At the Jacobson Law Firm we do a lot of estate planning and probate a lot of wills. Ideally, the transition between making a will and settling an estate is seamless, with everything set out ahead of time and all parties in agreement, or at least acknowledging and following the stated desires of the person who made the will and then passed away. Ideally...
But what about the immediate aftermath of a person's passing? The will hasn't been probated, the house may be a mess, family may be unavailable (either geographically or emotionally), and an important decision needs to be made and, frankly, can't wait for people to show up: what to do with the earthly remains of the dearly departed. I'm in that stage of life where the people around me (including myself and my wife) are losing parents, and though it's usually not an issue, occasionally there will be power struggles between the kids as to Mom or Dad's wishes regarding interment, inurnment (a new term to me, learned because I'm presently involved in my church's construction of a columbarium, which is where an urn with cremated remains is kept), donation to science, etc. Whether it's a sincere desire to honor Mom's wishes or just control issues, there can be extremely sharp disagreements about how to dispose of the body. Wait, that sounds like we're trying to cover up a murder...
Fortunately, a Texas statute, Health & Safety Code Section 711.002, clearly spells out whose right and responsibility it is to decide on disposition of remains, and in what order. Generally, it's:
To avoid any misunderstanding, especially if you know there are those in the family who will make a big deal out of disposition of remains, it's a good idea to sign an Appointment for Disposition of Remains.
As always, the above is legal information, not legal advice, and it's based on Texas law because I'm a Texas lawyer. If you have questions, consult an experience estate planning attorney to discuss your options.
I'm a municipal court judge in two jurisdictions and a city prosecutor in another. In the 22 years this has been a part of my law practice, I've seen the too-young-to-have-that offenses that come into the municipal courts run the gamut, from alcohol possession to tobacco possession to possession of vaping materials and drug paraphernalia (not age-dependent). Although the contraband varies, the main excuse doesn't: "I was holding it for a friend". No matter how many times I hear or read those words, I think, "Really? That's what you're going with?" I sometimes follow up with, "Why?". It boggles my mind to see how often the answer is, "He didn't wanna get in trouble..." When I ask who the other person was, the defendant (because that's what he/she is by the time it gets to me) says some variation of, "I'm not gonna snitch on my friend". When I ask where the friend is here today in court, there's never a good answer.
The City of San Antonio instituted a new ordinance that makes it an offense to possess tobacco products (which includes vaping devices) if you're under the age of 21. The Texas Legislature is on track to make that a state-wide law. I have to say, I don't know how I feel about either one. Obviously, I'll enforce it in all my courts if it passes, but isn't there a better way to keep kids from starting than making it illegal for another three years? If that were so, I'd see a lot fewer possession/consumption of alcoholic beverage charges in the municipal courts. And believe me, the kids are still drinkin'. At school. In the parking lot.
So is it their parents' fault? A personal story here: I always thought teaching your kids that drugs and cigarettes and alcohol were bad for you was the way to keep them off the stuff. However, after Daughter #1 grew up and became a married woman, she told me that part of her "departure from the path" during college was that she had always heard me say, "People who use that stuff are bad people", and when she met some, they were really cool and nice people. Here's the thing: we never said the people were bad, just that the substances were bad for you. What parents say and what kids hear are often two different things. It's been that way since Eve said, "He's not the boss of me"...
I don't have an answer for the question, except to quote J.D. Walt: We aren't sinners because we sin, we sin because we're sinners. In the meantime, check out these resources:
Not everybody knows that Texas law requires that a person who has custody of the will of somebody who has died "deliver the will to the clerk of the court that has jurisdiction of the testator's estate" on receiving notice of the person's death. This isn't filing the will for probate, it's just delivering the will to the court clerk. In counties without a statutory probate court, that means the county clerk's office, which is in charge of records for the county court. You would think that one of the people who SHOULD know of the "deliver the will to the clerk" requirement is - well, the clerk!
