Elderly Law Issues

Ways to avoid formal probate. Losing a spouse doesn’t necessarily mean probate court!

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After losing their spouse, many people don’t contact an probate attorney because they believe that everything just goes to them immediately.  But this way of thinking may cause more harm down the road.  Nothing in life is absolute except death and taxes, so at least consult an attorney to make sure there is nothing you should do or to find out what your time limits are with regards to probate.  Here are a few cases where waiting caused more problems:

  1. Jane Doe dies and her husband Don doesn’t probate her will.  Four years pass, and then Don Doe dies.  Since Jane’s will was not probated within the 4 year statutes the only alternative is to probate as “muniment of title” to clear title to the house or dreamstimesmall_13989596.jpgcars.  In this case there is no formal probate of Jane’s estate which may create problems with certain asset at financial institutions and may force the beneficiaries to pay all debts prior to probating.
  2. Jane Doe dies and her will isn’t probated because her husband, Don Doe, doesn’t want to waste his money.  Years later  Don learns that there are assets in both of their names that need to be probated.  Jane’s will can not be probated after 4 years because Don is the one at fault for not probating.  Don goes to an attorney and finds out that since Jane had children from a prior marriage, they take her 1/2 instead of him.
  3. Sarah Jones dies and she does not have a will.  Four years pass, and Mike Jones tries to sell their house.  Just prior to closing on the house, Mike finds out that the house is still in both his and Sarah’s name.  Mike contacts an attorney to probate and must wait more than 30 days to get the probate finalized, so he loses the sale on the house.

As you can see there are many different situations that warrant consulting an attorney to ensure probate is not necessary after the death of a loved one.  While there are many different reasons that may take you into probate court, there are ways to avoid probate court such as:

When there is a will:

Muniment of Title – while this process requires you to file in probate court, you are not opening a formal administration so once the court signs an order you are done with the probate court.  So if you find that all the deceased person’s unsecured debts are paid and you just need to transfer title to the assets, have your attorney probate the will as a “muniment of title” which transfers title only and does not open a formal estate.

When there is no will:

Affidavit of Heirship – when there is no will, there is an informal process of having an “affidavit of heirship” prepared by an attorney and filed in the county real property records.  This is not a costly process and it will benefit the parties in the long run.  Don’t try to do one yourself, as mistakes will end up costing more in the long run. Do this now rather than later because witnesses may die, move away, not remember, etc.  This document will clear up title to property and vehicles so that the parties can move forward in life and not be held back when trying to sell such assets.

Determination of Heirship – This process is similar to the Affidavit of Heirship above, but it involves going to the probate court, having them appoint an attorney ad litem to verify the heirship information and signing an order on who the heirs are in an estate.  This process may be required of certain financial institutions that do not want to rely upon a “Affidavit of Heirship” and who may want the Judge to make a formal finding.

Small Estate Affidavit – This process is for very small estates under $75,000.00 (not counting exempt assets) or when trying to transfer the decedent’s homestead to their spouse.  The form is prepared and filed with the probate court.  The judge will then approve the Small Estate Affidavit to allow the transfer of assets to occur.  Keep in mind that this form will not transfer title to real property (other than the homestead), so if there is no spouse (so no homestead) or other rental real estate then this form won’t work.

 

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SURVIVING SPOUSE’S HOMESTEAD RIGHTS

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house
On the death of the husband or wife, leaving a spouse surviving, the homestead shall descend and vest in like manner as other real property of the deceased.” TX PROB CODE § 283. Also, the surviving spouse is entitled to retain a constitutional survivor’s homestead right for life or for so long as the survivor elects to use the homestead. This right is not affected by the deceased spouse conveying the property to a third party through their will.

Here are a few questions which are regularly asked with regards to surviving spouse’s homestead rights:

1. Can the deceased spouse’s administrator force the sale of the house?
Constitutional rights protect a homestead against forced sale and partition so long as the surviving spouse chooses to use and occupy the homestead. TX PROB. CODE § 284.

2. Does the surviving spouses rights end when move out of the property? Have they abandoned their homestead rights?

The surviving spouse’s right to occupy or use the homestead for life or for so long as the surviving spouse chooses to do so.   It is not required that the surviving spouse continuously reside in the property to be considered as using it.

3. Who is responsible for maintenance on the property?
The surviving spouse will be responsible for making repairs and generally maintaining the property, but the duty to repair does not go so far as to require that the property be maintained in the same condition that existed when the homestead right was originally established.

4. Who is responsible for the mortgage on the property?
The spouse is responsible for the mortgage interest and the heirs/beneficiaries is responsible for the mortgage principal. A purchase money lien is not subject to the homestead exemption, thus the property could be foreclosed upon default. TX PROP CODE § 41.001(b)(1).

5. Who is responsible for the insurance premiums on the property?
The surviving spouse is not responsible to insure the property against loss. Even if the surviving spouse did insure the property, the insurance proceeds upon fire or damage would be made to the surviving spouse and not to the heirs/beneficiaries. The heirs/beneficiaries (children) would be responsible to carry insurance on the property to preserve their asset.

