KalishLawTexas' legal blog The Woodlands

In previous blog posts, I have written about resources that are available to help elder family members.   The previous blog posts discussed how to best communicate, how to find AARP resources, hospice care, Meals on Wheels, Alzheimer Resources, and contained other important links. Another online resources is the web publishing company Assisted Living Today.  

After the publication of the last blog post, a reader who works with Assisted Living Today (an online web publishing company) contacted me and gave me permission to share the informational guides on that website with our readers.

 In September, 2011, the site posted an infographic about nursing home closures in the U.S. which shows a visual breakdown of the impact of the growing elderly population and diminishing available nursing homes.

That site contains a lot of information, including an  Assisted Living Care Guide

And additional guides:

• Memory Care Guide
• Nursing Home Guide
• Care Home Guide
• Independent Living Guide

Decisions regarding a loved one's care are difficult to make and the choices and options may seem overwhelming. Having access to information and resources is important in making the best choices.

Thank you to Katelyn Roberts, Assisted Living Today.  Disclaimer: Kalish Law Office is not associated with Assisted Living Today and did not receive any compensation for this blog post.  Kalish Law Office does not endorse Assisted Living Today and has not reviewed the content of Assisted Living Today for accuracy.  This blog post is merely presented as an informational option to assist our readers in gathering information.

Kalish Law Office is located in The Woodlands, Texas, north of Houston.   “Passionate, Professional and Personal. We Make the Difference.” Since 1984  www.kalishlawtexas.com  281-363-3700

When someone has a long, serious, or terminal illness, it may be necessary to make non-traditional arrangements.  Some law firms are willing to send a lawyer or paralegal to visit an individual who is in a hospital or nursing home or is unable to leave their house.  This allows the person who is ill to meet with a lawyer to draw up a will, powers of attorney or other documents.

Persons who are ill or recovering may be unable to fully relax if they are constantly worried about legal details.

If you or someone close to you needs this type of assistance, here are some important things to keep in mind:

1.   When looking for a firm to help you in this way, choose an attorney who is familiar with wills, trusts, and probate law, and is in your geographic area. 

2.   Call or email the firm to ask about these services

3.   Be aware that there may be an additional fee for this travel, and ask about it up front.

4.   If any documents are going to need witnesses, you may need to provide the witnesses. There are certain legal restrictions as to who will be allowed to serve as witnesses.  (In general- do not plan on using anyone who has a financial interest in the person’s estate, or who is a health care worker in a facility treating them).

5.   Be courteous! If the person who is ill is affected with something that is or might be contagious the legal staff has a right to know before agreeing to come.

6.   Try to make these appointments as much as advance as possible, especially during the holiday season.

7.   Understand that the attorney’s “real client” will be the person who is having the will drawn up, and the attorney owes that client a duty.

8.   Most importantly:  a person who is going to sign a legal document must have what is called “legal capacity”. They have to understand what they are doing. If they are extremely ill or under heavy medication, it may be already be too late to sign a will or other legal document.  If that is the case, an attorney can explain what other options are available, or how the person’s affairs can legally be handled. 

Many times throughout the years I have heard people say that their loved one who already passed could not have a will drawn up because they didn’t feel well enough to travel to a law office.  That is sad, especially if the deceased spent his/her last weeks worrying about something that could have been remedied.   Remember: as long as the person has the mental capacity necessary, the inability to travel does not necessarily have to prevent him/her from being able to put last wishes into effect.

The attorneys at Kalish Law Office have been representing clients in the areas of wills, trusts, and probate for over 27 years.   We are located north of Houston, Texas in The Woodlands and can be contacted at  http://www.kalishlawtexas.com 281-363-3700.

Caring for aging parents presents a variety of challenges. Due to changing times and financial concerns, it is more important than ever to have a plan.  Here are some situations in which you may find yourself:

1. Your parent(s) have planned for their retirement years and have adequate assets, and presently do not need any assistance with day-to-day activities or finances, but you are beginning to be concerned for the future.  
2. Your parents(s) have some resources, and maybe even have a plan, but you don't know the details and believe they may run out of assets while having serious medical needs.  
3. Your parent(s) have no assets, very limited assets, or adequate assets but poor physical health and you are definitely going to need to be involved with their physical and/or financial care.

