Legal Blog 2018
BLENDED FAMILIES AND THEIR ESTATES
By Jack D. Sterling, Attorney at Looney & Conrad
Today marriages end in divorce as often as the parties stay together for life. The unfortunate consequence of this set of circumstances is that not only are the husband and wife separated, but so are any children of the marriage.
Children of a broken home suffer right along with the parents, not to mention the extended families. It creates peculiar sets of problems for all involved. Without examining those myriad scenarios, let us focus on the most common set of problems to arise.
Usually divorces occur when the parties are still somewhat young, as are the children. It only stands to reason that, after the divorce, one or both of the parents will eventually meet and fall in love with someone else. In many cases that person will also be divorced and will likely have children as well. Marriage soon follows and a blended family is born. Therein lies the problem.
Foremost is the fact that the new family must find ways to blend together without creating animosity or conflict, not only within the new family structure, but with the extended family of the ex-spouse. They are still related and imbued with certain rights, both legal and moral.
Without going into the many problems that can arise between disparate parties within the protracted family, let’s assume that all parties get along and live happily ever after. It’s not a fairy tale. It happens more often than not.
What usually doesn’t happen, though, is that the new family unit, as amiable and loving as it might be, often fails to consider the consequences of what to do with the estates of the step-parents when one of them suddenly dies.
Let us assume that the stepfather dies as the result of a traffic accident. Not only did he love his wife, but he also loved his stepchildren as well. He had a will from his previous marriage, yet never revoked his previous will or made a new one. His previous wife and the two children of that marriage were provided for under the terms of the will. Such a scenario could result in a horribly inequitable situation for his second wife and his stepchildren, or worse and children they might have had together. Most wills would provide for any unborn children he might have upon executing the will, but that would only leave some of his estate to his children born of the second marriage.
Consider the scenario in which the stepfather never had a will. Property divisions at the time of the divorce would have given his first wife all that she was entitled to baring unusual circumstances, but we will assume there are none. The State of Texas provides specific guidelines for how the estate is divided up when someone dies intestate (without a will).
Since Texas is a community property state, his wife, at the time of his death, would receive half of the community estate. His natural born children, from both his first and second marriages, would inherent equally the other half of the community estate. His stepchildren would receive nothing.
The solution is obvious. Anytime that an individual’s personal circumstances change dramatically, such as a divorce or marriage, whether a first, second or fifth, that person should as soon as is practical, contact an attorney and execute a will. Such an action will prevent almost all of the heart breaking scenarios like the one described above, allowing that individual to dispose of his or her assets as they see fit. It also allows for the establishment of guardianship for any minor children, if any, that exist at the time of death. It is both wise and practical.
The Bucket List
By Richard Senasac, Attorney, Looney & Conrad
People don’t like to think about death. Who can blame them? But we all need to make preparations for the future. The time of a loved one’s passing is a bad time to find that there are things undone that will make life for the survivors that much harder. In order to spare your loved ones additional grief, everyone should have a Bucket list…things to do not for yourself but for others before you kick the bucket.
First is your Will. Most people don’t need a Will but everyone should have one. A Will is a document that tells the State of Texas who you want your property to go to on your death; it disposes of your stuff the way in which you want it disposed of. This is done by “probating” your Will which means filing it in probate court and having an Executor appointed by the court. Nine out of ten people when they pass on will not leave an estate that needs to go through any type of formal probate. But those that need a Will really need it. Having a Will may save months, or even years of probate and thousands of dollars in expenses.
Second is designating beneficiaries. This is vitally important. This keeps assets out of probate and saves time and money and grief for those left behind. Many assets including some bank accounts, insurance payments and brokerage accounts, pass “outside” of probate. That means they are transferred to the people the deceased person designated while he or she was alive due to arrangements he or she made while alive, with the bank, insurance company, etc.
Even in other cases, many stocks can be transferred to heirs by filing out simple paperwork with the company that issued the stock or with the broker that handles the stock. Designate beneficiaries and substitute beneficiaries for your life insurance, your retirement, etc. In any of these cases, the most important thing is to confirm that the paperwork has been filled out properly. Mistakes are common and costly. Do not take a worker’s word; look at the papers and confirm they say what you mean for them to say.
