Monthly Archives: February 2015

What rights might be impacted by a guardianship?

Guardianships

A guardianship sometimes occurs when a person is no longer physically or mentally capable of making sound decisions about personal or business finances, property or legal matters. A guardianship can be an effective vehicle by which a person and one’s property is protected, particularly when care and compassion are part of the process. However, there are legal ramifications to guardianships, including an impact to the person’s rights.

Generally, courts can appoint guardians in various capacities, so all the rights of a person are not impacted. In some cases, a person may still be able to make his or her own decisions regarding certain matters — for example, one may have the legal capacity to decide for oneself on medical matters or vote, but not have day-to-day functionality to handle the complex details related to financial matters.

Some rights that could be impacted by a guardianship include the ability to determine where you live, consent to or deny certain medical treatment, drive with a valid driver’s license, make decisions about end-of-life care or own a firearm. Other rights that may be lost include the ability to sign contracts or file lawsuits, enter into marriage or sell or buy property.

When guardianship is established, the person taking guardianship may be able to do many of these things on your behalf. This makes it essential for you to consider carefully who you might have as your guardian — in some cases, you can note guardianship preferences in estate documents. In other cases, family members and friends seeking to place someone in a guardianship situation should carefully consider who they appoint to best protect their loved one.

Source: National Guardianship Association, “What is Guardianship?” accessed Feb. 27, 2015

Well-Organized estate planning documents

Estate Planning

A carefully put together estate plan is one of the most thoughtful inheritances that any Texas resident can leave behind for his or her loved ones. Even if you do not believe that the estate you leave behind is going to be a very sizable one, the value of your estate plan cannot be underestimated.

Even in cases that involve small estates worth less than $5,000, a well-planned estate can help relatives and loved ones complete details pertaining to the end of your life in a manner that is free of stress. Relieving loved ones of estate administration burdens is important considering how they will already be dealing with difficult emotions relating to losing a family member.

A well-planned estate can also help Texas families avoid the risk of infighting after the loss of a loved one. Everyone has heard heartbreaking stories about families getting into legal battles over who gets what following the death of a parent or grandparent. It is frightening to think that something like this could happen in our own family, but even the most cohesive family’s bonds are strained following a death. With an intelligently planned estate, though, one can itemize personal possessions to indicate exactly who will receive what. One can also handle the division of the estate in a way that ensures everyone is treated equally to limit the chance of family disagreements.

At the Law Offices of Victor H. Falvey, we know how important your family is to you. We also know that the tiniest of details can make or break an estate plan following your death. A well-organized Texas estate plan requires foresight, legal expertise and an in-depth understanding of the individual family for whom it is to be designed.

What is not included in a seller’s disclosure in Texas?

Real Estate Transactions

A seller’s disclosure is simply a document that relates information about a property to potential buyers. This is done so that the buyer really knows what he or she is getting and so that there are no surprises. However, some things that you may think should be included are not actually required in Texas. It’s very important to know how this works.

For example, many buyers will want to know if someone died in the house. However, if that death was a suicide, an accident or just a death from natural causes, the seller is under no obligation to tell the buyer about it. However, if the accident only occurred because the property itself is unsafe in some fundamental way, a seller may have to disclose this so that the buyer knows what repairs and upgrades are needed.

Additionally, when an inspection is done and the home fails this inspection, making it so that a sale doesn’t take place, the seller is not obligated to give that inspection report to the next potential buyer. However, the seller does, as noted above, have to disclose defects and problems with the home that are already known. Therefore, if those things are in the report, it’s not a bad idea to give this inspection report to the next potential buyer, even though the law does not directly require such action.

Finally, if there is a sex offender living near the home, the seller does not have to lawfully disclose this fact to potentially buyers. It is up to those buyers to do their own research on the sex offenders registry and to learn about the offender on their own.

