If your will does not provide for a contingent trust, then your heirs will have full control over their inheritance upon their reaching the age of majority (age 18). Most understand that it is rare to find an 18 year old who is sufficiently mature to be given unfettered access to an inheritance. Consequently, when most clients sit down and really think about at what age their children or grandchildren should come into their inheritance, more often than not, I hear ages between 25 and 30.

A contingent trust is a trust in which it states that, under special circumstances, money should be held in trust and the heir should only get a specified, or limited, amount. As noted, the most common special circumstance to trigger a contingency trust is that one of the heirs is under a certain age. An attorney has an substantial amount of flexibility in drafting a contingency trust, and I find that properly explaining the possible uses of a contingency trust can make my clients much more at peace with passing on their estates. For example, a contingency trust may provide that all living expenses will be paid as long as the beneficiary is enrolled full-time in an accredited university. Another is example is: Provision may be made to allow full distribution upon an heir reaching the age of 25, or obtaining a four year degree, which ever event occurs first.

It is also possible to determine in advance how much money should be available to the heir while the contingency trust is in effect. Probably the most common provision is that the trust should provide for the health, education, maintenance and support of the heir (a HEMS Trust, pronounced “hims”). This allows the trustee a considerable amount of discretion. Depending on how well you know the person you are appointing as trustee, you may or may not be comfortable with this. It is also not uncommon to give an heir a specified dollar amount wherein the trust corpus or res is distributed in incremental steps. If the dollar amount is stated in the year of the will, then the will should provide for the amount to be adjusted by the rate of inflation.

If you would like to schedule an appointment to discuss the drafting of your wil, please contact my office in Huntsville or The Woodlands, Texas at 936-435-1908, or in Sugar Land or Stafford at 281-723-2791.

Oftentimes clients who have family real estate interests want to give each of their children an interest in real property. However, this does not happen nearly as often as clients who visit their attorney asking how in the world they can sell (or build on) a property when they own only a 1/32 share! Think about it. More often that not, heirs often do not even know the other owners. This (nightmare) scenario is usually created when several owners in succession die without a will.

Consequently, you can imagine how I wince when someone is responsible enough to make a will, but then tells me that their parents left them a 1/4 interest in the parents’ home, and they want to give each of their three children an interest. This is the very type of nightmare that writing a will was meant to avoid. If you want to leave a property in such a manner that all your children and grandchildren can use it, call my office at 936-435-1908 to schedule an appointment. It can be done, but all considerations must be evaluated prior to the drafting of documents.

Lets say that Mike and Carol buy some acreage with a cabin as a vacation home. The family loves it because the scenery is beautiful, they can keep horses on the property–and it is just a three hour drive from their home. Mike and Carol envision their grandchildren and greatgrandchildren coming out to the property, riding horses, spending time together, and thinking fondly of their grandparents and great grandparents. So Mike and Carol leave the property in equal shares to their six children. After Mike and Carol’s death, the children do use the property for a while. However, some major foundation repair is necessary, and noone is willing to pay the cost to have it done. Greg offers to pay a sixth, but Peter and Jan will not participate, and noone is willing to pay “their share”. Greg has been caring for the horses and cutting the underbrush, but he becomes ill, and noone else lives close enough to take over these regular tasks. Marsha discovers that they can sell some of the pine trees on the acreage and make enough money to make the repairs, and pay for someone to do some regular maintainance, but the timber company needs the signatures of all the owners. Bobby is dead, and his wife hates the family, and will not cooperate. After a while, Bobby’s son moves on to the property full time. He is, after all, a 1/24th owner, and this saves him the cost of rent, or a mortgage. Bobby Jr, is a habitual drug user who uses terrible language. Noone wants to go on the property while he is there, and noone can get rid of him. Meanwhile, the area where the cabin is located is becoming increasingly developed. It may not be worth much as a vacation home, but it is very valualbe as commercial property. Marsha would like to sell the property, and buy a new vacation property that would be closer to the family, and more suitable. The problem is, four of the original six children are dead. The property is owned by grandchildren, great grandchildren and relatives of spouses. Marsha can only sell the property by first filing a partition action, and serving each of the 24 owners.

