Monthly Archives: June 2014

Texas’ court appointment of guardianship may be ready for change

Guardianships

Sometimes the best intentions start out to be noble, but then somehow they get twisted and turn out doing more harm than good. That’s what advocates that are pushing for reform of the Adult Guardianship System in Texas have discovered. The program allows the state to have a guardian appointed for elder individuals who find themselves a ward of the state because they are unable to care for themselves.

One advocate is using what happened to a friend as an example of how the program may sometimes do more harm than good. Her friend, who was an 85-year-old woman, found herself an unwilling ward of the state after she passed out in a restaurant. After being taken to the hospital, it was determined that she was unable to care for herself. She was forced, against her will, to go into a nursing home and was given a legal guardian by the court. Then her home and possessions were put up for sale — no doubt a decision she would not have made, and may not have even known about. The woman died shortly thereafter. Friends and family are thinking that the guardianship did her more harm than good.

In Texas, there are about 46,000 individuals who have guardians assigned to them. More than 4,500 petitions for adult guardianship were filed between Sept. 2011 and Aug. 2012. Advocates are hoping to decrease these numbers, making guardianship a last option for elderly people. They are in favor of supported decision-making for the elderly as long as they can still make some decisions for themselves.

Like the 85-year-old woman, there are others who have had to fight to get their rights back after being put under guardianship. It will take an attorney, but they can fight to regain their independence.

The best option, however, is for people to plan their own guardianship before they become completely unable to care for themselves. By creating a will, a person can choose someone they trust to carry out their desires and intentions. This way, there is no possibility of a stranger making decisions for them that may not be in their best interests.

Source: National Association to Stop Guardian Abuse, “Advocates Push for Reform of Adult Guardianship System in Texas” No author given, Jun. 26, 2014

Internet makes life easier, but can impede estate administration

Estate Planning

Texas residents are using Internet resources for more and more each day. Banking, investment accounts, correspondence and storing photographs are just a few tasks that many now do through online access. However, this might hinder their heirs or beneficiaries in handling estate planning or trust administration. Refused access to password-protected information might be a real problem.

Most people are aware that different sites have different terms and conditions when it comes to access. Reportedly, Google has a specific setting that applies to a deceased or disabled user. It can be preset to allow a successor to use the account. Preventing probate delays or the necessity for a court ruling in some cases can be successful with thoughtful preparation of an estate plan.

Experts suggest including digital assets in your will or trust as you would add in your physical assets. A will and power of attorney can specifically address these digital accounts, allowing for easier asset valuation and distribution when you are gone. A trustworthy person needs access to your secure user and password list. Software applications exist to provide encryption and helpful password management for all your devices and websites. Your executor or attorney-in-fact might be the right person to trust with this task.

An example of problems accessing digital assets after a loved one is gone involves a 20-year-old marine who was killed in 2004 while serving overseas. His family had the difficult job of estate probate and settling his affairs. Because his email provider refused access to the father, a drawn-out court case ensued. Eventually the provider turned over a transcript of the account. Some states, including Oklahoma, are fine-tuning laws to help clarify and make fair these processes.

Including a plan to avoid difficulties should something happen to you will help protect your digital estate. A good way to start is with an experienced evaluation of your present online life. A sound plan can follow. A Texas estate planning attorney can advise you on how to protect these digital assets while allowing the people you choose to access them after your death without having to jump through hoops.

Source: The Evening Sun, “Financial Consulate: The crucial importance of creating a Digital Estate Plan” Ryan Fox, Jun. 13, 2014

Texas spouse sues ex-husband over fraud by nondisclosure

Foreclosure

A woman is filing a civil lawsuit in the Texas courts against her former husband, stating he hid facts during their divorce that caused an unequal division of property.

According to reports, the couple had been married for three years, were both living in the house, and during that time, the husband maintained the property was in foreclosure. Thus, the home was not included in the division of assets and property.

The wife maintains the husband had continued to live in the home as late as last year, and she disputed the allegation that it was in the foreclosure process. The suit alleges that the division of property was not completed correctly at the time of the divorce. The plaintiff is asking the home be sold immediately and profits divided equally between the two parties.

The wife’s charges include breach of contract, breach of fiduciary duty, fraud by nondisclosure and common-law fraud. The plaintiff is also requesting a temporary restraining order and demanding the defendant assume responsibility for all court costs and damages.

With much of the country suffering the loss of their homes following the recent recession, there have been numerous victims of the mortgage crisis. Losing one’s home and going through a dissolution of marriage are two serious life-changing events.

If you have been involved in the loss of your home along with fraudulent concealment of assets by an ex-spouse, you have the right to speak to someone who can provide wisdom and experience in representing the complications of asset division involving foreclosure. Find someone who can provide sound and results-based information to help guide you through the trauma of loss of your relationship and your dwelling.

