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.
At The Jacobson Law Firm, we do a lot of probate work, and though many executors prefer to handle the estate administration themselves after getting the court’s authority through “letters testamentary”, we often help guide the executor through the process of administering the estate, and this includes a detailed description of the executor’s duties. In a recent case, the executor was assisting the widow in getting her bank accounts balanced, and in the midst of the process, came upon an automatic debit from an account that nobody in the family could account for (so to speak). On doing a bit of research, the executor discovered that the debit was for insurance premiums on an accidental death policy the decedent, a few months before his death, had taken out on himself. No one in the family had been aware of this policy. So, since the cause of death was listed as “complications of subdural hemorrhage from a fall”, and after discussion with the family, the executor contacted the insurance company to see about filing a claim for accidental death. Long story short: after receiving the claim and some medical records, the insurance company, without arguing, paid the widow a completely unexpected $153,000.00.
This story has two morals: 1) that if you’re serving as executor or administrator of the estate of someone who has died, it’s critical to go over ALL the financial papers to ensure both you and the survivors understand the state of the decedent’s affairs, and 2) that sometimes the executor can help the family even if the asset doesn’t pass under the will. You see, insurance proceeds don’t generally pass through the estate unless the estate is listed as the beneficiary. If the executor had seen “insurance” and ignored the automatic debit, assuming this didn’t concern his duties to the estate, the widow might have lost the opportunity to recover under the insurance policy.
If you find yourself in the position of serving as executor under a will, please talk with an experienced probate attorney. The person who appointed you trusted that you would care for his or her surviving family - take the responsibility seriously and exercise it thoroughly and humbly.
As always, the above is legal information based on Texas law because I’m a Texas lawyer. It’s not legal advice, and you should consult an attorney with experience in your particular problem area before taking any action.
At the Jacobson Law Firm, PC we do a lot of estate planning and probate. Probate costs money. We tell all of our estate planning clients that if there's a way to designate a beneficiary on a financial account or other property instead of passing it under a will, they should strongly consider that because it saves both money and time. My March 16, 2018 blog on a way for married people in Texas to transfer title to a motor vehicle without going through probate when one spouse dies generated a number of comments, including one just today from my college roommate's wife, who asked if they should use the front of the title to make the "Joint Tenants With Right Of Survivorship" election, because only her husband's name was on the title. She said the DMV had mentioned another form that lets you designate a beneficiary for your automobile without having to go through probate (much like the JTWROS election). It looks like a great way to avoid having to use the probate process to transfer title if, say, you want one of your kids to inherit the car and not have to wait for the probate process to be completed in order to get the car in the child's name.
Behold, the Form VTR-121!
Okay, you have to squint a little, and it's just a screen grab of part of the form, but here's the link to download one of your very own. This won't work for every situation, so be sure to read the form and instructions carefully and contact the DMV if you have questions. Also, remember, this blog is legal information, not legal advice: your particular circumstances may not make this the best choice for you, so I recommend you talk with an experienced estate planning lawyer before making any decision about who gets your stuff when you die.
I usually draft these blogs from scratch, but I ran across a very helpful link published by the Real Estate, Probate and Trust Law (REPTL) Section of the State Bar of Texas that answers many of the questions my clients ask about how, when and why to pass title to real estate. I've been a member of the section for years but had never seen this resource before, so I thought I'd pass it on: Pay no attention to the fact it uses the term, "conveyancing" which has an extra and unnecessary syllable ("conveying" works just as well) - hey, they're lawyers.
I want to draw your attention to one particular type of deed: the Transfer on Death Deed, or TODD. This is a way for people whose estate consists of just real estate (usually a residence) and a few personal items to potentially avoid probate by conveying the property, but having the deed not take effect until they die. There's more to it
(it's revocable, for one, which is potentially a good thing), but it's worth a look.
We do a lot of probate cases here at the Jacobson Law Firm and most of them have an element of sadness to them - after all, the client has come to us because a loved one passed away. At times, we find that the decedent lived such a magnificent, joy-filled life that it's hard for those left behind to be sad that he or she is gone - the grieving is mixed with joy and gratefulness at the memories that person created. Those are the "fun" probate cases.
