Estate Planning
Understanding the Oil & Gas world – Part I
PART I OF OIL & GAS OUTLINE
Do you own oil & gas interest? Many people in Texas have some sort of mineral interest. When you deal with the landman or operator, do you understand all the nuances of the oil & gas world? Many people have a basic understanding, but do not usually have enough information to feel truly knowledgeable. Therefore, I am providing a great outline in two separate blogs for your reading pleasure.
The author of this outline is Derek Fletcher a Managing Director and Wealth Strategist at U.S. Trust, Bank of America Private Wealth Management. I have not altered the context of Mr. Fletcher’s work, however, I have reduced it down to include only the basic information and broken the outline into two separate blogs.
The mineral estate is a tract of land that is distinct from the surface. It includes five primary attributes: (i) the right to explore (ingress & egress), (ii) the right to develop (executive right), (iii) the right to receive bonus payments, (iv) the right to receive delay rentals and (v) the right to receive royalty payments. Accordingly, in the estate planning context, a client may own or be willing to transfer one or more of these various “sticks.”
Steps in the Exploration and Production Process. In order to appreciate oil and gas as an asset, it is important to understand the general activities involved in the exploration and production process.
Step One: The Survey
a. Geological Maps – identifies sedimentary basins and favorable geological locations.
b. Aerial Photography – identifies promising land formations such as faults or anticlines.
c. Magnetic, Gravimetric or Seismic Studies – provides information regarding the various rock strata below the surface.
(1) Magnetic Survey – measures the intensity of the magnetic character of the rock strata.
(2) Gravimetric Survey – measures the variations in gravitational fields.
(3) Seismic Survey – measures the various reflective properties of the rock strata as sound waves are transmitted below the surface. The seismic survey is the most common assessment method.
2. Step Two: Exploratory Drilling
a. Exploratory boreholes are drilled on a promising geological area in order to determine whether, in fact, hydrocarbons exist.
b. Once drilling begins, “mud” is circulated down the borehole and back to the surface. Casing is run into the completed sections of the borehole and cemented into place.
c. When a hydrocarbon formation is found, initial testing is performed to determine the rate flow rates, thickness and internal pressure of the reservoir.
3. Step Three: Appraisal
a. If exploratory drilling produces favorable results, additional wells will be drilled in order to ascertain the size and extent of the field.
b. The economic feasibility of development and production IS determined during the appraisal process.
4. Step Four: Development and Production
a. If commercial quantities of hydrocarbon are discovered, the next step involves development and production from the reservoir.
b. If the field is small, the appraisal wells may simply be used to develop the field.
c. If the field is large, additional production wells may be drilled.
5. Step Five: Enhanced Recovery
a. Many wells are free-flowing – meaning that the underground pressures are sufficient to carry hydrocarbons up the wellbore to the surface.
b. If the underground pressures are insufficient, some fonn of additional lift may be required – such as a pumping mechanism or the injection of gas, water or steam to maintain the necessary pressure.
c. It may also be necessary to stimulate production by fracturing the formation referred to as “fracking.”
6. Step Six: Processing
a. This is the process whereby the fluids produced (oil, gas and water) are separated.
b. Oil must generally be free of dissolved gas.
c. Gas must be stabilized and free of liquids and other elements such as hydrogen sulphide and carbon dioxide.
d. Water must be treated before disposal.
Beware: Texas law does not require CPR in senior living facilities
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?
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.
6 Signs your Identity has been stolen~!
- Unexpected phone calls from creditors.If you get a call from a creditor demanding payment for a purchase no one in your family made, have the caller give you all the information possible and investigate.
- Strange credit card charges. It’s easier to spot these if you keep all your receipts and reconcile them with your statements each month.
- Getting turned down for credit unexpectedly.This is one of the more common ways people discover they’ve been victimized.
- Account usernames and passwords or ATM PINs stop working. This suggests that an identity thief may have changed your access codes.
