What happens when your elderly parents become unable to handle their affairs — or you have an adult child who is mentally, physically or intellectually impaired? Who can legally handle his or her affairs?
This may be the time when a guardian needs to be appointed for your loved one. To be a guardian of another person’s affairs, such as finances or medical care, one must be appointed by a court of law. An application must be filed with the court, and then a judge will hear the case. If the court agrees, it will appoint a guardian. The person who the guardian is appointed for then becomes a ward of the court.
Guardians have authority to perform certain functions and decision-making for the ward, but only those that are authorized by the court. Family members are often assigned as guardians of loved ones, with the assumption that they would have their ward’s best interests in mind.
What are the advantages of having a guardian for an elderly parent? Guardians may be able to pay bills for their wards and make financial decisions about their assets. They may also make decisions regarding medical treatment in the event the ward is unable to. The guardian can help to protect an elderly person from being taken advantage of or exploited. Finally, the guardian is accountable to the court and must submit accounting reports annually.
Are there reasons you may not want to have a guardian appointed for your loved one? Sometimes, a loved one’s welfare is taken away from family members in the event the court awards guardianship to someone outside the family. Wards may lose some of their basic rights to make their own decisions. Establishing a guardianship and maintaining court-required records may be expensive.
An attorney can help establish the details in a guardianship request depending on the needs of the potential ward. If you find that your elderly parent is making bad decisions or in danger of being exploited, seeking advice before it is too late is recommended.
Source: Texas Department of Aging and Disability Services, “A Texas Guide to Adult Guardianship” Oct. 30, 2014
Financial challenges happen for everyone from time to time, and errors occur in keeping bills or posting payments to accounts. Most people would like to think that simply missing a single mortgage payment — for whatever reason — will not cause a default or the start of foreclosure proceedings. According to information published by the City of El Paso, that may not be the case.
When a bank can institute foreclosure proceedings depends on the language including in the lien note that was signed when you originally purchased or financed the home. With the exception of specialty loans insured by the VA or FHA, most loan documents provide the bank with the ability to begin foreclosure proceedings after the homeowner defaults on the loan by missing a single payment.
The City of El Paso does point out that most lenders don’t initiate foreclosures immediately upon a first payment missed. Mail can be lost, homeowners can run a few days late, and people can simply forget to make a payment due to stresses and a busy life. In most cases, banks make an effort to reach out to homeowners to bring accounts current before going through with default paperwork. If efforts to bring the account current are not answered by the homeowner, then a lender will usually begin foreclosure proceedings.
The exception to this rule is FHA- or VA-backed loans. In these cases, foreclosure proceedings cannot begin until a homeowner is three or more payments past due.
Getting behind on mortgage payments can be a frightening experience, and it’s a quick slope from missing a first payment to the beginning of foreclosure proceedings. Because mortgages often account for a large expense, it’s more difficult to catch up after missing one or two payments. Understanding legal options for dealing with foreclosures is one way people can fight to keep their homes in such situations.
Source: The City of El Paso, “Foreclosure Under Deed of Trust” Oct. 24, 2014
When individuals in Texas think of estate planning, they likely consider things such as bank accounts and family heirlooms. One of the biggest assets in any estate is land or real estate, but without proper planning, such properties can become more of a liability to heirs down the road.
One thing to consider when you own property of any type is land use and zoning. Ensuring your real estate is in order now not only saves you future hassle, but it also protects your heirs against zoning or legal troubles once they inherit the land or property.
Our land use and zoning page discusses some of the things that are important when dealing with a range of property types, especially when courts or legal documents are involved. A major step that all property owners should take is achieving an official address. Getting an address involves inspection and certification.
If your property involves a waterway, you may have a bridge constructed over the water to achieve efficient access to all areas of the property. Bridges and country roads on your property may need to be certified through the El Paso County Public Works Department; likewise, other property issues may end up before the El Paso City Development Department. Ignoring any of these issues may put parts of your estate at risk or cause the legal issues to be passed on to your heirs.
If property is a large part of your estate, it’s important to consider real estate related concerns with planning for the future. Someone experienced in both estate and real estate law can assist you in getting assets in order for the benefit of your own future as well as your heirs.
For years, John Wayne ruled the windswept west of the silver screen, earning the nickname “Duke” from coworkers and fans. Even today, mention of the Duke still brings the rugged visage and slow drawl of the cowboy actor to mind for many in Texas and across the country. The Duke’s brand isn’t binding, though, since golden-age actors weren’t in the habit of trademarking every phrase that came their way.
Today, John Wayne’s heirs are fighting to keep the moniker in the family, but they are running up against opposition from Duke University. According to reports, Wayne Enterprises has ventured into legal skirmishes with the university since 2005. The latest court-related battle had to do with the Wayne’s heirs desire to use the Duke moniker to market alcoholic beverages such as bourbon.
