KalishLawTexas' legal blog The Woodlands

EVERY parent who has minor children should have a current, valid will.    

Your will should state who you want to care for your child if you are no longer around.  In many cases, your first choice of guardian will be the child’s other parent (or stepparent).

In addition, it is always best to have an alternate guardian as well, just in case the first guardian is unwilling or unable to take over the child’s care. 

When choosing a guardian, consider relationship that the person has with your child, their lifestyle and geographic location. For instance, if your minor child is in the last few years of high school in Houston, Texas, it may not be a good idea to choose a guardian in Minnesota.   The best-case scenario will be one in which the child’s school life is disrupted as little as possible after a tragic loss.

The “bachelor uncle or clueless aunt” has been a popular theme in TV sitcoms and movies.   These stories typically involve a man or woman who has no clue how to even speak to a child suddenly becoming a full-blown parent overnight.  Plus, this “instant parenthood” is usually a total surprise.  While hearing an adult say “Gee, what do you feed them?” can be hilarious on TV, it probably wouldn’t be so great in real life.  Therefore, I suggest that you always ask the person who you are naming as guardian if s/he would be willing to take on the responsibility of child-rearing.  

In addition to being a lot of responsibility, raising a child is expensive.  You are going to want to make sure that whatever you have (whether your wealth is large or small) is available for your child’s needs.   The best way to do this is to give that property or money to your child, with a Trustee looking over it.   That can easily be accomplished in your will.  

If you have a minor child, you should have a will.  Whether you are married or single, a young parent or a more mature one, wealthy or not, you should have a will. If your child is one day old or 17 ½ years old, do it! Don’t delay.     

 Kalish Law Office:  The Woodlands, Texas

Wills and Trusts, since 1984

After a will is drafted, things sometimes change.  When that happens, some people are tempted to  just write on the original will.  This is a very bad idea. This could make your entire will unacceptable for a later probate hearing, and your estate could be treated as if you died without a will.

If you do need to make a change, you should either a) have a codicil that is properly exectued and witnessed and reflects the changes or b) have a new will drafted and signed (depending on how major the changes are).

You should always keep your original will in a safe place free from stray writing, food, or coffee rings.  Don't doodle or write on it or allow anyone else to do so.

Don't unstaple the will or add pages to it.  

If you want to make notes on your will to show an attorney, make a xerox copy of the old will (preferably without unstapling it) and write on the copy. 

The more "pristine" the original document is, the less likely the document's authority will be questioned.

Kalish Law Office, The Woodlands, Texas    Estate Planning and Probate Law since 1984.

If you have (a) minor child(ren), you need to make provisions for their care in your Will.  

Guardianship provisions specify who you would like to raise your children in the event that something happens to you. 

I cannot emphasize this strongly enough, if you have a minor child do NOT put off this important step. 

Here are some common family situations, and how a guardianship can help deal with them:

1. The parents of the child are married to each other.  In the event that you and your spouse are the parents of the child, the two of you will want to talk to each other and agree on who you would like to raise the children if something happens to the two of you.  You should also have an alternate person (or married couple). Flexibility is important, as most people don’t update their wills yearly and you never know what someone’s the location, work situation or health situation will be in the future.
2. The parents of the child are divorced, or have never been married and both are involved in the child’s life.  Your last will and testament will most likely specify that your ex will raise the child if you are not around, and then will name alternates.
3. The parents of the child are not together and the child’s other parent is absent, irresponsible, or dangerous for the child to be around.  It is crucial that you make your wishes known and designate a guardian for your child. Your properly drafted and executed will gives the named guardian a leg to stand on when asking a judge to grant the guardianship of your child. (Which may or may not be granted, depending on the circumstances and evidence).  However, if you say or do nothing, your child could end up in a sad situation if you are not around.
4. Too many relatives want to raise your child.  A child who is well loved by many family members may end up feeling torn and feeling responsible for hurting the feelings of loved ones.  Your clear, unambiguous designation of a guardian will prevent this.
5. Your “logical” choices live in another state, or another country.  You may not want to even consider that your child could lose his/her friends, pets, school and neighborhood right after losing a parent.   Your written instructions in your will may help prevent that.
6. A properly executed will gives guidance to law enforcement and child protective services as to where a child should be placed immediately in case of emergency.