- Missing bills If bills from your accounts suddenly stop arriving, it could mean an identity thief has changed your address in order to use bank accounts without raising suspicion.
- Strange information in your files. If information in a personal file is not yours it could signal identity theft or it could be an innocent mistake. To avoid mistaken identity problems use your middle name or middle initial on accounts to distinguish you from others who have the same name.
Courtesy of myfico.com.
If you suspect you are the victim of identity theft, contact the Texas Attorney General’s office at 877-438-4338.
Who makes the funeral decisions?
In Texas, if the Decedent did not leave any written instructions, then the Texas Health & Safety Code authorizes the following persons, in the priority listed, to control disposition, including cremation. They also bear liability to pay the reasonable cost of burial, from their own funds if the estate does not have adequate funds. They are:
1) The surviving spouse;
2) Any one of the surviving adult children;
3) Either one of the decedent’s surviving parents;
4) Any one of the decedent’s surviving adult siblings; or
5) Any other adult who would inherit under the intestacy laws.
However, if the Decedent left instructions, they get top priority! Legally, a person may provide funeral directions in the following:
1) a Will;
2) a pre-arranged funeral; or
3) a written instrument signed and acknowledged by that person.
If the directions are in the Will, then for the limited purpose of handling the funeral there is no need that the Will first be probated. The person authorized to control the disposition must promptly carry out the directions to the extent that they are affordable to the estate or the Agent. If that alleged Will is later denied probate or is declared invalid, the funeral directions remain valid to the extent they were acted on in good faith. Again, probate of the Will is not required – just the appearance of a document that purports to be the Will and is acted on in good faith.
The directions might also be in a legal document called an “Appointment of Agent to Control Disposition of Remains.” It is essentially a power of attorney, but it takes effect at the moment of death, contrary to typical powers of attorney that cease at the moment of death. That Appointment document may include very explicit and legally binding instructions, including the requirement of cremation or a traditional funeral. It must be signed by the principal (and acknowledged before a notary) and it must be signed by the agent. When the agent signs it, the agent is also agreeing to pay for the funeral if the estate’s funds prove inadequate.
Keep in mind that the funeral home can legally refuse to accept the Decedent’s remains or to conduct the funeral or cremation until it receives a court order or other suitable confirmation that the dispute has been resolved. So don’t put your family through the fuss of deciding what your burial plan will be, prepare ahead of time!
Do you need a Lady Bird Deed?
A “Lady Bird Deed” is a nickname given to an Enhanced Life Estate Deed, which is used to convey property to your heirs outside of probate. This deed is commonly used in Texas because it allows the grantor to transfer property to beneficiaries while retaining a life estate in the property coupled with the power to sell, convey, or mortgage the property without the beneficiaries’ consent. The beneficiary of the deed does not get any rights to the property while the current owner is alive. However, these deeds are outdated!
In Texas you do not need a Lady Bird Deed because the Texas Legislature created a Transfer on Death deed with a new law. This new law allows property to transfer at death to someone else, so no probate is needed. A Transfer on Death deed conveys property outside of probate. Avoiding probate allows for you to avoid court costs and administrative costs to deed the property to your beneficiary. Under current Texas law, it also excludes the real property from Medicaid estate recovery.
The Transfer on Death deed can only transfer real property (ie home, commercial property, etc) and the deed must be formal in all ways and filed with the local real property records office. Anyone can sign a Transfer on Death deed but they must have the capacity to understand what they are doing or the deed could be found to be invalid. You should consider retaining an attorney to prepare this deed as the cost would not be large.
When should you amend your trust?
Many times people create trust during their lifetime and they face situations that may require amendments to the trust. If changes are required to your trust, a trust amendment is the proper way to make the changes. Handwritten marks and notes on the trust document are not considered legal changes. An amendment specifically states what paragraphs of your trust is being changed, and sets forth the new trust language. The amendment may be short, or it may be so drastic that it actually changes the entire trust, from the first word to the last.
