We do a lot of probate here at the Jacobson Law Firm, as well as consulting with people to help them understand various legal situations in the areas in which we practice. I met with a person recently who was adamant that his father had MUCH more money than his sibling (the executor of the estate) listed in the estate inventory and he was certain that he was being cheated out of his "fair share" under the will. After listening to a litany of complaints about his siblings and a list of all the assets (gold, investments, bank accounts, real estate, etc.) Dad had when he passed, I started asking about what estate planning documents his dad had executed before his death.
Turns out Dad had given a financial power of attorney, also called a Statutory Durable Power of Attorney, to the executor sibling that allowed the sibling to change Dad's beneficiaries and add people as owners of his accounts before his death. He had also executed a transfer on death deed (TODD) to another sibling that gave her his house when he died. Why is this important? When you have named beneficiaries on your financial accounts, those accounts generally don't pass through your estate, they go directly to the person you named, and much more quickly than if they had to pass through the probate process. And a TODD is a very handy document for removing real estate from your probate estate as well.
Unfortunately for this person (not a client), his dad had done just what we recommend to a number of our clients that they do: he used several legal methods to remove property from his probate estate, avoiding the probate process for those assets. Maybe Dad could have communicated that to his kids, but he wasn't under any obligation to do so. The end result was that the term, "My entire estate" in Dad's will referred to a lot less money than this person had expected. In the immortal words of Inigo Montoya, "This word - I do not think it means what you think it means..."
Morals of the story?
1. Be nice to your siblings, don't borrow money from your parents and don't "bank" on getting anything!
2. There are a lot more tools in the estate planning toolbox than you may think.
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 or concerns about how to plan for your family after you pass, please contact an experienced estate planning attorney.
"Why pay a lawyer? I know what I want, I'll just write it out myself."
Well, yeah - if you're looking to save money, it costs nothing to hand-write your will. Here in Texas, and in a number of other states, this kind of will, called a "holographic" will, can be a perfectly valid way of expressing your directions as to who gets your stuff when you die. But wait, there's more...
With a professionally prepared and properly executed will, your executor will generally spend longer sitting in court waiting to talk with the judge than he/she will actually talking with the judge. It's quick, efficient, and lets the executor get to the task of paying debts and distributing assets without a full-blown hearing.
In Texas, there's no need for witnesses to sign a holographic will; however, when it comes time to probate a holographic will, your executor will generally have to find two people who are not related to you and are familiar with your handwriting to testify that you wrote the will. If you don't use the correct words ("independently, to serve without bond", etc.), the court will have to oversee the administration of your estate unless all your beneficiaries agree to an independent administration. This takes more time, incurring more expense to your estate and less money to your beneficiaries. If you don't have what's called a "residuary clause", your estate may not go to the people you thought it would. And on and on.
Yes, this is how I feed my family and pay all of my employees, but even if it weren't, my strong advice would be, "Don't write your own will." Make an appointment with an experienced estate planning attorney and talk about your options. Your family will thank you for it.
As always, the above is legal information, not legal advice, and it's based on Texas law because I'm a Texas lawyer.
My maternal grandmother was a pretty doggone good cook. She loved her own cooking (biscuits were here specialty - made them every day), as shown by the fact that she was about 4'10" tall and about as wide. Her name was James Scott Shropshire Miller. Yup. She went by Scott, but we called her Grandmother. Great-Grandpa apparently wanted boys. I'm not quite sure how the story goes, but as I recall it, one of her daughters (my mom, Barbara "Junior" Miller or her sister Pat), while visiting her mom in Brady, Texas, was looking through Grandmother's recipes for a favorite and noticed that there were no temperatures written down, just the instruction, "Cook till done". When asked, Grandmother said something like, "There's no way to change the temperature on the 'new' oven" (it was ancient by then), so she just stuck stuff in and when it looked done, she took it out. Apparently she was some sort of doneness savant, because she rarely burned anything. When her daughter looked at the oven, there was a temperature adjustment that worked just fine. Grandmother had just never bothered to learn to change the temperature.