You probably think that I am exaggerating for effect. No, no, no! In one week, I had two different clients with properties every bit as fractured. Lawyers do not need work this badly! So avoid dividing real estate among a group of owners unless you know what the end result will look like. Let’s look at how Mike and Carol could have done it, if they had been willing to listen to their attorney.

Mike and Carol create a Brady Vacation Trust. The trust owns the property. Greg, who is the most responsible, is appointed trustee. He is given the authority to manage the property, make repairs, and request contributions. He also has the authority to restrict the use of the property by the descendants, and to terminate the ability of someone to use the property if they refuse to participate in the upkeep. Fortunately, Greg has the authority to sell the lumber, so he does not even need to ask for much upkeep. When the character of the area changes, Greg has the ability to sell the land, and buy new land which will serve the same purpose. The trust allows a majority of the survivng siblings to appoint a successor trustee. If Mike and Carol want, they can put all kinds of requirements in there, like Greg cannot sell the property if one of the orignial six siblings wants to use it, or the property can be sold anytime a majority of the users want to sell it. The point is, as a lawyer, I can make almost anything Mike and Carol want to happen with the property, happen, and I can do it without fracturing the ownership. If you would like to discuss in more detail the best way to leave real estate, please contact my office at 936-435-1908, or at 281-723-2791 for Sugar Land or Stafford residents.

Oftentimes clients want to make two or more of their children co-executors. Usually, this is done to avoid the appearance of picking a favorite. Unfortunately, it is almost always a bad idea to name co-executors over a probate estate . Contrary to intuition: If there are any latent bad feelings between siblings, being appointed co-executors is the best way to drag those feelings to the surface (or if there are none, then creating a co-executorship is the best way to create ill will).

But one example of this involves the sale of real estate. Even if the will specifies that the land is to be sold, siblings could easily come to different opinions about what a reasonable selling price is, or whether to sell the property as is, or to make improvements first. If one of the siblings is appointed executor, the other may disagree, but, in most cases, they will defer to the executor. If, however, they have been appointed together, each may feel an obligation to mom or dad, to make sure the highest value possible is received. Each of them may speak to different realtors, or look at other sales comparables, and what began as simply an underlying feeling of “that doesn’t seem quite right, but what do I know”, becomes instead an opinion which is the only and obvious solution.

Other common issues that can cause friction even between well-meaning siblings is how soon to probate the will. Some children feel greedy if they start going over bank accounts too soon after a parents death, and others feel a comfort in following through with formalities and promptly dealing with the last task their parents assigned them. If only one child were appointed, the personal preference of the other may raise the eyebrows of the other, but is unlikely to be a source of lasting friction. If, however, the children are dependent on the agreement of each other before any steps can be taken, this can become a source of deep resentment. In other words, what may seem innocuous outside of probate, suddenly becomes the subject of the suspicion and conflict during probate.

On the other hand, it is often surprising how angry a co-executor can become when they feel like the other executor is leaving them to do all the work by themselves (or worse, going behind their back). The Keatings know that Alex is much more likely to be the child to follow through with hiring a lawyer, setting a court hearing, and taking an inventory of their property, but they don’t want the more emotional Mallory to feel left out. So they appoint Alex and Mallory as co- executors. However, as the parents could have guessed, Alex is the one who ends up actually doing the work. If he would have been appointed executor, he would have felt that his parents recognized him as being more responsible. Mallory would most likely have realized that her parents wanted to spare her details which would have made her uncomfortable to deal with. As co-executors, Alex feels Mallory is simply not carrying her share of the burden. After all, just because he is practical, doesn’t mean it is less pleasant for him to sort through their memories and belongings. What could have been an honor for Alex, becomes a burden, and a source of friction.

Sometimes I have clients who are considering appointing co-executors because they know there are bad feelings between their children. Peggy and Al know that even though Bud is the best person to be executor, Kelly will not trust anything that Bud does. In a case like this, the best thing to do is carefully consider if Kelly would be right to be suspicious. If in fact, Bud cannot be trusted, the parents may want to rethink naming him as executor. Nevertheless, if they feel they must name him as executor, they may want to discuss with their attorney whether he should be required to post a bond, or even oversee a dependent administration. If Kelly’s bad feelings are unjustified, and Bud is, in fact, trustworthy, Peggy and Al should probably question whether being a co-executor would really make Kelly more secure, or whether it would just be creating a nightmare situation for each of them.