In many cases, the best guardian(s) for the child is a wonderful and responsible parent and friend, but not so great with financial matters. You can designate a separate person(s), bank or firm to be guardian of your child’s funds.

Having a valid, executed Texas will is one of the most important acts of love and concern that you can do for the benefit of your child.

The Will:  If you have a signed original will, you will need to keep it in a safe place.  The first impulse that most people have is to put it in a safe deposit box.  This does preserve the document, however it may create a problem if there is no one who is authorized to access the safe deposit box.   If you choose this option, it is best to name someone (in addition to your spouse) as a joint holder.    Having someone in addition to your spouse ensures that there will be a trusted person of your choosing who can get to the contents quickly in case something happens to you and your spouse together.  In the event that you do not have a joint holder, a court order will allow the will to be retrieved by a bank official, but this additional step will add unnecessary expense and delay.  Remember, the purpose of drafting a will and powers of attorney in the first place are to allow YOU to be the one who is directing the course of events and to SIMPLIFY the process.  

If you choose to keep your will at home, make sure that it is protected from fire or flood.  A safe is a logical choice for many people, but make sure that the safe is well hidden and kept away from high heat (not in a hot attic) and the document is protected from flooding (not on the floor in the closet in the laundry room). It is a good idea for your executor and alternate executor to know the location of your will. 

Filing the will in the county is not necessary, although some people still feel better doing so. If you choose this option you should make sure of two things: 1) the will should not contain full account numbers or private information that could be used in identity theft; and 2) if you update your will you need to file the updated will (or notice that you have updated the will) in order to avoid confusion later on.

Some attorneys do keep originals in their offices for their clients, while others do not.  If a will is kept at an attorney’s office it can be difficult to retrieve if the attorney dies, moves, merges with another firm or retires.  There also may be a risk of fire, flood or theft.

Don’t keep old, invalid wills around to confuse the situation.  You can also notify a previous attorney who has drafted a will for you that you are requesting that your old file and copies of the (now) invalid will be destroyed. 

Whether or not to give a copy of your will to your executor, trustee, alternates, and even your beneficiaries is an individual decision. 

The Power of Attorney for day-to-day business; Durable Power of Attorney for Health Care

These documents must also be kept safe and dry, and out of harm’s way.  However, it is even more crucial that they be found exactly when needed, with no delay.  If you are injured and unable to speak for yourself, you want the “agent” you have named to be on the job immediately, coordinating your health care options and possibly taking care of financial concerns.  For this reason, be sure that the person that you have named as your agent knows exactly where to find the originals of these documents. It is also a good idea for them to have a copy, because copies may be accepted in an emergency situation.

Kalish Law Office is located in The Woodlands Texas and assists clients in the areas of estate planning and probate.  281-363-3700  Since 1984.

WARNING!  Joining in the refinancing of a home previously owned by your spouse or significant other does not guarantee that you actually “own” part of the house.

Signing the Promissory Note DOES mean that you are legally responsible to pay the mortgage on the property. However, it does NOT mean that the property is automatically in your name, or that if your spouse dies you will automatically inherit all or part of the property.

Here is a specific example that could contain a nasty surprise waiting somewhere down the line:

Husband has three adult children by a previous marriage. He is divorced from Wife #1, and he owns his home, which is in his own name.   He then marries Wife #2.  

Husband and Wife #2 evaluate their joint financial situation.  They decide that it would be financially helpful to them if they were to refinance the home that they live in. They apply for, and are granted a new mortgage.  It is at a better interest rate, especially since Wife #2 is a co-borrower. Husband and Wife #2 both sign the refinance agreement, but there is no deed filed in the county records which gives part ownership of the home to Wife #2.

The couple goes along happily with their life.   Then, Husband dies suddenly, and without a will. 

Under Texas law, his prior children inherit the ownership of the home, since the deed is in his name and it is his separate property. 

Wife #2 does have a “life estate”, which means that she is allowed to live in the same home that her stepchildren now own. Under the paperwork she signed with the mortgage company, she is still obligated to pay the mortgage, but the home is not in her name and she cannot pass the home or any portion of it on to her own descendants. If she chooses to just walk away from the home, she is leaving behind the money that she and her deceased husband have already put into it, and her stepchildren don’t have to compensate her.

