patricia cole

Estate planning in anticipation of divorce!

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Trusts can be useful tools in a divorce proceeding especially when a spouse has a direct or indirect interest in a trust. Counsel should identify specific trust features that could make a difference and impact whether trust assets can be reached, potentially affecting alimony and property division determinations.

Within the context of a divorce, trust and estate attorneys should understand specific discovery techniques family law practitioners may use to determine whether a spouse has an interest in a trust, whether that interest is material, and what attack can be made against the trust.  The key is make sure your attorney is knowledgeable before you do any estate planning in anticipation of a divorce.

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SURVIVING SPOUSE’S HOMESTEAD RIGHTS

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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?
This constitutional right protects the homestead against forced sale and partition so long as the surviving spouse chooses to use and occupy the homestead. TX PROB. CODE § 284. The homestead right protects the survivors homestead from forced sale by creditors and from partition among the heirs and beneficiaries of the homestead claimant.

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, but it only lasts as long as the spouse occupies or uses the homestead property. If you can prove the surviving spouse abandoned the house, then the beneficiaries could take possession. It is not required that the surviving spouse continuously reside in the property to be considered as using it. For example, the survivor could rent the land out to satisfy the use requirement.

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?
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). If the heirs wish to retain the property, they are responsible for the mortgage.

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 responsible for all tax payments, even if the surviving spouse resides in the house. 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.

Social Media used in Litigation

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Many people don’t realize that emails, tweets, texts or Facebook post could be used in litigation. While you may think your Facebook page is private, it usually is not and can easily be obtained by third parties. So when you post photos on Facebook about partying the night before, how you cheated your business partner, how you cleaned the gutters but supposedly have back problems, etc. this information can and will be used against you in litigation. When you use Facebook, when you use Twitter, when you go out there and make comments on news articles . . . the things you are saying can and will be used against you. A Texas teen found out just how real the consequences of online public discussion can be when he was charged with making a terrorist threat. Read Justin Carter’s Story Here.

Check Out this Article on Social Media and Divorce
That’s What She Said by Audrey Blair

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.

 

Texas Vehicle Mechanic’s Lien Foreclosure Process

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The vehicle mechanic’s lien process has changed in the State of Texas. The new process was implemented to prevent fraud but the process has actually made the process more complicated for small business owners. To help you understand the process and what is required, I have prepared a complete outline of the process to help get you through it.

NOTE: If you fail to do all the steps below, in the right order within the time limits, then the only way you can foreclose on a vehicle and sell the vehicle to get paid is to file a lawsuit in the Justice of Peace court.

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I. FORECLOSURE NOTICE:

a. Not later than 30 days after the day on which repair charges accrue, the person claiming the lien must notify the owner/lienholder of record by CRRR mail, of the charges due and request payment. The person claiming the lien must also include the following:

  1. The physical address where the repairs were made;
  2. The legal name of the person that holds the possessory lien;
  3. The taxpayer or employer identification number of the person that holds the possessory lien; and
  4. A signed copy of the SIGNED WORK ORDER authorizing repairs.

b. A copy of the notice and a signed copy of the work order must be sent to the county tax assessor-collector’s office in the county in which the repairs were made with an administrative fee of $25 within 10 days of sending notice in (a) above.

c. The notice must also be sent to the address that appears on the work order/document authorizing possession, if the addresses are different from the address on the motor vehicle record.

II. STORAGE FEES REQUESTED:

a. If any amount of the charges include storage fees, a second notification must be made by certified mail to the registered owner and lienholder.

b. A Storage Lien for Abandoned Vehicle or Private Tow, Form VTR 265-S, must also be completed.

c. A release of lien is also required if any portion of the amount due represents charges for storage, otherwise foreclosure must be through a court of competent jurisdiction.

III. PUBLIC SALE: After you send the notices above, if payment is not made on the 31st day the notice was mailed and filed with the tax assessor-collector’s office, the possessory lienholder may sell the vehicle at public sale without obtaining a release of lien. The proceeds must be applied to the payment of charges and the balance must be paid to the person entitled to it.

IV. TITLE: The highest bidder must be the one to apply for title.

V. EVIDENCE REQUIRED TO TRANSFER OWNERSHIP:

  • Form VTR-265-M properly completed by the statutory lienholder
  • Form 130-U – Application for Texas Certificate of Title
  • Verification of Title and Registration
  • Proof of Notification
  • Liability Insurance
  • Work Order
  • Vehicle Identification Number

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

Estate Planning advise from Warren Buffett!

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Marvin Blum (pictured on the far left) generated quite a bit of media coverage this past weekend when he posed a question to Warren Buffett at the Berkshire Hathaway annual meeting, where an estimated 35,000 shareholders gather each year in Omaha. Marvin’s question and a summary of Warren Buffett’s comments are below.

“I’m an estate planning lawyer, and it’s interesting as we wrap up today to ponder that the baby boomer generation is about to pass along the greatest transfer of wealth in history. I can design plans that eliminate estate tax and pass down great amounts of wealth to the next generation, but many of my clients come to me and say they want a plan like Warren Buffett’s, leaving their kids enough so they can do anything, but not so much that they can do nothing. Now they ask me, and I am asking you, ‘How much is that, and how do you keep from ruining your kids?'”

The following is a brief summary of Mr. Buffett’s insightful response:

• I think that more of our kids are ruined by the behavior of their parents than by the amount of the inheritance.
• I rewrite my will every five or six years.
• When your children are old enough (mid-thirties or thereabouts), you should explain your estate plan to them – It’s crazy for them to read the will for the first time after you’re dead.
• If your child is named as executor, your child should understand how to carry out his or her obligations that are embodied in the will before I sign that will, and we should talk it over.
• Rather than creating a dynasty of sorts, if you’re very wealthy, the money can have far more utility to society than to create a situation where your kids don’t have to do anything in life except call a trust officer once a year and tell him how much money they want.
• If you’re going to leave each of your children different mixes of assets, you want to make sure your definition of equality is understood by the children.

Marvin’s question drew immediate attention in the news media with coverage in The Wall Street Journal, The New York Times, The Washington Post, Bloomberg Business Week, The World-Herald, and commentary from these sources was syndicated and reprinted globally by many other outlets.

Article was provided by the Blum Firm, P.C.

Why you need a directive to physican!

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Many of you know I am very adamant that all my clients have a Physician’s Directive (Living Will), so I never charge for the document.  Why is it so important you ask?  Well, there are various reasons and scenarios that come into play that many people just do not think about.  Here is a wonderful article by attorney Harvey Cox that does a great job of illistrating why end of life decisions are so important, regardless of your age!

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The Difficulty of Life
or Death Decisions
By: Harvey Cox