The photo to the left is the Jacobson Law Firm crew, all gloved and masked up, per our COVID-19 protocol when clients come in to execute their estate planning documents. I'm immensely proud of all of them. I also had my first probate hearing via Zoom this afternoon, proving up a lost will by video. It was a little awkward but it worked. Well. Judge Vasquez in Probate Court 2 has the process down pat. We've filed half a dozen documents that usually require notarized signatures but we've used the statutorily authorized unsworn declaration language instead (it's been there for years but hardly anybody ever used it in court proceedings before now).
What I'm finding is that the more of the "standard practices" that get waived for practical reasons during this time, the easier the process is. Which makes me wonder: when COVID/stay home/wear PPE, etc. is over, why not institute a new test for what's necessary? Seriously, shouldn't the test for whether we re-institute some process be that the person wanting to do so has to prove it's necessary and not just "the way we've always done it"? Because the ingenuity, practicality and creativity of the American people in finding work-arounds that actually work - a long tradition of this great nation - has once again triumphed. We should take pride in that and remind ourselves that "Because" is never a good answer to, "Why do we do it this way?".
Stay safe, wash those hands, be smart and be creative - it's the American way.
My friend, Colonel (ret) Mary V. Perry, was the defense counsel in a court martial I tried at Howard AB, Panama in the late 1980s (we were both captains at the time). In her closing argument, trying to get the jury to reject some portion of my recommended sentence because there was no evidence for my argument that it would deter others from engaging in the same conduct, she told the joke about a guy seeing another guy standing on a corner in the middle of downtown, snapping his fingers and looking around. First guy says to second guy, "Waddya doin', bud?"
Second guy: "Keeping the elephants away"
First guy: "Elephants?! There aren't any elephants within 1000 miles of here!"
Second guy: "See? It's working!"
Well, it didn't work for Mary Perry's client (as I recall, he got the Big Chicken Dinner and reduction to Airman Basic, but she managed to kick my rear a couple of other times).
Why do I bring this up thirty-something years later? Well, I'm not sure it's a great analogy, but part of me thinks all the hoopla and hullabaloo over the past couple of days about local, state and national declarations of emergency, prohibiting large meetings, etc. to combat the COVID-19 pandemic might involve some finger-snapping. If this thing fizzles out, how will we know it wouldn't have anyway? Are these things reasonable precautions or wild overreactions? And why does San Antonio allow up to 500 people - FIVE HUNDRED PEOPLE - to gather when Houston limits it to 250 people? This is the sort of inconsistency that makes me suspicious that the people in charge are, at some level, just makin' stuff up as they go. All that said, I'm happy I'm not in charge. Take it seriously, wash your hands, cough into your elbow, wipe the doorknob, don't hang around with sick people. And for goodness' sake, save some toilet paper for the next person.
We do a bunch of estate planning here at the Jacobson Law Firm, and when I tell people what I do, most think wills, powers of attorney (POAs), living wills, trusts, etc., in case (in case?) they die or are incapacitated. All that is true; however, there's one document a lot of parents and grandparents don't think about until it's too late: a POA In Loco Parentis. It does seem like you're giving somebody the power to act like a crazy parent, but although as a practical matter you might do that, it actually means "in the place of a parent".
Hypothetically, your kids ask your wife if she will come watch your grandchild, Apple-Of-Her-Eye, for a week while they go on a cruise. Said grandmother - we'll call her GiGi - agrees, and heads off to Salt Cellar, Texas to entertain the little guy. You, being - I dunno, maybe an estate planning lawyer - stay home and work. Right before the newly liberated mom and hubby head off for their adventure, you get a text message from GiGi asking what happens if AOHE gets sick and she has to take him to the doctor. It is at this point that the "cobbler's children have no shoes" meme starts playing in your head and you ask yourself, "Why the heck didn't I think about doing a POA In Loco Parentis before now?!"