What are some reasons why you may need to amend your trust? Some trusts are completely out-of-date, or irrelevant due to changes in the statutes, case law, or just poorly written. Some trusts may have provisions that are illegal, or contrary to the client’s wishes. Some people need their trusts revised or updated because of changes in their wealth or family circumstances.
Lengthy or complicated trust amendments may be difficult, costly, time consuming and hard to follow for future trustees. Therefore, a good estate planning attorneys will recommend a trust restatement. A trust restatement is a document which completely restates the entire trust agreement, and a new trust is created through the amendment and restatement.
Although a restatement is basically a new trust in the form of a trust amendment, the name of the old trust and the date that it was established remain the same. Therefore, there is no need to obtain a new tax identification number, move funds to new accounts, change deeds, etc.
With the many tax law changes in recent years, concerns about future ill health and incapacity, or with changes in your family situation, it is recommended to have your trust reviewed by an attorney. A simple amendment may be all that is required or it may be necessary and more efficient for the attorney to restate the entire trust.
Dying without a Will in Texas.
If a person dies in the State of Texas without a will, there several options for the person who decides to handle the estate. Choosing the correct option depends upon the assets involved and if the heirs are in agreement on certain matters.
If no formal administration of the estate is necessary, there are two options: 1. Small Estate Affidavit (estates of $50,000 or less); or 2. Proceeding to Determine Heirship. These are both pretty simple process that can be done relatively cheaply with the help of an attorney.
If a formal administration is necessary, then there are still two choices: 1. Independent Administration (if all heirs agree on the appointment of an IA); or 2. Dependent Administration (when all the heirs do not agree on the appointment of the administrator; more expensive route).
If either of these latter two options is chosen, then along with the administration filing/proceeding, the administrator will also need to file an Application to Determine the Heirs (and the appointment of an ad litem attorney to assist the Court in determining the heirs of the estate).
To determine which step is necessary, you should consult an estate planning attorney.
Inheritance Rights of Adopted Children
The inheritance rights of adopted children are protected when a parent dies without a will. Under the Texas Probate Code, a child adopted by the decedent is treated the same as a natural-born child. Therefore, the adopted child can inherit from his or her adopted parents and vice versa.
If the decedent allowed their child to be adopted, the child can still inherit from his or her natural parents. However, the natural parents cannot inherit from the child if the child dies without a will. This is an important consideration today when so many children are adopted.
Furthermore, under Section 162.507 of the Family Code, a person who is adopted as an adult, inherits from their adoptive parents but not their biological parents and vice versa.
Texas Business Franchise Tax
Small business owners in the State of Texas are being inundated with costs which could put them out of business. One of those new costs, is the ever changing Texas’ Franchise Tax. The Texas franchise tax is a privilege tax imposed on each taxable entity formed or organized in Texas or doing business in Texas.
The revised franchise tax applies to partnerships (general, limited and limited liability), corporations, LLCs, business trusts, professional associations, business associations, joint ventures, incorporated political committees and other legal entities.
Who has to pay the Franchise Tax? Most business who make more than the $1,030,000 (the no-tax-due threshold) for January 2012 through January 2014 tax years. On January 1, 2014, the no-tax-due threshold is scheduled to be $600,000. Keep in mind that the no-tax-due threshold is calculated taking the lowest of three calculations:
- total revenue minus cost of goods sold;
- total revenue minus compensation; or
- total revenue times 70 percent.
On January 12, 2012, the Texas Supreme Court dismissed the Nestle case, In Re Nestle USA, Inc., Switchplace, LLC, and NSBMA, LP, challenging the revised franchise tax, the so-called “Margin Tax,” on constitutional grounds. On February 10, 2012, the Texas Supreme Court rejected a second challenge by Nestle Case to the Texas franchise tax http://www.supreme.courts.state.tx.us/historical/2012/feb/021012.htm.
So for now, small business owners will just have to suffer through trying to calculate and pay this complicated business tax.
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