Source: Southeast Texas Journal, “Woman demands ex-husband sell home” Matt Russell, Jun. 12, 2014

Many documents are essential for a good estate plan

Heirs & Beneficiaries

Many Texans know that having an estate plan in place is important for protecting their assets and making sure their finances are handled according to their wishes. To many, estate planning simply means drafting a will. While this is certainly an important part of a plan, there are many more documents that should be considered as well. Even if your estate planning is very thorough, it’s important to keep your documents up-to-date, especially after big life changes such as a new child, marriage or divorce.

Aside from a will, some of the most important documents to consider preparing include a power of attorney, a health care proxy and a revocable living trust. A revocable living trust in particular can expedite your property’s transition process after death as well as making sure that your assets are managed correctly should you become incapacitated. These types of trusts also allow for greater privacy than a will.

Being incapacitated can cause just as much mayhem for a family as passing away if a solid estate plan is not in place. With life expectancies continuing to rise, incapacitation is becoming increasingly more likely before death. This is where powers of attorney come in. A durable power of attorney grants a specific person permission to make financial decisions on your behalf. Similarly, a health care power of attorney, or health care proxy, can be established to make medical decisions for you if you are no longer able to.

Once documents like these are in place, they cannot simply be forgotten. Over time, different circumstances might lead you to desire a change in your will’s beneficiaries or an adjustment in the trusts you’ve set up for your children. You might also wish to change the person you’ve established as a power of attorney. Changes in tax laws can also necessitate a review of your estate planning documents. On the whole, Texas residents who want to prevent family chaos after their death should consider the various estate planning strategies as soon as possible and then review them consistently.

Source: MainStreet, “Estate Plan Overhaul: Time to Shape Up Your Strategy” Bruce W. Fraser, Jun. 10, 2014

Community property survivorship in Texas

Heirs & Beneficiaries

Historically in Texas, surviving spouses only received half of community property assets. The other half would go into probate to be divided according to state law. After numerous attempts to change the law, a 1987 legislation that amended the state constitution finally passed. The legislation modified estate law, providing spouses with more control over distribution of assets when it comes to community property.

The law provides spouses an opportunity to enter into a Community Property Survivorship Agreement. The agreement lets spouses indicate that any portion of the community property goes to a surviving spouse — including a designation of 100 percent of the property, if so chosen.

The Community Property Survivorship Agreement doesn’t cover all property. For example, if a wife inherits a home from her sister, the property belongs to her as an individual. In order to leave the home to her husband in the event of death, she would have to make it community property or transfer it to him in a trust or will.

Estate planning documents should also be used if a spouse doesn’t want 100 percent of assets to go to a surviving spouse. For example, if a couple has a bank account considered community property, half of the assets in that account belong to the husband and half to the wife. The husband may want his half split between all heirs — including his wife and children — if he dies. In this case, a trust or will can ensure his wishes are carried out despite the community property arrangements.

In Texas, as in any state, estate planning can be a complex affair. You don’t have to be wealthy to have an interest in protecting the future of those you love. Planning ahead can reduce stress and duress for your family.

Source: My San Antonio, “When to Avoid using Community Property Survivorship” Paul Premack, Jun. 04, 2014

In Texas probate court, bonds a clear-cut arrangement

Estate Administration

It is a common misconception that bonds are not needed in personal representation of the estate of another. Even if a will does not specify a probate bond, the Texas court may rule that you need to complete a bond.

A bond represents an agreement similar to a promissory note. In the legal world, it translates into protection of estate funds. The courts prefer it when there is a written commitment of one’s fiduciary duty regarding the estate of another. A court-appointed authority makes a judge uneasy, as there is little control over the actions of another. Even legal representatives have been known to act inappropriately, so the presence of a bond implies protection.

A bond represents an arrangement in which a borrower’s obligations are clearly delineated, and therefore, calls for better and more effective accountability. It allows for what happens if the personal representative violates their fiduciary duties.

The courts may ask for an added layer of security by requiring a bond with sureties. This requires the personal representative to exert extra care in the reliability of his or her performance. While a judge may feel safer by an added obligation of protection, there may also be increased access to other resources in case a recovery is required. Sureties, in this case, act like a co-signer, who takes on the debt should it default.

In cases like this, a corporation can provide services on a bond for a charge. Additional individuals with considerable assets can also cover the estate’s value, thus representing sureties for a bond. Both instances vouch for a personal choice of a representative and take on the added accountability for their performance.

In some cases, relatives or family members leave wills attempting to gloss over the necessity of a bond. However, the next best option is to obtain a waiver of a bond’s sureties.

Real estate law, bonds, wills, estate administration and probate issues in the state of Texas are complex matters, not for the faint of heart. Especially when emotions and family enter the mix, you need the trusted services of legal professional who will participate actively in protecting your best interests and those of your family. Do not wait until the court steps in to make an unsavory ruling. Make sure your will and probate plans are ironclad for you and your family to avoid problems later.

Source:The Lowell Sun, “Probate bond is always needed” James Haroutunian, May. 30, 2014