The Legal Corner: Steps to help get started on estate planning

Sam Moak

Editor's Note: The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

While watching a law school classmate of mine handle a disputed estate in Fort Bend County, it occurred to me the best way to avoid a Will contest is to have a well written Will prepared by an attorney who can help you avoid potential conflicts. This week I will discuss reasons for contesting a Will (Grounds), limitations for contesting a Will (Time Limits), what you need to do to contest a Will (Procedure) and what happens to the estate if the contest is successful (Effect of Successfully Contesting a Will).

If a person makes a Will when he does not have the mental capacity to make a Will or when he is so dominated by another that he can't make the Will that he wants to make, a Will contest often results. A Will is contested because the contestant believes that the Will does not represent the true intent of the testator to pass his estate to the people that are the natural objects of his bounty.

A Will must be written, in the correct form and executed according to the law to be valid. Most of the cases dealing with improper form or execution of a Will involve documents that were prepared by individuals instead of attorneys. A person may type out a Will on their computer, download a form from the Internet or copy a form from a book. Since the law is very strict about the form and execution of Wills, many of these documents are set aside because of mistakes in the form or because of improper execution.

In order to make a Will, the testator must have testamentary capacity. That means that he/she must know what they are doing and what their estate consists of, and who the natural recipients of the estate would be. Additionally, the testator must not have been the subject of undue influence. This means that the person making the Will was so controlled and dominated by another, that he/she couldn’t make his/her Will they way they wanted. 

When your inevitable day comes, your surviving loved ones will grieve for you. Each of them will deal with the loss of you in their own unique way. There will be days, months and years often filled with emotion and conflicts among and between your surviving loved ones. Unfortunately, this can often lead to family battles over personal belongings and other similar inheritance conflicts. Any planning that can be implemented today to alleviate such pain to your surviving loved ones must be considered by you.

Greed and pettiness appear at first blush to be the cause of most inheritance conflicts. However, a closer examination of inheritance conflicts reveals that they are actually signs of the survivors’ deep desire to feel connected and important to you. Studies have found that the battles for dad’s watch or mom’s wedding ring are not just about the material items, but rather what these items symbolize to surviving loved ones, i.e., how important they were to you and how much you loved them.

When families fight about inheritance, money and greed are rarely the cause of the conflict. Most of the time, the source of the conflict can be traced back for years, even back to childhood. As an elder in your family, you probably already know what conflicts exist among your loved ones. The last thing that you would ever want to leave for your surviving loved ones is additional fuel for any existing ongoing conflicts.

Unless you elect to be proactive, upon your death your loved ones could be entrenched in a long inheritance conflict lasting for years and costing thousands of dollars. However, with careful planning, you can avoid the inheritance conflicts among your loved ones. After all, the reason why you plan for your death is not for you, but for those whom you love the most.

The hearing I witnessed my classmate handle was just a preliminary hearing on discovery and it took over 3 hours. The matter had already been filed, unsuccessfully, in 3 other courts. All this to say, the family had spent a great deal of money on legal expenses with no resolution in sight, which may have been avoided had the testator hired an attorney to assist with writing the Will. There is no form, no internet document, and no water cooler advice, that can replace the skill and knowledge of an experienced attorney in avoiding contest. While there are some issues you can’t avoid, you can draft and execute a Will in such a manner as to deter fights once you are gone. An ounce of prevention would save tens of thousands of dollars. 

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. www.moakandmoak.com