Third is similar top that; bank accounts with right of survivorship. A right of survivorship on an account lets it pass to the person listed with the bank outside of probate. This means that the funds are transferred in a simple manner without the need for any lawyers or court intervention. You should check with your bank to confirm that they offer these services and specify which you prefer.
Fourth is not specifically tied to your passing but are things you should have. I’ve spoken of durable powers of attorney and medical powers of attorney. These are effective tools for handling financial and medical decisions, but far from the only ones. A directive to physicians allows you to make medical decisions beforehand without involving an agent; YOU say what you want done in a given situation including issuing do-not-resuscitate orders.
A declaration for mental health treatment is the mental health version of this. A designation of guardian lets you choose who would be first in line to be your guardian in the case you need a court-ordered guardianship. A declaration of appointment of guardian allows you to do the same for your minor children should you die.
Fifth is the transfer of property. Real property can be transferred to loved ones during your life while retaining the right to live on the property, thus avoiding any need for probate. A life estate can be retained when you execute a deed giving (or selling) someone real property, so you have the right to continue living on the property for your life. A “Ladybird Deed” lets you give real property to someone but retain the right to live there and even mortgage or sell the property. A transfer on death deed automatically grants title to the people listed in it on your death. Trusts can manage funds, other assets and real property for anyone you choose to, including yourself, minors or even other adults.
These are only brief descriptions of the documents mentioned. If you are interested in having these, investigate them further and talk to an attorney. While designations of beneficiaries and setting up bank accounts can be done without help, the others require that you visit a lawyer. Be warned, the “forms” provided on the internet are a trap for the unwary and can do the opposite of what you want; to make things easier on family and friends after you kick the bucket.
By Paul Looney, Attorney at Looney & Conrad, P.C.
Everyone who has ever watched a police drama on television or at the movies has heard the police officers recite a list of rights when they arrest a suspect. This list of rights is known as “Miranda Rights” or “Miranda Warnings”
This concept became a part of every day police work after a United States Supreme Court ruling in a 1966 case from Arizona styled Miranda v. Arizona. The individual arrested and tried (Ernesto Arturo Miranda) appealed his conviction for armed robbery, kidnapping and rape of a mentally handicapped young woman because he had not been told that his statements could be used against him in a court of law. Even though the Supreme Court ruled that Miranda’s constitutional rights had been violated, it sent the case back to the trial court for a new trial and the ruling became enshrined in U.S. law (Miranda was subsequently retried and convicted).
Specifically, the Supreme Court found that Miranda’s Fifth and Sixth Amendment rights had been violated while he was in custody and under interrogation. No specific wording was given by the Supreme Court for informing suspects of their rights, but a set of guidelines were set out that must be followed.
If a person is in custody that is under formal arrest or so deprived of freedom as to seem to be under formal arrest, it follows that under those circumstances any interrogation of that individual can be reasonably expected to elicit an incriminating response.
As a result, prior to interrogation, the person in custody must be clearly informed that he/she has the right to remain silent and that anything the person says will be used against that person in a court of law; that he/she has a clear right to consult with an attorney and to have that attorney present during questioning; and that if the person cannot afford an attorney one will be appointed at no cost. The Supreme Court found that the Fifth and Sixth Amendments to the U.S. Constitution guarantee these rights.
The fact that a suspect in custody has been given a Miranda Warning does not in and of itself preclude subsequent statements by that person from being used in resultant prosecution. Many jurisdictions including Texas allow for officers to ask the suspect if he/she understand the rights as they have been read and if so are they still willing to talk to the officers. In that case, such voluntary statements and any evidence collected as a result of those statements even after the Miranda Warnings, have been ruled admissible.
The bottom line for anyone who, for whatever reason, is suddenly found to be in the custody of an official law enforcement organization should always remain silent until they are in the presence of their attorney. Know your rights as the Constitution provides and as law enforcement is required to advice you before any form of interrogation begins. The wisest course of action, consequently, is to remain silent and insist on your right to contact a lawyer and have one present before anything else is said.
By Paul C. Looney, Attorney
When it comes to criminal trespassing, most people commit the crime without even knowing they are doing it. It is so easy to trespass on someone’s property that most people do not even consider what they are doing as illegal. To prevent legal trouble, here is some information on what criminal trespassing is, and what to do to prevent it.