How (I hear you wonder to yourself) does that relate to the practice of law? I'm glad you asked! It's a little like the adage, "When all you have is a hammer, everything looks like a nail". In the world of estate planning, there are many ways to deal with both who gets your stuff when you die and whom you choose to be your agent in the event you're not able to handle your own affairs, either temporarily or permanently. There are the statutory forms, which are pretty flexible and which we use a lot, but there are also situations that call for more complex documents, and the attorney you choose should be able to "adjust the temperature" to your particular recipe. Likewise, your will can be a "mom and pop" affair (all to the spouse and then to the kids), or it can deal with stepkids, single people, beneficiaries who will need trustees or guardians, favored pets, your church, synagogue or favorite charity, etc.
If you're not sure about how to deal with these matters, you're not alone. Find an experienced estate planning attorney in your area and make an appointment to talk about your recipe. As always, the above is based on Texas law because I'm a Texas lawyer, and it's legal information, not legal advice.
Okay, I've played versions of this tune before. And yes, estate planning is a lot of how I feed my family. But I received an email from a Christian financial guru (who shall remain nameless) hawking yet another online do-it-yourself estate planning service and I just can't keep still. The pitch was, "Just answer a few questions and you'll have all your documents prepared just for you!" or some such. What these services don't tell you is that they can't answer legal questions for you or suggest a particular form or content that might fit your situation better. They can't ask clarifying questions in order to custom-tailor your documents to your needs. That's the unauthorized practice of law, which is illegal.
My response to the pitch, at the risk of sounding harsh: if you think you and your family are nothing special, that you have no unique concerns or questions, go ahead, pay a hundred bucks or so and do it. But how do you know what you don't know?
Estate planning attorneys know what questions to ask to elicit the information they need in order to fully analyze your situation and make recommendations on how you should protect your family and your stuff. Beyond that, an attorney can explain the documents, their effect, their limitations and how to implement the powers they provide. We tell all our estate planning clients that what we want most of all is for them to understand the documents we create for them and know how to use them when it's time.
Remember: there are four documents that, when you need them, it's too late to get them: a will, a financial power of attorney, a medical power of attorney and a directive to physicians, and you want them to address YOUR situation, not everybody else's. If you're serious about protecting your family, give strong consideration to sitting down with an experienced estate planning attorney to discuss these documents and others - tailored to your particular situation - that will meet your needs.
As always, the above is legal information, not legal advice, and it's based on Texas law because I'm a Texas lawyer.
We do a lot of probate - settling people's estates after they die - here at the Jacobson Law Firm. Although each case is different, most of them follow a very similar pattern in how we gather the information needed, how we arrange for witnesses if necessary, set the case for hearing, etc. , so that there are no surprises when we're standing in front of the judge. Some of the questions that we ask clients and witnesses can seem a bit intrusive, but that's the information the court needs in order to make sure everything is in order. If we don't get all the information, it can create a problem.
So you can imagine my surprise when my client, who was named as the executor in the will, responded to the judge's question, "You've never been convicted of a felony, have you?" with, "Yes, ma'am..." Awkwarddd...In fact, as we sat in the courtroom waiting to be called to the bench, every time the judge got to that question with other cases, I had the nagging thought, "I asked him that, right? Did I ask him that? I must have...besides, what are the odds?" Nope.
The takeaway for me was, "Put that on EVERY probate questionnaire!" - this situation occurs so infrequently that it's easy to gloss over in client interviews, and frankly, it would have been less awkward for him to tell ME he had a felony conviction than to have to admit it in open court. You see, felonies and crimes involving what's called "moral turpitude" (fraud, embezzlement, theft, etc.) disqualify that person from serving as an executor, pretty much no matter how long ago the crime occurred. My client's conviction was nearly twenty years earlier when he was, in his own words, "a different person". None of that matters to the court. We'll get the issue resolved and move forward, but it's better to avoid this type of problem than have to recover from it.
The takeaway for you is this: when you are choosing your fiduciaries (executors, trustees, guardians for minor children, etc.), ASK THE QUESTION. Even if you know the person well.