Not so much...we heard recently from the daughter of a client for whom we had drafted a will that the client had died. After discussing his estate, we concluded that there was no reason to probate the will. Although the will didn't need to be probated, Estates Code Section 252.201 still required that it be delivered to the clerk. Because we didn't want to charge her for delivering the will, we sent her down to her father's county of residence southeast of San Antonio (a county that doesn't have a statutory probate court) with instructions on how to deliver her father's will to the clerk. It was not a short drive. When she got there and tried to deliver the will to the clerk, the deputy clerk informed her that they only take wills of living people for safekeeping (that's Estates Code Section 252.001), they don't take delivery of wills for dead people. Our client's daughter, because she wasn't willing to press and ask to speak with a supervisor, wasted a trip (well, the bluebonnets were beautiful, but you know what I mean) and still has the original will.
Now, to the title of this piece: In Texas, a county clerk, a county judge and a justice of the peace don't need to know anything about the law to get elected. They just need to get enough votes to get into office. Although most of these public servants are conscientious and have the interests of their constituents at heart, the training they provide their employees is sometimes woefully lacking. I think that's what happened in this case - the deputy clerk wasn't being uncooperative, she just hadn't been properly trained. One of the morals of this story is that if you think the public employee you're dealing with is mistaken, you may well be right! The other moral is: Always ask for clarification, always get a name, and don't be afraid to ask (politely) for a supervisor.
When my dad passed away in 2017, I was the executor of his will. One of the things an executor has to do is prepare an Inventory, Appraisal and List of Claims - basically, gather the decedent's stuff, figure out what it's worth and list any claims the estate might have against somebody. This has to be done within 90 days of receiving Letters Testamentary (the court document that lets you represent the estate). In the real estate section, I listed my dad's home in San Antonio and his lakehouse at Canyon Lake. That's it. That's all the real estate he owned.
Not exactly - see the picture above this paragraph? That's 1.549 acres in Travis County that was apparently omitted from the legal description in a sale of family land by my grandmother and her siblings back in 1963. They didn't know it was omitted, they thought they'd sold the entire 118 acres. The County apparently didn't know it either at the time, but 54 years later, somebody at the Appraisal District said, "Hey....nobody's been paying taxes on this acre and a half for the last 54 years. I wonder what's up with that?". Well, Granny, my great-aunt and my great-uncle - the people who sold the land - had all died years ago. The County paid good money to have somebody go through all the probate records and figure out who the second- and third-generation heirs were, and - you guessed it - tagged them with a bill for $11K of back taxes. Mind you, these were people who thought their parents/grandparents had sold the land over 50 years earlier. I approached all the adjoining landowners - nobody wanted to buy it. It's landlocked, in a drainage area, overgrown and (as you can see), one of the neighbors decided it would be a great place to dump all his old vehicles. The County appraised it for over $50K.
It appears the issue is about to be resolved (over a year later) with nobody's credit getting dinged with a tax lien; however, it took time, money, a largely cooperative family and Tylenol to resolve the issue, and if I hadn't been a probate lawyer, I don't know that I'd have any idea where to even start. If you find yourself in a similar situation, do yourself a great favor and contact an experienced real estate or probate lawyer. In fact, when a family member dies, it's always a good idea to consult a probate lawyer, even (maybe ESPECIALLY) if your family is saying the will doesn't need to be probated.
As always, the above is based on Texas law because I'm a Texas lawyer. It is legal information, not legal advice. Every estate is different, so be sure to consult an attorney if you have questions or concerns about a legal matter.
Tomorrow is moving day at the Jacobson Law Firm. Yup, we're packing everything up here at the place we've been practicing for the past 17 years and moving it all...50 feet south. From Suite 201 to Suite 301. It's a bigger space with a fresher feel and we're all excited about the change.
Did I mention we're moving 50 feet? Guess what? We still have to pack everything, look at what we REALLY need and what we can get rid of, figure out what needs to be replaced and what just won't work in the new configuration, notify everybody, change the letterhead and business cards, get phones and internet switched over. For 50 feet.
