Requirement 1: You must be able to win something.

Let’s say a rich neighbor of yours dies and leaves behind a Will. Can you go to court and challenge it? Unless you stand to gain something from a court declaring the Will invalid, the answer is no. Essentially, you will have to be able to win something if you prevail in your Will challenge to be able to challenge a Will in the first place. This means that you would have to inherit more property if either there was no Will, or if the court agrees to adopt a previously written Will.

Requirements 2: You must have a specific reason.

Even if you stand to inherit something if you can show the Will is bad, you have to have some sort of factual basis to make your challenge. This is known as having “grounds.” The legal grounds to challenge a will vary depending on your state and the circumstances, but they all essentially boil down to you proving that the person making the will failed to meet the state’s legal requirements for will creation.

Requirement 3: You have to go to court at the right time.

You must ensure that you file the challenge at the right time, even though the right time can differ between states and depending on the circumstances of the case. In general, you must wait until the testator–the person who wrote the Will–dies in order to file a Will challenge. After that, you must file your challenge before the deadline imposed by state law.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.

Though Brooke Astor died in 2007, the battle over her estate has only recently been settled in a New York State probate court. Ms. Astor was a philanthropist and a descendent of America’s first multi-millionaire, John Jacob Astor. The settlement leaves her only son, Anthony D. Marshall, with an inheritance that has been slashed in half and without any control over her estate’s charitable contributions.

Ms. Astor left behind an estate worth about $100 million. Mr. Marshall will receive an inheritance of $14.5 million, which is only half of his original inheritance of $31 million. The rest of the funds will go towards establishing the Brooke Astor Fund for New York City Education, as well as to other charities such as city playgrounds, Prospect Park, and Central Park.

Shortly before her death, it was revealed that Mr. Marshall had engaged in elder abuse by stealing from his mother as he served as her guardian. Currently 87, Mr. Marshall was convicted three years ago of stealing from Ms. Astor, though he is appealing that conviction. Mr. Marshall, along with attorney Francis X. Morrissey Jr., were sentenced to one to three years in prison for defrauding and stealing from Ms. Astor as she was suffering from dementia in her final years. However, the settlement reached in the probate court will be binding regardless of the outcome of that criminal appeal.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.

Last July, singer Amy Winehouse died of alcohol poisoning at the age of 27. At the time, early reports stated that she had left behind a last Will and testament and had either left everything to her former husband or had updated the Will and not left him anything.

However, newly released probate records show that Ms. Winehouse did not leave behind a Will and had died intestate. The documents show that she had a probate estate worth about $6.7 million, though that total was reduced to about $4.6 million after debts and estate taxes were taken into consideration.

While Ms. Winehouse died in England, the laws of the United Kingdom are very similar to those in the United States when it comes to intestate estates. Because Ms. Winehouse left behind no children and died unmarried, her entire estate will pass to her parents.

However, the probate assets may not represent her entire estate. Just like in the United States, the United Kingdom’s probate process only applies to those assets she left behind that were owned by her individually. If she left behind joint assets, assets that allowed her to name a beneficiary, or had a trust, those assets would pass outside of probate and would not be included in the court documents nor in the calculation of her estimated net worth.

Also like in the United States, her ex-husband is not entitled to receive any of her property because she died intestate. If she had left behind a Will and named her ex as a beneficiary, or if they had remained married, he would be entitled to receive at least part of her estate.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.

Tip 1: If your property changes, so should your plan.

When you first create your estate plan, you do so with the knowledge that your property may change over the years. You may, for example, leave your children an equal portion of your estate. However, any significant increase or decrease in property, or the acquisition of real estate property in different states, should prompt you to make changes to your plan. Also, if your estate was not large enough to be subject to estate taxes but has since grown, you’ll probably need to make significant changes to address the estate tax concerns.

Tip 2: If your family changes, so should your plan.

The birth of a child or grandchild, a divorce, remarriage or any significant change in family circumstances should also prompt you to change your estate plan. This is especially important if you become a parent or guardian of a minor child and your previous estate plan made no provision for appointing a replacement guardian.

Tip 3: If time passes, you need to review your plan.

Even if you don’t experience significant life changes, it’s important to regularly review your estate plan. A good rule of thumb is to review it on at least a yearly basis, though sometimes every other year may be appropriate. This is important because even though your life and desires may remain the same, the laws that affect estate planning are constantly changing and you may need to adjust your plan to take these new changes into consideration.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.

Last week, representatives of Whitney Houston filed her last Will and testament in an Atlanta courthouse, formally beginning the probate process that will result in the redistribution of Ms. Houston’s possessions to her inheritors. Though the particular details of her will or not rather surprising, there are several issues present that you can use to learn about your own Will and what options you have when making it.

• Testamentary Trust. In the Will, Ms. Houston leaves her entire estate to her 19-year-old daughter, Bobbi Kristina Brown. The Will dictates that the inheritance will be given to the daughter when she reaches the age of 21, 25 and 30. This will be accomplished with the creation of a trust that will manage the money on behalf of Ms. Brown. Because the trust is created through Ms. Houston’s Will, it is known as a testamentary trust. If Ms. Houston had created the trust while she was still alive, it would be known as a living trust, or an inter vivos trust.

• Codicils. Ms. Houston originally created her last Will and testament in 1993. However, she changed some of the terms of her will in 2000 and 2004. The terms she changed was who she named as the executor of her estate and who would serve as a trustee of the testamentary trust for her daughter. She changed these terms by creating a will amendment known as a codicil. Though a codicil itself is usually much shorter than the original Will, it must still comply with the same creation requirements as the will document, but other than that you can use it to change any terms you wish.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.