Source: Texas Association of Realtors, “12 things you should know about seller’s disclosure” accessed Feb. 20, 2015

Battle rages over Robin Williams’ estate

Estate Administration

After the passing of Robin Williams, it seemed that the man’s wife and his children — who come from previous marriages — would not have to fight in court over his estate since he had done such a good job planning out what was to be done with his possessions. He and his wife had a prenuptial agreement, and his estate plan is in line with that agreement.

Basically, it gives his wife the home that they had in Tiburon, and it even says that a trust must be made so that the expenses of the home are financially covered. Other properties in Napa Valley are then given to the children, along with a lot of Williams’ personal memorabilia and effects.

However, for some reason, his widow has decided to start a court case. She wants to keep all of the things in the house, despite the estate plan saying that some of it goes to the children. She also wants the court to decide how large her trust should be.

What is curious about this development is that it has happened at all. Some of the things that she is asking for are already supposed to be done; for example, a legal team is already supposed to determine what the trust has to cover and then they will set it up to pay for the house. By making it into a court case, Williams’ widow may get the same end result, but everything will be more public.

To avoid things like this in Texas, it is very important to create an estate plan and to be very specific so that there is no room for debate.

Source: Forbes, “Robin Williams’ Widow Starts A Court Battle — But Why?” Danielle and Andy Mayoras, Feb. 03, 2015

Estate planning: Take care when naming beneficiaries on accounts

Heirs & Beneficiaries

Any Texas resident may be able to benefit from strong estate planning — you don’t have to be rich to want to protect your heirs. In fact, you might be taking estate planning measures without even realizing it when you set up certain accounts or policies, such as savings bonds or life insurance. Keeping your overall estate planning goal in mind when selecting beneficiaries for such accounts can save future trouble and help protect your heirs.

Some mistakes people often make in completing beneficiary forms include naming a single minor or disabled person as the beneficiary. Sure, you want the assets to pass to your children, but if they are minors or are not capable of handling the assets for other reasons, you should make provisions on beneficiary forms and in estate plans. Name someone you trust to handle the money on behalf of the minor, or the court may do it for you.

Naming your estate as a beneficiary is a tactic that can help save on taxes and protect your assets, but it doesn’t work for every type of account. In some cases, the payout and tax structures related to an individual beneficiary are more flexible than those related to an estate.

In addition to choosing the right beneficiary when completing forms, it’s also a good idea to review beneficiary forms from time to time as estate needs change. If there is any reason to change your will, for example, you should probably review beneficiary designations to ensure they are in line with your new wishes.

Estate planning can get complicated, especially if you have multiple accounts and policies with different beneficiary forms. Third-party assistance can help you combine all the parts of your estate in a cohesive plan that protects your wishes and your heirs.

Source: The Wall Street Journal, “Beware the Beneficiary Form” Carolyn T. Geer, accessed Feb. 10, 2015

Is that fence on your El Paso property or your neighbor’s?

Real Estate Disputes

Texas landowners take a lot of pride in their land, and boundaries are important. What happens when you find out that the neighbor has been using a piece of your land?

Well, in some cases, if they are good neighbors, when confronted, they will relinquish their use of your land, offer to buy it off of you or maybe offer to pay for their use of it. In the other percentage of cases, they may claim the land is theirs. Are they right? If a survey of the properties has not been done in a long while, it may be time to do one.

This is often where disputes over residential property take place. Those disputes can quickly escalate into full-fledged feuds if not handled properly. Seeking the advice of an attorney should be your first step.

While a survey should have been done when the property was purchased, if the property has been owned for a long time or in the family for a long time, aged deeds may not have defined the boundaries in clear terms. For instance, they may reflect the boundary as being so many feet away from a riverbed that is now nonexistent or has changed over the years. If a fence line once defined the property boundaries, the fence may have been moved.

Another argument that often comes up is to who owns the fence on the property line — who is responsible for maintaining the fence or tree that resides on the property line.

There are many ways to resolve land and property disputes. An attorney can provide advice and different options that are available. In the event that property owners cannot resolve the land dispute in any other way, there is such a thing as a “quiet title lawsuit” that can be filed requesting a court to determine the property boundaries.