In most cases, parents should simply name the child most likely to be a good executor. And children who are hurt that someone else was named as executor should know that I have had more than one client who had a clear favorite among his children, and yet named a different child to be executor.

Want to learn more about probate bonds? Contact the Woodlands probate attorney who has experience in assisting clients in obtaining a probate bond.

What is a probate bond , and when would I need one?

A probate bond is a bond issued on the performance of an administrator or executor, and its purpose is to protect heirs and creditors from being harmed by the negligence or malfeasance of the administrator or executor.

For instance, if “John” is the executor of his father’s estate, and, instead of paying the doctor bills and splitting his inheritance with his brother he makes off with everything his father owned, his brother and the doctors can recover the amounts they would have been entitled to from the bonding company. Sounds good, right? The only problem is that obtaining the bond can be a costly stumbling block for potential executors or administrators. (An executor means there is a will, otherwise you have an administrator).

I have seen more than one case where the administrator or executor was simply unable to obtain a bond. Why wouldn’t you be able to get a bond? Well, applying for a bond is much like applying for a signature loan. If you need a $500,000 bond, but recently got turned down for a $250,000 house loan, you are probably not going to have much luck. Another reason you may not be able to get a bond is the cost of it. If the Judge has ordered a probate bond, you are not going to have access to the funds of the estate until AFTER the bond has been issued. The bond cannot be issued until after it has been paid for. Of course, if paying for the bond is a real issue, you probably wouldn’t be able to qualify for one anyway. In addition, the bond must be renewed, and new premiums are paid every year, meaning that the executor or administrator frequently feels pressure to wrap things up as quickly as possible. Also, even if you qualify for a probate bond, getting one often takes some time. Again, compare it to taking out a loan.

For all the reasons listed above, most attorney-drafted wills waive the requirement of a bond. If the will states that there is no bond required, and the named executor is the one submitting the will to probate, there will be no bond required. But what if a) there is no will; b) the named executor is not the one probating the will; or c) the will does not waive bond? Then whether or not you will be required to post a bond depends on three things:

• the agreement of all of the heirs,
• the existence of debts,
• and the Judge you are in front of.

If all of the heirs agree to waive the bond, and there are no unsecured debts of the estate, the Court will agree to waive the bond. If all of the heirs are in agreement, and there are unsecured debts of the estate, I have never had a Harris County Judge order a bond, and I have never had a Montgomery County Judge not order a bond.

I recently debated the issue of the bond with Judge Winfree, of Montgomery County (now retired) at great length, and he succeeded in convincing me that the legislature assumed there would be a bond required anytime there were debts, but he did not succeed in convincing me that it is a requirement of the Probate Code. But he doesn’t have to convince me, I have to convince him, and I, like every other probate attorney practicing in Montgomery county, failed to convince him. He did agree that if the creditors would waive the bond, then he would as well. I got the agreement of the creditors and, in a very minute way, made a bit of history by securing the very first waiver of an administrator’s bond in Montgomery county where the estate has substancial unsecured debts.

If you don’t have the agreement of all the heirs, and the will does not waive a bond, or the named executor is not the one probating the will, any judge will require a bond. The amount o the bond is based on either the value of the esate, or if the heris are in agreement, the amount of unsecured debt.

As part of the Proceeding to Determine Heirship, the courts will invariably appoint an Attorney Ad Litem to represent any heirs that the applicant may have either forgetten, defrauded, or perhaps simply doesn’t know about. The Ad Litem’s fees are usually between $400 and $1500, but vary greatly depending on the attorney appointed, and the amount of work which the attorney is required to perform. Many people who are forced to do a proceeding to determine heirship feel the appointment of the Ad Litem simply makes the proceeding take more time and money.

The feeling a widow might express is: “I’ve told the Court who my husband’s heirs are. No one is left out, so exactly for what am I paying this extra lawyer?” This sentiment is undertandable. If you have a single, long-standing marriage, with no extra-marital children, then the family situation is should be straightforward. A competent Ad Litem will usually review pleadings, speak with family members, and the individuals who may be used as witnesses, and verify that the witnesses knew the decedent well, and he never had any children other than those listed in the application. The Ad Litem may also verify that no one ever heard the decedent mention having a will made, and that he never took any other children into the home and treated them as his own. Some Ad Litems have asked my clients to provide death and birth and marriage certificates as well. The Ad Litem files an answer and a request for fees, and attends the hearing, usually asking the witnesses most of the same questions I have just asked them.