Why? Well, we can't grow any more in our current space. We have been, as our realtor and friend Jonathan Collins of Valcor Commercial Real Estate described it, "extremely efficient" in our use of space, but God has blessed us with a ton of work and new clients and it's just time. That 50-foot move will allow us to serve more clients, better and more efficiently, while giving all of us a little more elbow room. Many of the things we've taken for granted (broken file cabinets, out-of-date books, etc.) now have to be addressed, and that's a good thing. If the process of moving 50 feet results in us "helping people for life" at a higher level, it's worth it. Let's go! Purge! Pack! Move!
I'm tired already...
Many of you know that my father passed away a year ago last October, and that he was my law partner from 1994 until his retirement in 2015. In his last couple of years in practice he began to slow down cognitively a bit, which frustrated him (and occasionally the rest of us!) greatly. We received a great blessing this week when a former client of Dad's called, wanting us to prepare a document involving property in a probate matter Dad handled 10 years ago. None of us were involved in that case, and what the client was asking for didn't make sense from a probate perspective. We retrieved the file from offsite storage and when I opened it, right on top was a complete, concise and cogent handwritten note from my father, along with some printed emails, explaining precisely what the client had wanted (the same thing) years years earlier and why it wasn't legally possible to do that thing that way. As I read Dad's notes aloud to our staff, we got to remember back before the cognitive deterioration and hear Dad speak in his brilliant, confident way, missing nothing and summing up both the problem and its solution beautifully. What a blessing.
During this holiday season, take time to remember the people whose places at your table are empty. But remember them as they were in their best days, before they were bent by age or circumstances. Tell your favorite stories of those people, the ones that still make you laugh or shine with pride in the retelling. And do yourself a favor: listen to "Family Tree" by Dave Barnes this Christmas.
Thanks for the note, Dad. Love you.
At the Jacobson Law Firm, we represent a lot of senior/elder clients with estate planning, probate and other issues. A call yesterday reminded me of just how vulnerable this demographic is to unscrupulous opportunists through a technique called "social engineering". A client called and said an elderly family member had received a call from someone claiming to be a friend of her grandson's and told a story about the grandson being arrested for DWI and urgently needing $4,000 to get him out of jail. The caller had personal information on the grandson that convinced the grandmother the call was true, and asked her not to tell his father because he was so embarrassed. Fortunately, word got back to the father, who called his son, verifying nothing was wrong. He then called the scammer, who had the gall to yell at the father for wasting his time!
My parents were victims of the same sort of scam by someone pretending to be their grandson. Unfortunately, we didn't hear about it until they'd already sent money. In a similar scam, people will email the elder pretending to be a friend (again, the social engineering angle where they have enough information to be believed) who was robbed in London, lost passports and credit cards, had to pay the hotel bill or couldn't leave, etc., etc. Probably many of you reading this have had the calls from "The IRS" saying a lawsuit has been filed and the police are on their way to your office/house to arrest you if you don't pay up right away.
Thieves have bilked thousands and thousands of dollars out of good-hearted people this way. A BIG clue: if anybody says you have to buy gift cards to pay a debt - IT'S A SCAM. Do your elder family members a favor and check in with them regularly. Ask if they've gotten any odd calls or emails lately. Use that as a "teachable moment" to bring up some of these scams.
As always, the above is legal information, not legal advice, and it's based on Texas law because I'm a Texas lawyer. If you or your family members are faced with a situation like those described, be sure to contact the police and an experienced elder law attorney.
We do a lot of probate here at the Jacobson Law Firm, and it's a great privilege to serve families in that sometimes-challenging arena, especially when a will is being probated shortly after the death of the family member and the grieving process is ongoing. Sometimes the challenge is that family members are impatient to get the estate probated (to "get what's coming to me", or to just get it over with). This can lead to unfair pressure on the executor, who actually has four years to probate a will, though people don't usually wait that long. The person you name in your will as the executor of your estate should be able to withstand this kind of pressure without getting too annoyed, angry or fed up. If your spouse isn't that kind of personality, consider (after discussing with said spouse) naming an adult child or sibling who has a tougher hide.