 Here are some challenges that may arise:

1.      Siblings or Lack of Siblings:  If you have siblings, there may be disagreement between you as to how to handle the situation. It is also common that parents fear showing favoritism and so they seek to avoid naming an executor, granting a power of attorney, and so on, even if they feel they need to.   Siblings may avoid discussing the subject with the parents, or with each other, for fear of seeming dominating, or greedy.  “Only” children have a different set of problems, especially when a parent lives far away, and even more so if the parent is alone.  Onlies have no siblings to lean on or to ask for help and so they are often at a loss as to how to negotiate a parent’s aging issues.

2.      Trust issues:  There may be longstanding trust issues between parent and child.  Or a reluctance on the part of the parent to see the child as a capable adult.  There are also some physical ramifications of aging in some people, such as early Alzheimer’s disease and other brain-related conditions, that actually cause a lack of trust, or outright paranoia.  It is therefore difficult or impossible to have a meaningful dialogue about health and financial issues with a person who cannot trust.

3.      Fear of the loss of independence leading to procrastination:  Older adults often find that it is difficult to even discuss anything that has to do with a loss of independence.   This often leads to procrastination about planning for the future.  Middle-aged or younger people have difficulty with this, get frustrated and sometimes feel that getting aggressive about decision-making is the only option. This can lead to even more resistance on the part of the older adult.

What Can you Do and How Can an Attorney Help?

1. If your parent is willing, you can help him/her find a qualified estate planning attorney or elder law attorney.  Your level of involvement will depend on your parent’s physical health and willingness/ability to be involved in such discussions.  Your “help” may consist of nothing more than finding an appropriate attorney and giving the name and phone number to your parent, and/or driving him/her to the appointment and sitting in the waiting room.   Your parent may also request more or less involvement from you than what you feel comfortable giving but having some knowledge about the situation may relieve some of your worry.
2. You can see an attorney yourself.  If you have concerns and want help with how to deal with the situation of an aging parent, you can see an attorney on your own. The attorney will guide you through the most common legal concerns that arise in these situations; for example:   What are general powers of attorney and is one recommended?  What are the considerations for health care powers of attorney and other related documents?  What about medicare / Medicaid planning?   What options are available for early distribution of real property or personal property to beneficiaries and what are some possible problems with this strategy?   Is it desirable to try to avoid probate?
3. It is often easier to discuss difficult issues in front of a third party. Whether the third party is an attorney, financial planner, family doctor or therapist, people often find that the professional office is a “safe place” to respectfully voice their concerns, questions and fears.
4. An attorney can guide you to other resources.   An attorney can help you find available social services, literature, websites, and other professionals that are beneficial to the journey that you are on with your parent.   Your parent’s situation may require a “team effort” and a qualified elder care attorney can be part of that team.

Kalish Law Office in The Woodlands / Spring Texas has been helping older adults and their families with estate planning issues since 1984.  We are passionate about assisting our clients in this legally and emotionally difficult area in a competent and respectful manner.  We look forward to assisting you and your family with creating a viable future plan to ease some of the inevitable concerns and potential conflicts that arise in this area of law.  281-363-3700

Adoption of an adult can be a fairly straightforward process.   The adoptee’s biological parents do not need to be notified of the adoption and are not entitled to have a voice in the proceedings.

There are many reasons to proceed with a formal adoption, even after the “child” reaches adulthood.  The most common situation is one in which a stepparent has wanted to adopt the child but has not been able to get the approval of the biological parent.  At the time the stepchild turns 18, the papers for stepparent adoption can be filed without notice to the biological parent.

Waiting until a child turns 18 for adoption works quite well in cases where the biological parent has a lifestyle that is unhealthy for the child.   When a biological parent is unstable or violent, it is often unadvisable to contact the biological parent because it may encourage him/her to try to reenter the child’s life, bringing the chaos and danger along for the ride.  Waiting a few extra years can turn a nail-biting situation into a positive and happy one, and decrease the risk of drama or danger.