Under Texas Penal Code Section 30.05, criminal trespassing is committed anytime a person enters a property he or she does not have the right to enter, or stays on a property after being told they do not have the right to be there. A person can also commit criminal trespassing if he or she has been given permission to be on a property, but are then told to leave and they refuse.
There are many ways a person can receive notice of trespassing. Entering a property that is enclosed to keep people out and to keep livestock in is considered trespassing. Signs posted around a property or building stating that entrance is forbidden obviously means that entering would be a crime. Also, if the property has a crop that is being grown for human consumption, or is in the process of being harvested, then entering that property is also a crime.
Most of us can probably think back to a time when we were younger and would run around in someone’s cornfield, but doing so is against the law.
Criminal trespassing is usually a Class B misdemeanor, but there are many exceptions. One exception is when someone trespasses on agricultural land, which is considered a Class C misdemeanor. Trespassing can also be charged as a Class A misdemeanor if the person commits the offense in a habitation or shelter center. The charge also becomes a Class A misdemeanor if the person carries a deadly weapon during the act of trespassing.
When it comes to gun laws, it is a Class C misdemeanor if a person enters a building with a firearm that does not allow open or concealed carry. However, if a person carries a firearm into a building that he or she is not supposed to, and are given notice to leave but do not, then it is a Class A misdemeanor.
In short, if a person is about to enter a property and feel as though doing so would be illegal, he or she shouldn’t do it because it probably is. If a person is planning to open or conceal carry on a property, he or she needs to look for the correct signage to know if they are allowed to have a gun there. When in doubt, a firearm should remain in the vehicle.
Getting your security deposit back
By Richard Senasac, Attorney at Looney & Conrad, P.C.
You have moved out of your old apartment and into a new one or a home. If you are like many renters I know, you are going to have trouble getting your security deposit back. To retain your security deposit, the landlord must by law, take certain steps. The renter must provide the landlord with a forwarding address and the landlord must, within 30 days, return the security deposit less any deductions for damages.
There are things that you can do to make getting your deposit back more likely. First, read the rental agreement. Most leases provide that you must give a certain number of days’ written notice of moving out or lose your deposit. Be sure to carefully follow any requirements in your lease and to document your steps. Note that a requirement that a tenant give advance notice of surrender of the property as a condition for refunding the security deposit is effective only if the requirement is in writing and underline or in bold print. Next, arrange a walk-through with the landlord to reach an agreement as to damages. Normal wear and tear cannot be held against you for the security deposit, only abnormal damage. A worn carpet doesn’t count; an accidental hole in the wall does. Before the landlord leaves, you should have an agreed list of the damages and the cost to be deducted from the deposit. You should take photographs of any damage or wear, especially if there may be a dispute over it.
If the landlord retains any part of the deposit, he must return the rest within 30 days along with an itemized description of all the deductions. The landlord does not have to provide the list if the tenant owes rent and there is no dispute over the amount of rent owed. If the landlord retains any of the deposit in bad faith, Texas Property Code Section 92.109 provided he is liable for $100 and triple the sum withheld, plus attorneys’ fees. If the landlord doesn’t provide a written description and itemized list of damages, he is liable for attorney’s fees and forfeits the right to any of the security deposit. If the landlord fails to do either of these things by the 30th day after the tenant surrenders possession, he is presumed (the court will take it as proven unless contrary evidence is provided) to have acted in bad faith.
If you give your landlord your new address in writing and you do not receive your deposit or an explanation within 30 days of your departure, contact the landlord. If you cannot work the matter out, you may contact an attorney or file suit in JP Court yourself. A savvy landlord will recognize his exposure in court and settle before trial or possibly before the suit is filed. You may also contact the local Better Business Bureau, the local Tenants’ Rights Counsel or even the Attorney General’s Consumer Protection Office. If the landlord is a member of the BBB, he may have agreed to mediate or work out such disputes through them.
If you choose to file suit in JP Court, you should familiarize yourself with the Court’s proceedings and requirements through their websites for the requirements of proving that the landlord has violated the Texas Property Code regarding security deposits.
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