The POA-ILP (don't use that in front of a lawyer, I just made it up) authorizes the named person to do any act that a parent could legally do on behalf of the parent's minor child. It can cover everything from medical care to registering for school to giving consent for field trips, etc., and it gives both the parents and the POA-ILP holder a great sense of relief and security that while the parents are unavailable, somebody's able to watch out for the minor's best interests. There's no need to say why the parents are out of pocket. It can be for as long or as short a period as necessary or convenient (well, when the minor turns 18 it terminates). Caveat: it must be signed in front of a notary and should ideally have both parents' signatures on it.
By the way, everything in our hypothetical turns out okay, but remember - not doing a POA-ILP CAN result in somebody acting "like a crazy parent". Bad thing. Don't do it.
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 find yourself needing to have somebody take care of your tyke or tykes, please contact an experienced estate planning lawyer and discuss your needs. But don't ask him/her if he/she has ever forgotten to do one for his/her own kids...
"Here's a stupid question..." - I hear this too often from my business clients. At the Jacobson Law Firm, we've helped form hundreds of business entities and we serve as Registered Agent for many of them. This means that I get to break the bad news when one of those businesses gets sued, but it also means I get to spend time getting to know about my clients' businesses - what's important to them and their employees, what they want out of being a business owner, how they care for their families, what sort of succession plans they've made. I love this part of the practice, because it tracks with our motto: "Helping People For Life".
One thing I never get tired of saying is that there are lots of ignorant questions when it comes to running a business and doing your estate planning, but there are no "stupid questions". A lot of this stuff is non-intuitive, meaning there's no reason the client should know the answer, so why not ask? I will also tell you that I would ALWAYS rather have a client call and say, "I'm considering doing x for my family/business - what do you think?", than have one call and say, "I just did y - that's okay, right?...".
Having a law practice is about building relationships. If your lawyer makes you feel stupid for asking a question, get another lawyer. A good lawyer wants nothing more than to have clients understand what's happening with their matter, be able to participate in decision-making, feel as though their concerns have been heard - and tell their family and friends, "I have a great lawyer - give him/her a call."
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 your business, contact an experienced business lawyer and ASK. And if you're a small business owner, it's doubly important that you have a lawyer who will integrate your business succession plan with your estate planning.
Over the 32 years of the Jacobson Law Firm's existence, we have prepared thousands of advance directives, a term that includes financial powers of attorney (FPOAs), medical powers of attorney, directives to physicians and other documents which are often designed to activate when the client isn't able to speak for himself/herself. A client chooses whether the (FPOA) will be effective immediately or only "upon my disability or incapacity". If the client chooses the latter, in order for the designated agent to be able to act under the FPOA, a physician will have to say that person is disabled or incapacitated to such an extent that the person can't manage his/her own financial affairs. Sounds pretty straightforward, right? Well, normally...
Recently, the children of a long-time client contacted us to say he had just had a massive stroke, could not move most of his right side and could not speak, and they needed to implement his FPOA so they could take care of his bills, etc. We prepared a statement for the treating physician at the hospital to sign, stating that he was incapacitated and couldn't manage his financial affairs. The physician refused to sign the statement. The kids then asked the physician at the rehab center to which their dad had been transferred, who likewise refused to certify that this person who cannot move or speak was "incapacitated". What to do?
Well, we figured that if his doctors say he's not incapacitated, he can execute a new FPOA that gives his kids the immediate authority to act on his behalf. The challenge was how to get him to sign the new FPOA. In Texas, any adult can execute a document by "making his mark" on it. In frontier days, when a lot of people couldn't read or write, "making one's mark" was a way for an illiterate adult to sign legal documents. We asked his children whether he could hold a pen, and they affirmed that he was nominally able to hold a pen. So, we prepared a new FPOA, the kids explained to him what he was doing, and had him make his mark on it, with two witnesses and a notary signing as well. It's a very small, indecipherable mark, but so far, nobody has refused to accept this FPOA. There is, as they say, more than one way to skin a cat.
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 need more information on advance directives, please contact an experienced Estate Planning attorney to discuss your particular circumstances.
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.
Musings, observations, the occasional whineage and some funny stuff.