The worst part of my job is giving bad news to clients, especially when they are hurting from the loss of a spouse or loved one.

One of the most common pieces of bad news that I regularly must give is that a person no longer fully owns their home after their spouse passes away.

This situation is common in blended families where one or both spouses have children from a previous relationship, and the family neglected to do any estate planning by getting a will or some form of survivorship deed on their home.

When a person living in Texas dies without a will, the law states that they die intestate, and instead of a will or other document stating who owns the property next, Texas intestacy laws dictate ownership.

I think the simplest way to explain this is through a brief hypothetical scenario.

Howard has two adult kids from a previous marriage. He later marries Wanda, who also has two kids from a previous marriage. Together, they have one child and decide to purchase a new home together. Many years later, Howard passes away suddenly without any estate planning.

Wanda decides to sell the home she and Howard purchased and use the funds to purchase another home. Unfortunately for Wanda, she is only entitled to half of the money obtained from the sale of the home. She has the right to remain in the home as long as she chooses to live there and the adult children cannot force her out, but Wanda is only entitled under the law to half of the sale proceeds.

When a married couple purchases a home together in Texas, each spouse owns their share of the community property, which is one-half each. Under Texas intestacy laws, Howard’s three children are entitled to his community property, which is his half of the home.

It’s a bad situation for the surviving spouse and is all too common. The best way to avoid these situations is through proper planning.

Remember, estate planning is not just for the wealthy. Ensure your loved ones are cared for by setting up a proper Texas will and other estate planning measures.

Unfortunately, a person may hit a point where they no longer have the ability to make medical decisions for themselves. This is where the Medical Power of Attorney comes in.

In a Medical Power of Attorney, which I often call an MPOA, the person signing (called the principal) designates an agent to have the authority to make medical decisions for them if they cannot. Either two witnesses or a notary is necessary to make the document valid.

The requirements for being an agent are simple. Any adult who is of sound mind and is not involved in your health care, such as a health care provider, nursing home administrator, or their employees may serve as agent.

This does not mean that the agent has the power to make your medical decisions immediately. An MPOA is generally only active when the principal is no longer able to make medical decisions for themselves, and that condition will need to be certified by a doctor, generally in writing.

The agent will then only have the authority to make medical decisions until the principal can make them again.

 An MPOA is different from a Directive to Physicians (also called a living will) and a Durable Power of Attorney in that it hands control over to your agent. However, the MPOA can be used in conjunction with a Directive to Physicians. A Durable Power of Attorney deals with property and financial items and cannot interfere with medical decisions. I’ll discuss these later.

Lastly, the MPOA lasts until it is revoked by the principal if they have capacity to do so, or until it reaches a termination date specified in the document, but the date inclusion is somewhat rare, and I generally do not recommend it.

Having an MPOA as part of your estate plan is not just recommended, it is absolutely necessary to plan for a secure future.  

Many people know what a will is, even if most do not have one. Some have seen video wills on television where a wealthy relative leaves them millions by saying so on an old VHS tape shown in an old lawyer’s imposing office. Others’ idea of a will is to purchase a fill-in-the-blank form from a dubious online source because they don’t think they need to pay a lawyer just to divvy up their things.

Simply put, a will is a written legal document which upholds a person’s intentions after they pass away when offered to a court for probate (which I will discuss in a future post). However, the fast-and-loose approach with Wills simply does not work in Texas. Our beloved Lone Star State’s laws require strict compliance for wills, which leaves little room for error.

The person making the will can choose to give specific items or general gifts such as money or things, or just let it all pass equally or in percentages to specific people or organizations called beneficiaries. Wills are powerful documents with a lot of flexibility in how things are distributed after one’s death.

Changing a will after it is made is not simple. Merely crossing out a gift to a family member that annoyed you during the holidays or scribbling things in the margin generally will not be effective to change the will. A will can be modified by an addendum called a codicil, but that can make the will somewhat inconsistent. Inconsistencies in wills can lead to probate litigation, which is a polite legal way of describing a big and expensive family courtroom battle often worthy of daytime television.

As a general rule, a will should be updated after a family event such as having children, children graduating high school or college, or a spouse or child passing away. I prefer to review estate plans every five years or after family changes and events for potential updates.

Many estate planning attorneys, myself included, prefer to just draft a new will since we no longer use typewriters to draft our legal documents and the extra time to change it is negligible. When preparing estate documents, simple and concise is always better if it is an option.

If a person dies without a will, or their will is found to be invalid, the person is intestate, and state law then dictates those that get the late person’s things and money. Most people think that if a married person dies, their surviving spouse gets everything, but that is often not true. Also, blended families are very common, and Texas intestacy laws provide for the late spouse’s children if they are not also those of the surviving spouse. I’ve known many people to be very surprised and offended by this legal reality, but that generally occurs when their spouse has already gone on to their great rewards.