The university’s argument against Wayne Enterprises using the name to market products is that such activity could dilute or harm the school’s brand. According to reports, Wayne Enterprises filed a suit in the matter in another state. However, the lawsuit was dismissed by the judge, who said the court didn’t have jurisdiction.
Estate issues don’t always revolve around physical assets or monetary concerns, as this case shows. And celebrities aren’t the only people who may leave behind intellectual property or other non-physical assets. Artists, writers, public figures and inventors are just some of the types of individuals who may leave behind difficult-to-classify valuables. Heirs who believe they are entitled to trademarks, royalties or control of intellectual property may have to seek legal protection over those rights, even in cases when the property or rights are included in a will or other document.
Source: Alvarado Star, “John Wayne’s heirs lose ‘Duke’ legal brawl” Oct. 01, 2014
In previous blogs, we’ve covered the importance of estate planning and the reasons Texas residents should consider creating a last will and testament, even early in life. Because individuals do die without wills, the Texas Estate Code details procedures for heirship proceedings.
Heirship proceedings are authorized in a number of circumstances. First, if a person dies without an estate plan or will, then heirship can help family members work through the court to administer the estate. The proceedings may also be allowed if some property was left out of a will, no disposition was previously made on the estate in Texas, or the trustee cannot fully execute an estate without determining who the heirs of a decedent may be.
Heirship action can begin any time after a decedent has passed away and can be instituted by family members, trustees, creditors or guardian of the estate. During the heirship process, legal action is taken to seek out and protect all possible heirs of the estate, which means the court will appoint a separate attorney to represent the interests of any unknown heirs. It’s important for family members to understand the full context of heirship proceedings, because it may come as a surprise to learn that other individuals could share in an inheritance.
The best way to avoid surprises during the estate administration process is to work prior to a death to develop wills and other estate documents. In the absence of such planning, however, experienced legal assistance can offer family members some peace of mind during heirship proceedings. Even without a will, the Texas Estate Code offers some protection to certain types of heirs.
Source: Texas Estates Code, “Authorization and Procedures for Commencement of Proceeding to Declare Heirship” Oct. 10, 2014
Since the country was hit by the recession in September 2008, 5.2 million foreclosures have been completed across the country. In August 2014, there were about 629,000 homes that were at some point in the foreclosure process. Last August, there were 936,000. This is a decrease of almost 33 percent.
According to the chief executive officer and president of CoreLogic, the number of completed foreclosures in the last 12-month period is the lowest it has been since November 2007. He also said that by the end of the year, that number could go below 500,000, giving the housing recovery a “solid boost” in 2015.
CoreLogic’s numbers indicate that the August numbers show 19 months in a row of at least a 20 percent decline year-over-year of the inventory of foreclosed homes across the country. The five states that had the highest number of foreclosures completed included Texas at number 3, with 36,000. However, Texas was not in the top or lower five states when it came to the lowest foreclosure inventory.
While the news that the number has dropped for completed foreclosures and the number of homes that are currently at some point in the foreclosure is positive, there is still some reason to be concerned, according to CoreLogic’s deputy chief economist. He said that we are now five years into expanding the economy and the number of homes in foreclosure are almost three times what is considered normal.
If you are facing foreclosure, you need to know that you have options. Even if bankruptcy is the best option for your current financial situation, there are cases in which you are still allowed to keep your home. Before allowing your home to fall further into foreclosure, you may want to seek the advice of an experienced real estate law attorney.
Source: Housing Wire, “Foreclosure inventory down 32.8% from August 2013” Trey Garrison, Oct. 02, 2014
Planning your children’s inheritance doesn’t have to be complicated. Whether you live in Texas or another state, if you keep a few tips in mind when you go to see your attorney or estate planner, you can ease both your mind and your children’s.
First, you don’t want your children to have big surprises at your death — especially if those surprises are not going to be good. Communicate with your children about your estate and plans while you are still alive. You don’t have to give them the “down and dirty” details, but by giving them a ballpark estimate of your estate’s worth and your plans, you have set their expectations and relieved them of anxiety or possible disappointment after your death.
If you have multiple children, likely you care about all of them. Therefore, if at all possible, don’t play favorites in your estate planning. This will only cause bitter feelings between siblings when you and your spouse are both gone. If you have reason to divide your estate unequally, the best time to explain those reasons is while you still can.
If you are afraid that your children, or one of your children, is not capable of handling the money you want to pass on to them, you can set up a trust to distribute the money in intervals, or when you feel it would be the best time. For instance, if one of your children has a drug addiction, or is still very young, you could have the money held until they are stable or of a certain age.
If you are not going to play favorites when dividing your estate, don’t trust one sibling, such as the oldest, to be in charge of equally distributing your estate among all siblings. This might be especially true if you have step-children you want to receive an equal share or if all siblings do not get along. You can add multiple beneficiaries on insurance policies and the percentage they are to receive. Include all of your children as beneficiaries with equal shares and you can eliminate potential family disputes.
Source: AARP, “How to Leave an Inheritance to Your Kids” Oct. 02, 2014