I was reminded recently of the other end of the spectrum: a new client came in whose family member, a military veteran, had taken his own life. This was by no means the first suicide probate we've handled. As we're a veteran-owned firm, these cases strike close to home, but any time a person ends the suffering by his or her own hand, there's precious little joy, if any, to be found. There is often shame on the part of the family member who has to disclose this information to us, either because that person feels he or she could have somehow stopped it, or because it's seen as failure or cowardice on the part of the decedent which reflects badly on the family. Neither of these is helpful. Robin Williams, Anthony Bourdain and Kate Spade were celebrities with, one would assume, everything to live for, yet they chose to take their own lives. We don't know precisely what the trigger was for any of them, but we heard about them because they were famous; "ordinary" people have demons, too.
Fortunately, there are resources available to address risks, prevention, intervention, recovery from attempted suicide and many other aspects of this very complex issue. Two that I've found are the Suicide Prevention Lifeline (www.suicidepreventionlifeline.org/ ) and the Suicide Prevention Resource Center www.sprc.org/. I'm not advocating these two in particular, but they may be a good place to start if you find yourself dealing with this issue, either personally or with a friend or family member.
If you're just joining us, you might want to go back and read the 24 April blog for the first set of executor challenges we discussed. It's not critical to this week's topics, but there's some good stuff in there. By the way, most of these answers apply to both independent executors ("IE", named in the will and received letters testamentary from the court) and independent administrators ("IA", not named as executor, or there was no will, but got letters of administration from the court - when I use "executor", I generally mean either of these). Now, to jump into more potential headaches!
1. The person whose estate I'm administering owned a home and either (a) he bequeathed it to a particular person or (b) it's part of the general estate and the beneficiary wants to keep it. What do I do? This is a fairly uncomplicated one - as the executor, you can transfer the property by way of an Executor's Deed to the beneficiary. The deed should be filed in the property records of the county where the property is located - if it's in the county where the probate was granted. One thing to be aware of is that most wills transfer property "subject to all liens and encumbrances", which means that if there's a mortgage on the property, the person who gets the property also is responsible for the mortgage.
2. Okay, but he also had a vacation home in another county - can I just do another deed? Yeah, not exactly. Real property (land) that passes by will or inheritance has to be probated in the county in which it's located (called in rem jurisdiction - interesting but nobody cares except lawyers). What usually happens is that after the will has been probated in the county where the person dies, there's a (usually purely paper) process called "ancillary probate", where the court documents from the first probate are filed in the records of the county(ies) where any other real estate of the decedent is located. THEN an executor's deed is filed in the applicable county.
3. How about the real property he owned in another state? How does that get treated? The answer depends on the state where the other property is located. Every state has different requirements: in my experience, most will have an ancillary probate process that much like the process in Texas (purely paper); however, some states (Florida and New Mexico come to mind) require a partial or complete probate process that may force you to hire an attorney licensed in that state to get property transferred. The best thing to do is TELL YOUR PROBATE LAWYER ABOUT ALL THE PROPERTY THE DECEDENT OWNED right at the beginning, so the complexity and cost can be factored in.
As always, this legal information is based on Texas law because I'm a Texas lawyer. It's not legal advice, and each case is different, so be sure to contact a law firm or attorney who practices a lot of probate if you have questions about your situation.
At the Jacobson Law Firm, a significant part of our practice is business law, including formation of businesses, serving as "outhouse counsel" (for companies that can't afford in-house counsel) and serving as registered agents for many of our business clients. For Texas business entities (LLCs, corporations, limited partnerships, etc.), there are two required annual reports that must be filed by May 15th: the Public Information Report (PIR) and the Franchise Tax Report, which for most small businesses is a "Report of No Tax Due" (RONTD). Stay with me here...
The PIR lists the people who are in charge of the business (directors, managers, general partners, members, etc.). The RONTD is, as the name indicates, a statement that the business doesn't have enough assets to have to pay franchise taxes. Failure to file either report can get the business's certificate of formation revoked and result in involuntary termination - meaning that the liability shield that the owners can disappear altogether. This is a bad thing.
Another bad, and related, thing is that many business owners don't remember they have to file these reports, and they rely on the annual reminder the Comptroller sends out. Here's the problem: most of our business clients have not received this reminder for 2018 yet. A contact at the Comptroller's office told my staff earlier this week that they've had a number of complaints that the notice hasn't been received, and we can verify that most of the clients for whom we serve as registered agents haven't received their notices. Guess what? Failure to receive the notice doesn't relieve the business from having to timely file the reports.
So, Texas business owners, be sure to get your reports filed by the May 15 deadline! Your CPA can help you with the RONTD - they probably did it when they did your tax return. Either they or your attorney can help you with the PIR. Both forms are also available on the Comptroller's website at the following link: comptroller.texas.gov/taxes/franchise/forms/2018-franchise.php
As always, this legal information is based on Texas law because I'm a Texas lawyer. It's not legal advice, and each case is different, so be sure to contact your attorney (or CPA, in this case) if you have questions about your situation.