A second takeaway: please, please, PLEASE don't use a "one size fits all" will from an online service. This particular will was downloaded from the internet (don't GET me started) and prepared in a hurry without the aid of an attorney because of the decedent's medical condition, and granted, it's not general knowledge that convicted felons can't serve as executors. But if they had gone to an estate planning attorney, this hiccup could have been avoided.
As always, the above is legal information, not legal advice, and it's based on Texas law because I'm a Texas lawyer. Each situation is unique, so please consult an experienced estate planning and probate attorney if you have questions about yours.
I hear this from callers every couple of months. Usually it stems from a house that's been in the family for a couple of generations where, for example, Granddad died and nobody ever did a probate (because Granddad didn't have a will), now Grandma has died and "everybody knows my mom gets the house", etc. The most recent conversation I had about "quick-claim deeds" was with a former client whose grandfather had died, whose uncle lived with Grandma (who died a few years ago) in the house and whose mom was "supposed to get the house". Could I do the deed (so to speak) from uncle to mom? The rest of the story (there's always more) is that there are 4 other siblings and 5 kids from two siblings who died before Grandma died, and each of those people has a fractional interest in the house because - you guessed it - Grandma didn't have a will either.
First, it's "quitclaim deed", and second, Texas doesn't like quitclaim deeds because they only give the interest that the grantor has - meaning that I could deed you "all my right, title and interest in the Eiffel Tower" and you would get nothing. It's really hard to rely on a quitclaim deed to protect your interest in real property. On the above facts, a quitclaim deed would only give the uncle's interest in the house to Mom, and the 9 other people who inherited a fractional interest could each come in and demand their interest. Unfortunately, I had to tell the client that, given the value of the house (not much), it wouldn't be economically smart to try to clear up the title.
Moral: make sure you and your family members, especially in families with relational challenges, make written estate plans (wills, living trusts, transfer on death deeds, etc.). 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 about how your particular set of circumstances would play out, contact an experienced estate planning and probate attorney.
I exercise 5-6 days a week, alternating cardio and strength. I eat a healthy diet. 5 days ago, Easter morning, I had a heart attack (specifically a NSTEMI - non-S-T elevated myocardial infarction). I'm recovering and even back at work, praise God and thanks to some terrific medical professionals. Here are a few things I've taken away from the experience.
1. Don't ignore the feeling that "something's not quite right". I woke up with a funny feeling in my chest. Tried to walk it off, but within about 5 minutes I knew this was not indigestion. Had I waited, the damage likely would have been much worse. As it was, I had 10 (count 'em, ten) stents placed in one of my arteries due to a complete blockage. But my wife got to run 2 red lights driving me to the hospital, so that was cool...
2. Don't drive to the hospital, call EMS. That's from my brother-in-law, the doctor. Got it, James!
3. Know where your important documents are - like medical powers of attorney (MPOAs) - so your agent can put his/her hands on them without delay.
4. GET YOUR ESTATE PLANNING DONE. All I could think of while lying on the table in the ER was, "I have to update my will...". Yes, the cobbler's children often have no shoes. It would have been okay regardless, but there are some things I want to revise.
5. If you've been diagnosed with elevated cholesterol, stay on your meds - this is probably what put off this heart attack as long as it did, that and exercise and eating well. I was diagnosed with high cholesterol at age 30 and have been on meds (off and on, mainly on) since then (I'm 61 years old). I spoke with 2 thirty-somethings in the 4 days after the heart attack, each of whom had recently been diagnosed with high cholesterol. I told them what my cardiologist told me: "This heart attack didn't start yesterday, it started 30 years ago."
6. Tell your people you love them. Early and often. Don't ever take family and friends for granted. I can't express how overwhelmed we are by the prayer chains, offers of help, meals, encouragement, and check-ins from folks we haven't seen in years but who contacted us for updates and to tell us they were praying for us. Thank you, thank you, thank you.
7. Love the Lord your God with all your heart, soul, mind and strength, and your neighbor as yourself. We were on the receiving end of the second greatest commandment because people obeyed the first and greatest commandment.
I'm doing well and getting used to the new medications that will be a part of my routine for the rest of this earthly life, and I'm looking forward to what's next. And a long bike ride soon. Thanks.
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.
Musings, observations, the occasional whineage and some funny stuff.