there are ways to transfer your property to someone else, without risking your Medicaid eligibility. These exceptions on home transfers can help you and your family during this time. Here are the primary ways to transfer your property while maintaining your Medicaid eligibility.

Transfer the Home to the Right Family Member

There are a few types of family members you can transfer your property to:

  • You can transfer it to your spouse who already lives in the home.
  • You can transfer the property to a child under the age of 21 or a child who has been determined disabled by the Social Security Administration.
  • You can transfer the property to an adult child who has lived in the home for at least two years before you were institutionalized and provided care that prevented institutionalization. This requires proof by your doctor or social worker that the care was essential.
  • You can transfer the property to a sibling with equity interest in the home and who has lived in the property for one year before your institutionalization.

These transfers will not impact your eligibility for Medicaid. Be prepared to provide proof of residence in these situations.

Transfer Through Deeds

The primary deed we recommend for transfer after death is the Lady Bird Deed. This is an enhanced life estate deed that also avoids Medicaid Estate Recovery. In these situations, the person maintains control of their property during their lifetime, including the power to sell and retain proceeds assuming the Medicaid applicant signs a document stating they intend to return home.

There are also a number of tax issues that you need to be considered first before going with this type of transfer. Depending on your individual situation, the deeds may or may not be the best choice.

If you have questions about how you can transfer your property to a loved one, without risking your Medicaid eligibility, give the attorneys at Hegwood Law Firm a call at (281) 845-8538 to discover your best Medicaid options.

What to Expect During Probate When There Isn’t a Will

Most people know about a last will and testament that helps transfer assets from an individual who has passed away to their listed beneficiaries. In the time following the death of the benefactor or the “decedent” the property and assets go into what has known as probate.

Probate is the legal process involved in transferring property from the deceased’s estate to their beneficiaries. Probate typically occurs when there are real properties or financial accounts involved.

However, if a loved one dies without a will or if they die “intestate,” it does not mean there isn’t hope. In the State of Texas, there are default inheritance rules in place for situations such as this. When this happens, the decedent’s heirs can still be determined and probated. Here is everything you need to know about this process when it happens.

Selecting the Type of Administration

In situations where there is not a will, the first thing you will need to do is to select the type of administration.

Affidavit of Heirship- No administration, or the Affidavit of Heirship is used to establish the title to real estate when the asset is the actual property. No formal administration is needed in these situations where the decedent died without a will and the affidavit of heirship is filed with the county clerk, not the court.

Small Estate Affidavit – This administration is used to collect a small amount of money owed to the estate, like a small bank account. The entire assets of the estate, aside from the homestead, must be less than $50,000 and 30 days must have elapsed since the death of the decedent.

Determination of Heirship – This type of administration is used when all of the heirs of the estate cannot or will not sign a small estate affidavit. The decedent must have died without a will or with a will that didn’t include any real personal property. There must be no debts due on the real estate. After a hearing in court (without administration) the court will declare the identity of the heirs of the estate.

Independent Administration- This type of probate can only occur when the decedent’s date of death was in the last four years. The heirs must all agree on a qualified independent administration (can be a person, firm or corporation). If not, the court will appoint an Independent Administration of the Estate.

Dependent Administration- This probate is used when all of the heirs cannot agree on beneficiaries and there is argument regarding the decedent’s estate. The decedent must have died within the last four years and there has to be a need for a formal administration. This may also be used when one of the beneficiaries is a minor.

Collecting All the Information They Can on Decedent

With the help of an attorney, it is important that the beneficiaries involved are able to get as much information as possible on the decedent. This will only help the attorney assisting you through the process.

If you have any questions about how the process works or are looking for an attorney to help you through this process, contact the attorneys at Hegwood Law Firm today at (281) 845-8538 for more information on probate.