So if an Ad Litem is bringing out essentially the same information that the applicant has already provided, why do we need him? Because applicants may have an incentive to lie. Or, at least, an incentive not to be too curious. Let’s say that a deceased husband had been married before, but never really talked about it. Now he has died without a will. The widow gets her two witnesses and files her application for administration. However, when the Ad Litem is appointed, the Ad Litem realizes that neither of the witnesses knew the husband during his first marriage. So the Ad Litem contacts the ex-wife. It turns out there was a child born during the marriage. Suddenly there is another heir. Unfortunately, many situations can become far more comlicated. Not only is divorce becoming quite common, but so has the number of children born outside of wedlock. Somethimes the Ad Litem has a real job to do.

When someone has a child after writing a will, such child is known as a “pretermitted child.” Texas has complicated provisions for what a pretermitted child inherits where there is no provision made for them in the will. Sometimes these provisions act in a manner that may seem unlike what many testators would have actually wanted. Moreover, if the probate estate is taxable, then the statute will almost always change the estate plan in a manner to make it less effective. For these reasons, attorneys are taught to contemplate what should happen to a pretermitted child. Often, the best way to do this is so obvious, there is no need to really discuss it with the client. For instance, if a couple have three children, they want all their property to go to each other when the first spouse dies, and then to be split among their children. Among the “boilerplate” language that most people skim through, there will be a provision inserted by the attorney that states that “my children”, shall include all children born to or adopted by the testator. However, where my client is splitting his property among groups of people, such as between his children and his wife, or between the children of two marriages, or between children and other family members, I always ask them how they would want to treat a child born after the will is written. Some clients simply answer the question, some laugh, as they consider themselves too old to have children, but are willing to concede adoption may be a possibility, however remote. However, I have had some people, able to have children, who are adamant that, as no additional children are planned, no mention of additional children should be put in the will. I have had this opinion stated so forcefully that the client was unwilling to listen to my explanation of why the issue should be addressed. In that case, of course, I do what my client wants. However, here are a few possible examples of what can happen when the will makes no provision for a pretermitted child.

Claude has a disabled brother for whom he is a caregiver. When he writes his last will and testament, he gives his brother a home, and a generous trust to take care of him during his lifetime. He gives everything else to his wife. Claude is 65, and laughs at the idea of having children. His 45 year old wife becomes pregnant, and before Claude gets around to asking his lawyer how this will affect his estate plan, he dies. The child now inherits everything Claude intended to give his brother. The gift to the wife is unchanged. Seemsly unlikely, right? But this scenario has already happened.

Cynthia is not on good terms with her three children. She leaves them a $10,000 CD to be divided among them, and the rest of the property goes to her sister. However, she then adopts her abandoned grandchild, but neglects to rewrite her will. In this very common scenario when she dies, the adopted child receives 1/4 of the $10,000 CD, or $2,500. The sister gets everything else.

Roberto has one child from a previous marriage, and wants his will to divide his property equally between his child and his wife. He realizes that he and his wife could also have children, but he is adamant that they will not. He has already raised his family. His wife is strangely silent during the interview. When Roberto dies, his wife is pregnant with twins. The half of the property Roberto intended for his child from his first marrigage is divided into thirds. The first child now gets 1/6 of his property, the twins each also get 1/6, and Roberto’s wife’s one half goes to her unchanged.

As you can see, a great deal of harm can come from not addressing the possibility of a child born or adopted after the will is written, and there is no possible harm from addressing what should be inherited by such a child, even if the client is right, and there are no children born or adopted after the will is written. I have never heard of a lawyer who charged extra for putting in a pretermitted child clause, and even the most suspicous people will usually admit that addressing the possiblity of a future child does not make the future child more likely to appear.

If you would like to review your will to determine if it needs to be updated with a pretermitted child clause, please contact my office at 936-435-1908 or 281-723-2791 to schedule an appointment.