We do a lot of estate planning and probate here at the Jacobson Law Firm. That means we draft a lot of wills and trusts, as well as other advance directives, and we help a lot of people through the probate process. One of the great honors in life is to be asked to serve as the executor under the last will and testament of a friend or family member. This means the testator (person making the will) trusts you to take care of his or her estate and the needs of his/her family during the most difficult time many of them will ever face. [Side note: his/her is awkward, but I can't bring myself to use "their" - "he" or "she" is singular, "their" is plural, and that is just a syntactic bridge too far for me. Back to the topic.]
Although it's an honor, there are things to consider both in naming someone and in accepting the assignment. I'm serving for the second time, for my father's estate, and between my own experiences and those of hundreds of clients over the years, certain things keep cropping up that make an executor think, "Now why, exactly, did I accept this honor?" This is not an exhaustive list (and probably just the first of a number of posts), but will give you an idea of some of the challenges of serving as an executor.
1. "I know he had insurance, but I can't find the policy anywhere. And is that my job?" Yes, but only to the extent that the policy payout has to go through the estate. If there's a beneficiary named, your legal duties as executor are over, because those proceeds don't pass through the estate - but your mom probably still needs for you to help.
2. "I have a job, but all the companies, government offices and businesses I have to talk to are only open during my work day." This is one of the biggest challenges: balancing your normal life with the added duties of being someone's executor. The problem grows if your profession has you charging by the hour for your time. Just sayin'...
3. "She was a military veteran/retired military - does that complicate things?" Yes - yes, it does. Dealing with the Department of Veterans Affairs (VA) and the Defense Finance and Accounting Service (DFAS) can be the most frustrating part of trying to settle an estate and get the surviving spouse/kids set up with a new payment schedule and amount. If you've never been in the military or been a military family member, the language and acronyms alone can drive you nuts, and the required paperwork and "That's not something this office can help you with" answers are extremely challenging to negotiate.
4. "He was a retired teacher - does that complicate things?" - Don't GET me started on how unresponsive the Texas Teacher Retirement Services office is. Best to just drive up to Austin and stand in their faces. And wait.
5. "We were going through his files and found some old stock certificates, but they're for a company I never heard of. What do I do with those?" Tracking down companies that may have been sold, merged, etc. can be a challenge. Google is your friend on a lot of these issues. You may find that the stock is worthless, but you may also find that it's split 6 times since the stock was bought.
As noted, these are just a few of the practical issues that may arise if you serve as an executor. Before you say yes (or before you name somebody), consider how much time it requires and whether you (or the person you name) have/has the temperament and time to negotiate challenges like those discussed above. It's not "rocket surgery", but it does require a modicum of patience and organizational skills.
As always, the above is legal information based on Texas law because I'm a Texas lawyer. It's not legal advice, and since every case is different, you should contact an estate planning and probate lawyer to discuss your particular case or concern.
We're a firm that does a lot of probate, and sometimes an easy fix will come up of which I should have been aware but which had escaped my notice. We're in the midst of settling both my father's estate and my father-in-law's estate at the moment, and I have discovered (or re-discovered) one of those things: In Texas, there's an easy way to take one load off of your spouse when you die, and that is to designate ownership of your vehicles as "joint tenants with right of survivorship".
When a person dies owning a vehicle, the inevitable hassle begins as to how the car gets re-titled. Even if both names are on the title, the state presumes it's community property and so the decedent's half has to be conveyed to the survivor. That requires either a probate action or an affidavit of heirship for transfer of motor vehicle, both of which take time and cost money and involve dealing with sometimes surly employees. However, there's a place down at the bottom of the form (see below) where you and your spouse can choose to own the vehicle as "joint tenants with right of survivorship (JTWROS). When you make this election, when the first spouse dies, the surviving spouse just keeps on owning the vehicle - no need for an affidavit of transfer or probate.
Making use of this option will give your surviving spouse one less thing to fret about. That may seem small, but in the midst of grieving and changing accounts, and getting Social Security (or, worse, the Texas Teacher Retirement System - don't GET me started) to respond, and probate, anything that lessens the burden helps immensely. Do each other a favor: sign the JTWROS statement on your car title.
As always, this blog is based on Texas law because I'm a Texas lawyer, and it shouldn't be construed as legal advice, just legal information. Every case is different, so if this raises questions in your mind, please consult a lawyer who deals in this sort of thing.