However, if a person decides to do a full estate plan, it is altogether possible that a probate will be unnecessary, and the will serves as a catch-all backup document. It is possible for real property, bank accounts, and life insurance policies to all pass without court intervention, and that avenue can offer significant savings compared to the cost of probate and far less intervention from the family.

Get started on your estate plan today by giving me a call or sending me an email.

Unfortunately, we live in a world where scams are everywhere. Some of these scams can be nothing but incorrect information from a “news” site that is actually someone’s blog. Others can be significantly more harmful.

The vast majority of calls to my cell phone these days are recordings trying to sell me on something that very likely doesn’t exist. Many scams, however, exist solely to prey on the elderly. This is not new, but it can cause a lot of damage to an elderly person on a fixed income.

An older scam has reared its ugly head again recently, simply called “the grandparent scam,” in which the caller calls an elderly person and pretends to be the person’s grandchild. Generally, they say “Hi Grandma, do you know who this is?” Once the elderly person responds with a grandchild’s name, the scammer then creates some form of sob story and asks for money.

The one I’ve heard of within the last few days is a fake grandchild asking for bail money because his mother simply can’t find out, though in the past it’s been for overdue rent or a payment for car repairs.

Some of the other popular scams involve Medicare or health insurance, counterfeit prescription drugs, funeral and cemetery fake debt claims (which, if an estate is probated in a timely manner, this should not be an issue), and many other horrendous schemes.

If you’re lucky enough to have an elderly family member still in your life, please take the time to discuss these schemes and make sure that they are aware of these potential methods that scammers will use. Also, banks will generally not call a person out of the blue and ask for your account or Social Security Numbers, though many will ask for your birthdate.

So, call your elderly parents or grandparents, don’t use the “do you know who this is” line, and help ensure they are aware of these threats.

For more information, read the full article from the National Council on Aging at https://www.ncoa.org/economic-security/money-management/scams-security/top-10-scams-targeting-seniors/.

If you’ve browsed this website at all, you’ll notice that one of my main themes is planning. I say it repeatedly, because there is absolutely no substitute for proper planning, and a lack of planning can become quite problematic for all involved.

I regularly get clients who find themselves in an uncomfortable situation in which they have little control, because they or their loved ones chose to try and take an easy way out and bypass getting a lawyer to handle their affairs.

There are plenty of form wills online, that will probably be more difficult (and often, more costly) to probate, if they are even valid at all. Some folks believe that they can do their own will themselves and save a few hundred dollars. However, each of those can pose immense issues for their loved ones.

If a will is not valid, we must do an intestate administration of a person’s estate. This means that instead of the person’s wishes being carried out, Texas law dictates where everything goes.

The same can be said for business creation and management as well. Without some form of business structure and the subsequent organizational documents, a business owner’s personal assets could be at risk from attacks from creditors and others through lawsuits.

Ultimately, by the time someone sues, a loved one passes away or gets dementia and no longer has capacity to sign documents, it’s likely too late to adequately make protective changes. This does not mean that a favorable outcome is out of reach but is far from a sure thing.

Protect yourself, your family, and your livelihood with legal planning.

Question: We need a will. Why do you keep talking about an estate plan?

There’s a lot more to planning for the inevitable than just a will. According to the AARP, roughly 60 percent of Americans do not have a will, which is a shame because of how useful a will can be.

However, when I do an estate plan for a client, it also includes Power of Attorney documents for both medical issues and property issues, a declaration of guardianship preference, HIPAA release, and more.

An estate plan isn’t just for when someone goes on to their great rewards. Rather, it should include planning for future medical issues, aging problems, and so on. It empowers the people you love and trust to make the decisions that you need.

We can also discuss probate and ways to potentially avoid probate, as many assets can be structured to pass without court intervention, including real property. If structured properly, the will may not even have to be probated and can merely serve as a catch-all. Also, having an estate plan can keep families out of disagreements that can destroy relationships forever.

While probate is often a straightforward process, structuring things to pass outside of probate can not only save money on court costs and attorneys’ fees but also make the process of dealing with asset transfer during a period of extreme grief.

Many people simply fail to make an estate plan because they just do not get around to it. If you’re looking for a New Year’s resolution, this is an easily attainable one that can have significant benefits in the future. To prioritize your family and future, give me a call to discuss your options.

I decided to open Shooter Law, PLLC after discovering that litigation was not my passion, which would have come as an extreme surprise to my younger self. Rather, I wanted to help my clients build for the future rather than fight over the pieces.

Starting a business is quite nerve-wracking. There are so many things to think about; do; prepare for; and spend money on in preparation. Our legal climate can also make potential business owners think twice about opening their doors.

I’ve never been one to take the easy way out on anything, whether it is about school or career, because I believe preparation and planning is the right way to work toward success. Now, that’s what I do for a living for my clients.

Thanks for visiting, and please check back in the future for further discussions on business and estate planning law.