Sometimes the problem is that the person named as executor has absolutely no interest in serving in that capacity, or actively refuses. We've had clients who named a prodigal child as executor, thinking that this vote of confidence would somehow change that child into a responsible adult. Don't! We've had to chase unwilling executors literally around the world to get them to either do the job or waive their right to serve, all because of something that happened years ago that never got resolved (or forgiven). An executor who has had a falling out with you or your family and is no longer in your life IS NOT THE PERSON YOU WANT IN CHARGE OF YOUR ESTATE.
As always, the above is legal information, not legal advice, and it's based on Texas law because I'm a Texas lawyer. Each case has its own unique facts, so be sure to consult an experienced probate lawyer if you find yourself in the position of being - or needing - an executor.
I met with a nice older lady recently who really just wanted a power of attorney prepared. As we discussed the various kinds of POA, she asked whether I would mind taking a look at the wills she and her husband had had prepared years earlier, before he developed Alzheimer’s Disease and before two of their four children had passed away.
As I reviewed the wills, they seemed well-drafted and had obviously been prepared in a lawyer’s office. As I turned to the signature pages at the end, however, my heart skipped a beat: although she and her husband had signed their respective wills and a notary had witnessed their signatures, the lines where the required two witnesses should have signed and the lines for their names were blank! She and her husband thought they had executed valid wills, and the wills stated their wishes properl; however, the wills were executed incorrectly, meaning that if either of them had died, that person would have died intestate (without a will). To make matters worse, her husband was now incompetent and unable to execute a new will, and since two of his children have since died, leaving children of their own, his estate would pass much differently than he had indicated in his will.
Fortunately, we will be able to adjust the client’s new will to largely overcome the problems her husband dying without a will would have caused; however, had she not asked me to review the wills, it’s likely neither of their estates would have passed the way they intended. Potential legal malpractice by her previous attorney aside, the moral of this story is to review your estate planning documents regularly. Usually, that’s just to make sure they’re current; however, in this case, the review prevented a big mistake from having dire consequences.
As always, the above is legal information, not legal advice, and it’s based on Texas law because I’m a Texas lawyer. Each person’s facts are different, so be sure to talk with an experienced estate planning lawyer if you have questions about what’s best for you and your family.
The picture’s just a cool sunset from a recent trip to Yellowstone. Enjoy!
Catchy, eh? To review basic physics and orbital mechanics (neither of which I ever took), the Coriolis effect is when it appears an object (a plane or a cannonball, for example) is veering off course, when actually the earth is rotating under the object - essentially, and with apologies to my buddies who are artillery types, the target is moving so you have to plan for the Coriolis effect in order to hit the target.
Applying the Coriolis effect to your estate planning (which, for our purposes today, includes advance directives like medical and financial powers of attorney), say you've named your spouse as your primary agent (executor, trustee, POA holder, etc.) and your spouse dies before you do. If you haven't planned for that contingency (you were wondering when I was going to get to that!), then your document can't help you because there's nobody to exercise the powers you granted. That's why we always insist that our EP clients provide at least one alternate agent for each position. The other thing you can do is make sure you're reviewing your documents every 3-4 years so that if it's necessary to add or remove a person or a bequest, you can make those revisions before it's too late. This turns your cannonball of a document into a GBU (guided bomb unit) that you can adjust while it's on its way to the target!
Can you tell I've been reading military stuff lately? As always, the above is legal information, not legal advice, and it's based on Texas law because I'm a Texas lawyer. Your situation will be unique to you, so you should always consult an experienced estate planning lawyer before making these decisions. And remember: with wills, powers of attorney and directives to physicians, when you need it, it's too late to get it. So don't wait.
Musings, observations, the occasional whineage and some funny stuff.