Some adult adoptees may be well beyond their 18^th birthday at the time of the adoption.  Some of these situations involve stepfamilies, others involve “just like family” groups who want to make their relationship a formal and legal one.   These adoptions are done for emotional reasons, and the reward is well worth it.

Adoption creates the parent-child relationship under the law. As a practical matter, this affects the parties’ abilities to inherit to and from each other. It also affects next-of-kin issues in health care decision making.   Of course, there are other ways to accomplish inheritance goals and grant powers of attorney through proper estate planning but adult adoption will accomplish some of these goals plus satisfy the emotional need for people to be legally connected forever.

A name change may or may not be part of an adult adoption, but if it is desired, it can be accomplished at the same time.

An adult adoption will not be granted by a judge if it appears that it is being sought to defraud creditors or avoid responsibilities under the law.  It may not be granted if the judge believes that someone is being taken advantage of (the judge will look closely at cases in which one of the parties is or may be disabled, elderly, or under duress).   An adult adoption will not grant benefits under U.S. immigration law.

In order to complete the adoption, a petition will need to be filed in family court and there will be a hearing.

If you considering adopting an adult or you are an adult who is thinking of consenting to being adopted, you should carefully consider how every aspect of your life will be affected, how the family will be affected, and be certain that you understand all of the legalities and steps involved in the process.

The Kalish Law Office has been helping families for over 26 years with adult adoptions, child adoptions, family law and estate planning.   www.kalishlawtexas.com  281-363-3700

You may think that it isn’t really worth your trouble to get a will.  Here are some reasons why people usually don’t think they need one:

1. I don’t really have very much to pass on
2. I’m young, and in college, or just starting out
3. Everything will go to my spouse anyway
4. I don’t have any minor children

Even if you are in one of the situations listed above, you still should have a simple will.

Your estate may not be large, but you probably have at least one bank account, one car, a home, or some personal property such as jewelry, appliances, electronics, pets and such.   If you own ANYTHING that is in your name or you have anything in your possession, (or you are about to), you should have a properly drafted and executed will.  Once filed and approved by the probate court, the person of your choice will have the legal authority to manage your estate, for example:

1.      To enter the premises of your property

2.      To open your safe deposit box

3.      To distribute your bank accounts

4.      To transfer the title of your car, boat or home to the person or persons that you choose

5.      To care for your property and manage it

Of course, not every will needs to be probated. But it is always best to have a valid will available.  Then, when you die (and we all will someday!), probate can be filed if it is needed.  If not, no big deal. But if it is needed, it’s too late to do anything about it once you’re gone!  

Here are some situations that you DON’T want to happen, but could, if you don’t have a will:

1.      Your best friend wants to take your pet and that was your agreement but your “heirs at law” (think of them as relatives who get to make the decisions for you because you didn’t have a will) won’t allow it.

2.      No one can prove their entitlement to your bank account and so it ends up as “unclaimed property” of the State of Texas.

3.      Your family takes a home or other property for themselves and your live-in partner of several years has no say in the matter.

If you have a minor child, please, please, please have a will!!  You should ALWAYS have guardianship and trust provisions for your minor child.  I have blogged about this before because it is so very important!

Now, who should you get to draft your will?  I believe that because this is such an important document, it is worth having an attorney draft it for you.  I have reviewed many wills that people drafted on their own, or with the help of forms.  Some of them have been adequate to file with probate court, some have not.  By the way, if the will “fails” in some way by being legally inadequate in the drafting or in the way it is signed and witnessed, it may prove useless.  In that case, the estate will be treated as “intestate” (without a will).  Here come those “heirs at law” again making decisions for you that you wanted to make for yourself!

When looking for a lawyer to help you with your will, choose a reputable firm with experience.   Choose a firm that will sit down with you and discuss your needs, and answer your questions.  Choose lawyers that will help you understand what you are signing in plain English, or in your own language if you don’t speak English well.  Choose a law firm that will schedule the signing of the will for you, with the proper number of witnesses and a notary.   