6. Who is responsible for paying the taxes on the property? The heirs/beneficiaries are usually responsible for all tax payments, however, if the spouse or minor children retain a homestead right then they would be responsible for the property taxes.  The homestead is not exempt from forced sale to pay delinquent taxes.  TX PROP CODE § 41.001(b)(2).

Disclaimer: The content of this article is provided for informational purposes only and does not constitute legal advice.

Does a Transfer on Death deed interfere with spouse’s homestead right?

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I was recently asked a specific question as to how the Transfer on Death deed affects the spouses homestead rights.

Example: A party is married and they execute a transfer on death deed to their children on their separate property which is their homestead.

The deed would not displace the spouse at death because the homestead right is attached to the separate property and community property. Therefore, while the children might own the property upon their parent’s death, the spouse has the right to live in the house.

 

Understanding the Texas Medicaid Estate Recovery Program (MERP)

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The Texas Medicaid program pays almost half the cost of all nursing home and other long term care expenses.  So in March of 2005, Texas implemented the Medicaid Estate Recovery Program (MERP) to comply with federal laws.  This program allows the state to file a claim against the estate of a deceased Medicaid recipient, age 55 or older, who received payments for certain long-term care services.  Claims can include the cost of services, hospital care and prescription drugs paid for by Medicaid.  However, the state will not file claims in the following situations:

a)            where there are estates valued less than $10,000,

b)            where the costs were less than $3,000,

c)            where the cost of selling the property would be result in no value.

elderly_wf_gardenThe state will not file a claim when there is a surviving spouse, there is a surviving child under 21 years of age, there is a child who is blind or totally disabled, or where there is a an unmarried child living in the Medicaid recipient’s homestead for at least one year prior to the death.  The state also allows a hardship waiver to be filed in certain situations.

The State will not collect certain types of assets that fall outside a person’s estate.  Therefore it may be necessary to do your estate planning with consideration given to Medicaid rules.

The personal representative of an estate (executor or administrator) is required by law to give the State of Texas notice of Medicaid recipient’s death thereby allowing the state to file a claim.  Such a claim by the State of Texas is a Class 7 claim which is paid after funeral bills, administration expenses, secured claims, child support, taxes, and it is paid before all other creditors and before the beneficiaries are compensated.

The Department of Aging and Disability Services administers the MERP and they provide a wonderful guide for those with additional questions.

http://www.dads.state.tx.us/news_info/publications/brochures/DADS121_merp.html

Beware: Texas law does not require CPR in senior living facilities

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Earlier this month, the news reported on a 911 call that was taken by a nurse in California who refused to give emergency CPR assistance to a dying senior in her care.  The refusal of this nurse to assist a dying resident is nothing less than shocking, however, the facility was within its rights to refuse care.

In Texas, facilities, even licenses facilities such as those regulated by Adult Protective Services, have the option of not providing CPR.  However, they are required to notify  individuals during the admissions policy process that they will not administer CPR.

The question is whether notifying people upon admissions is reasonable.   It is likely that facilities around the state have a form that is signed during admissions stating they are aware of the policy of the facility.  However, during the admissions process, there are tons of documents to sign and many people do not even read them.  Does this constitute notice?

Does the nurses refusal to administer aid constitute a criminal case in Texas? Failure to stop and render aid (FSRA) is governed by Chapter 550 of the Texas  Transportation Code. The penal code typically governs criminal offenses  resulting in possible confinement and a conviction for FSRA can result in jail time,  probation and a fine.   However the Texas nurse is not likely guilty of FSRA because the rules are pretty clear that the facility is not required to provide CPR.  If this were you or me, we would be required if we knew CPR.  Funny!  So beware of the facilities policy before you place your love one in a senior living facility!

Do I need a living will?

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This is a common question I get asked by a variety of different types of clients.  The simple answer is YES!  A living will is not really a will, but is a physician’s directive (also known as an advanced directive or Do Not Resuscitate).  An advanced directive is governed by the Texas Health and Safety Code to allow people to choose what type of care they want if they need life-sustaining treatment.   I believe that everyone should have a Physician’s Directive to ensure that they get to make the decisions about life support and not burden their family with such decisions.

Alzheimer’s Disease claims another victim

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Arlington police have confirmed that the body found on January 5, 2013 was that of Maria Arrocha, an Alzheimer’s patient who was reported missing in December.  The Tarrant County Medical Examiner ruled that Maria Arrocha died from exposure to the elements.  Arrocha was found near the 1500 block of E. Abram Street near Stadium Drive in east Arlington. Officers were searching for Maria Arrocha who has been missing since Dec. 18, said Arlington police Sgt. Christopher Cook.

articles_police_121912More than 5 million Americans have Alzheimer’s or similar dementias, and that number is expected to rise rapidly as the baby boomers age. The Texas adult population with disabilities has grown to 1,683,350, which is a 300,000 jump in the last 10 years.  As more and more of our citizens, reach retirement age there are going to be more dementia related problems.  

Therefore, both the Texas House and Senate 2013 budget plans include $5.2 million for the Darrell K Royal Alzheimer’s initiative in 2014. The private fund, announced last year to spur Alzheimer’s research, was named for the iconic University of Texas football coach who died in November after living with dementia for several years.