Currently in its second season, Downton abbey is a PBS drama series that follows an aristocratic family during the earlier parts of the 20^th century. Originally aired on British television station ITV, the series has attracted a loyal fan base here in the United States. For those who are not familiar with the show, it follows the family residents of Downton Abbey and the conflicts that arise after to heir to the family title and estate dies on the Titanic. As it follows the family through the years, the show progresses through the first world war and after.

For American audiences, the intricacies of the hereditary title system in early 20^th century England may seem rather removed from the realities of modern life. However, we can gain some insight into our own inheritance system by watching Downton Abbey. In the show, many of the story lines revolve around who will inherit the family fortune and titles once the current Lord Grantham dies. The main conflict is between the Lord’s eldest daughter and a relatively unknown cousin and determining who stands to inherit.

In Texas, inheritance questions are rarely this complicated. Our state has laws that choose for you who inherits your estate. These laws, known as intestacy laws, usually divide your estate between your spouse and your children. If you have no spouse or children, your next closest relatives stand to inherit. Of course, you can choose to ignore these rules completely by creating a Will or a Revocable Living Trust, but then again, that may also preclude the possibility of having your own Downton Abbey drama.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.

If you’ve made the decision to create a will, you owe it to yourself to take the time to do it correctly. Before you put a single word on paper, you should think about these three common areas that can potentially cause problems down the road.

Mistake 1: No Comprehensive Review. Your will should cover everything you own, so it’s important to take the time and create a comprehensive review of all your assets before you create the document. Failing to do so and to specifically address all your assets could mean your property doesn’t go to whom you wish it to receive.

Mistake 2: Not Asking Your Executor. Though not legally required for your will to be valid, your will should name who you want to serve as your executor. In fact, it should probably name at least two people, in case the first choice isn’t able or willing to serve. However, you shouldn’t presume that your choice for executor wants the responsibility. Always ask before you pick your executor, and make sure your executor knows when you create your will.

Mistake 3: Not Appointing a Guardian. If you’re a parent with minor children, choosing a guardian is a key step in making a will. Just like your executor, you are not legally required to choose a guardian for you children, but you should pick at least one and ask the person’s permission before doing so. A guardianship is a significant responsibility, so choose wisely.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.

While estate planning is a powerful and essential planning tool, only some choose to utilize it during their lifetime.  With a plan in place, it’s possible to be prepared for the future.  It’s important to understand how your affairs will be handled after your death, whether you have a plan in place, or not.  Take a look at the following information, to better understand what will happen after your death.

What Happens When You Die Without a Will or Without Any Planning in Place

Unfortunately, many people choose never to plan, and they die without a will.  If you die without a will, this means that you will have no control in how your affairs are handled.

Without a will in place, state laws determine how assets are distributed to beneficiaries, and the probate court is responsible for making other important decisions.

For example, the probate court will choose a representative to handle your estate affairs.  This “administrator” locates, manages, and distributes your assets, and handles your estate’s financial affairs.

In addition, the probate court will also choose a guardian for your minor children.  This means that you will not choose who raises your children.

Plus, your assets will be distributed based on your state’s intestacy laws.  Depending on the size of your estate, your heirs may have to prove in court with witness testimony who is entitled to inherit from your estate.  This process can take several months or years, but at its completion, your estate will be settled.

What Happens When You Die With a Will

If you choose to create a will, you will have control over what happens after you die.  Your will is used to guide the probate court and your executor in how to settle your estate.

Your executor will need to find your will, and present it to the probate court.  He or she will also have to find and locate assets and notify beneficiaries that probate has begun.

Once your will is validated, it’s used to appoint a guardian for your children and to determine how your assets are distributed.  Even with a will, this process can take several months or years.  At completion of the entire process, your estate will be settled.

If you have any questions about your own estate planning affairs, consult with a qualified estate planning attorney.  Please checkout part 2 of Estate Planning:  What Happens After Death.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.

Every adult needs a will to distribute assets, appoint guardians for minor children, and appoint an executor to probate the estate.  Wills don’t always work, but when they do, this is what it looks like:

Jeremy and Mia were just 25 when they got married.  Though they were just starting out and didn’t have much money, they realized that they needed an estate plan in case of emergency.

Sadly, Jeremy found the stress of working in the corporate world too much and he began drinking heavily.  He refused to get help for his drinking which had resulted in uncontrollable alcoholism.  The couple separated; and, were divorced about a year later.

When the couple separated, Mia updated her estate plan which included a new will and a trust.  She used the will to distribute her assets to her trust, name her brother, Ben, as guardian for her unborn child, and appoint her sister, Elizabeth, as executor.

Mia was killed by a drunk driver on her way to a well child check up for her now 2 year old daughter, Alicia.  Alicia was not injured

Jeremy sought custody of Alicia and sought to serve as executor of Mia’s estate.

The judge honored Mia’s wishes of having Ben serve as guardian after considering evidence of Jeremy’s alcoholism and lack of interest in Alicia to date.  Elizabeth was appointed executor.

Mia’s will did what she wanted it to do.  It worked.  Brother, Ben, was named as guardian.  Alcoholic, Jeremy, was not named as guardian.  Sister, Elizabeth, was appointed executor of Mia’s estate.  Again, Jeremy was not.  And, all of Mia’s assets that were not yet in her trust were poured into her trust.

A well thought out will is essential and works in conjunction with other important estate planning documents such as a revocable living trust, powers of attorney for finances and health care, living will, HIPAA release, and organ donation authorization.

John R. Vermillion & Associates, LLC is a member of the American Academy of Estate Planning Attorneys.