This is a sobering set of facts, but unfortunately it is very common.

It is very unlikely that the Husband in the example wanted this to happen.   It is more likely that he wanted Wife #2 to own 100% of the house upon his death. 

The situation could have been avoided in two ways. First of all, a properly drafted and filed deed would have protected Wife #2, because it would have given her immediate rights and ownership in the property.  It would have legally given her her own portion, regardless of whether the Husband lived or died. 

Secondly, the Husband could have had a valid will, which would have spelled out exactly what was to be done with his 50% upon his death. 

It is important for everyone to understand all of the consequences of refinancing property. It is especially when dealing with second marriages, stepfamily issues, and non-traditional families. Couples who are in same-sex partnerships and cannot legally marry each other and couples who are unsure of their "common law" status or choose not to marry can be especially vulnerable to these problems.  A timely legal consult can avoid serious problems and unpleasant surprises later on.

Kalish Law Office has been representing clients in family law and real estate law since 1984.  Located in The Woodlands, north of Houston, Texas.  281-363-3700.  www.kalishlawtexas.com

If you are in a committed, long-term relationship with someone, but aren’t legally married to that person, there are some things you should know about Texas law.

A person who dies without a will in Texas is said to have died “intestate” (without a testament).   There are certain laws that determine how the decedent’s property will be distributed.   These laws will be followed UNLESS the decedent has taken the time and trouble to create a valid will specifying otherwise.

This means that if you and your significant other are living together in a home, sharing possessions, sharing finances, and/or a business, you may suddenly find yourself “without” those things in your life that you have worked to build.  Or, you may find yourself spending time and money trying to prove and protect what is yours.

Let’s take an example:   Joe has three adult children from his previous marriage.  Joe has divorced Ann, his previous wife.  Joe meets Sue, they fall in love and move in to Joe’s home. They do not legally marry, nor does their relationship qualify as a “common law marriage” in the state of Texas.  Therefore, they are legally only two single persons living together.

The couple continues to live together for 17 years. During this time, they contribute time and energy to maintaining the home, commingle their finances, and share personal property.  

After 17 years of togetherness, Joe falls ill and is unable to speak for himself or set his affairs in order.   The first of many problems arises, because Sue does not have the legal authority to manage his health care.   

Joe dies after a short illness.  A few weeks after the funeral is over, one of Joe’s children calls Sue and tells her that they need to get together to “discuss Dad’s estate”.  Still reeling from the emotional shock of losing the man she loves, Sue now worries about what will happen to her financially.

Under Texas law, since Joe died without a will, and was an unmarried person with children from a prior relationship, the law says that his property will be divided among his children (or their descendants, if one or more of his children has predeceased him.)  Sue knows that Joe never intended her to have to deal with this stress. She knows that the deed to the home is in Joe’s name only and worries about where she will go if she has to move. She also doesn’t know how to prove which part of the furnishings and other personal property are “hers” and which are legally “his”.

This is a sad situation, but an avoidable one.  For the couple living together who has either chosen not to marry, (or is legally unable to marry), this is a very real risk.  

In a related example, suppose that Joe had never legally divorced Ann, his former wife, but had not lived with her or had any contact with her for 20 years.   Unfortunately for Sue, Ann would still be Joe’s legal wife at the time of Joe’s death and would be entitled to inherit as his surviving spouse.  (In addition, the home and some other assets may belong partially to her anyway as “community property” of the marriage.)

Worry over inheritance can also arise in non-romantic relationships, for example, between roommates or close friends who live together in a platonic setting, look out for each other, and share assets and responsibilities.  If no specific provisions are made between two people who rely on each other there may be problems for the survivor later on.  

Moral of the story?   Don’t leave your loved one unprotected!  Have a valid will that protects her/him!  And, while you are at it, think about signing a Healthcare Power of Attorney so that your loved one will have “rights” in the healthcare setting should something unforeseen happen to you.

If you are in a vulnerable situation, make sure that you understand your legal rights and that you take the responsibility to plan for your own future.

A visit to an estate planning attorney can help you decide the best way to handle such situations and how to make sure that you leave a clear, legally valid will for your family and loved ones to follow when you can no longer speak for yourself.

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.

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.