I just happen to know of a firm like that…..

Kalish Law Office is proud to provide such services to our clients.   For your initial consultation, we have evening appointments or telephone consults available by appointment.  We also have an attorney and paralegal that are fluent in Spanish.

There is no “legal separation” in Texas.  If your will names your spouse as a beneficiary and you die before your divorce is final, your spouse will be able to inherit from you.  This is true no matter how bitter or nasty the divorce, how long the separation, or how “close” you were to finalizing it.

If you are getting a divorce now, or are separated and planning to file, you should carefully consider whether you need to have your will updated right away.

Once your divorce is final, any bequests to your ex-spouse will be void under Texas law.  Even so, it is always a good idea to have a new will drawn up post-divorce that is current and up-to-date.  (On the other hand, if you still want your ex-spouse to inherit from you after your divorce you will need to sign a new post-divorce will stating that you are bequeathing certain property to your ex-spouse.)

A wills and estate planning attorney can advise you about the best options for dealing with these issues while your family situation is changing.  It is especially important to consider doing this if you have children from a previous relationship and want to be sure that they are provided for in the event of your death “pre-divorce.”

If you know the marriage is about to be over, you should also consider updating any heath care powers of attorney (sometimes called “living wills”) to avoid confusion and conflict. Do you really want someone who is angry and bitter to have legal authority over you or your medical records in an emergency situation?   

Although unpleasant to think about, it is advisable to consider all of your options and be sure that your wishes will be respected and that you, your estate, and your beneficiaries are protected.

A will must be probated in order to be declared valid. A will that is sitting in a drawer at home won't be of any help to the beneficiaries!

Probate is the process of proving the will in court. The "Applicant" (the person who filed for the probate) offers testimony. The Applicant is usually also the Executor. The judge then issues an order declaring it to be a "valid" will.

A female Executor is known as an "Executrix."

If the will names the Executor/Executrix as an "Independent" one, that means that there will be minimal involvement by the court. This makes the probate process more efficient and less costly. If the will does not specify, in some cases, the Executor can still ask for, and be granted, an Independent Administration.

Once the will has been probated and the Letters Testamentary issued, it is time for the Executor to gather the assets, pay the debts and then distribute the remaining property.

If you have been appointed as Executor/Executrix and have been to your final hearing, you can use this general checklist to keep you on target.

1.  Be sure to order enough copies of the Letters Testamentary and Death Certificates.  You will usually need to part with one copy of each in order to transfer each bank account, retirement account, investment account, and life insurance policy.  You can contact the various benefit plans, financial institutions, and insurance companies in advance to have necessary packages with transfer forms sent to you.

2.  Be prompt with any documents that must be filed with the probate court after the final hearing. If you have an Independent Administration, there will be minimal paperwork. If you have a Dependent Administration, there will be much more work to do. There are strict deadlines for these actions, which will include some or all of the following; preparing an Inventory and Appraisement, giving proper notice to creditors and beneficiaries, and filing certain affidavits. If you have been represented by a lawyer in the case, communicate with your attorney about the details of what you will need to complete.

3.  Once you get your Letters Testamentary, you may need to set up a bank account for the estate. You will place the funds that belong to the estate in this account, and will make disbursements from it.  Get a Federal Tax ID number for the estate, when indicated. (if you are the surviving spouse and sole beneficiary some of this may not apply to you.)

4.  Be sure to pay the creditors of the estate prior to making final distributions to the beneficiaries.   You may be able to negotiate certain debts of the estate.  Review credit card charges and medical bills to be sure they are accurate.

5.  Get documents prepared to transfer title to property. This includes items such as real estate, vehicles and boats.  File these documents with the proper governmental authority and be sure that the way you are handling it shows a "clear title" to the ultimate beneficiary of the property.

6.  Finally, be sure to keep good records, even if you are the estate's sole beneficiary. 

If you need help, don't hesitate to ask your attorney, accountant, or banker to assist you.