Monthly Archives: April 2015

What is the purpose of probate court?

Heirs & Beneficiaries

You may have heard people whose loved ones have passed away state that they are waiting on their inheritance, but the “will is in probate.” What does that mean?

Probate is a court process for validating a will. A person may have created a handwritten will or a typed will; either way its legitimacy must be proved to be valid. Probate of a will must occur within a four-year time period from the time of death.

What happens in probate court? In court, verification that the will was executed properly per Texas’ requirements is performed. The deceased must have been at least 18 (unless lawfully married or serving in the military), have been “of sound mind,” not have been forced or deceived into writing the will and must have had intent to bequeath property or assets.

What is a self-proved will? A testator my incorporate into his or her will — or attach to it — an affidavit of a specific form that contains required statements to validate the will, and is signed by a notary public. A will that is just signed and notarized does not qualify as a self-proved will.

What if a will is not proven in the court? This would be a “denied probate.” It a will is found to not be credible, it would be as if there was never a will, and the decedent’s property or assets would go to his or her heirs in the same manner as it would without a will, which may not be the desire of the deceased.

Having a will that is executed properly is very important if you want your property bequeathed to your heirs in a specific way. The wording and validity of the will are both very important, or one or more of your heirs could contest the will, holding it up in probate court for months or even years. An estate attorney can ensure that all of the “i’s” are dotted and “t’s” crossed, giving you peace of mind.

Source: Texas Young Lawyers Association, “Texas Probate Passport,” accessed April. 30, 2015

Real estate transactions – not always a simple sale

Real Estate Transactions

It can be helpful to have a guide leading you through the process of a real estate transaction. In some cases, what might seem like a simple property transaction can become quite complex.

In Texas, title companies can handle closings. Some buyers and sellers have very simple home title transfers that a closing attorney handles well. In these transactions, there are clear titles and no financing issues to create stumbling blocks.

Real estate attorneys generally have experience handling more complex transactions and litigation involving land or financial disputes relating to real property. As noted on our real estate practice page, these can include boundary controversy, clouded title resolution, zoning issues, intricate purchase or sale agreements and landlord/tenant disputes. Commercial real estate transactions may involve multiple parties, each of whom brings to the negotiating table issues to be resolved.

Working ahead of the game to understand legal ramifications and plan for negotiation can minimize potential problems or contention among parties to the transaction. Common legalities that can arise during real estate transactions might include lien holder questions, tax issues, disputes regarding various property rights and creditor claims.

An important thing to remember when dealing with any real estate transaction — no matter how simple — is that a thorough understanding of anything you sign is critical. Real estate documents often contain complex language that can affect each party. Your signature might create a vulnerability in the future, particularly if you develop a legal concern with the property or intend to sell it later. By seeking a knowledgeable review of any contract, you can reduce the chances of problems in the future.

Why would a bank use a short sale?

Real Estate Transactions

A short sale may allow you to purchase a home for less than you would pay on the traditional market. To do so, you simply offer to buy out the loan for less than that loan is still worth. This often happens when the alternative is a foreclosure.

For instance, someone may purchase a house for $300,000, but then he or she may find that the home is not really affordable for a variety of reasons, such as unemployment and the loss of a career. As a result, that person may stop paying entirely and be threatened by the bank with a foreclosure.

You can then step in and tell the bank that you’d like to buy the house, but you’re only willing to pay $230,000. Banks will not always accept this but if they do, you get the home for $70,000 less than the previous owner, meaning you’ve gotten a tremendous deal. Though the process can be long, people in Texas are sometimes willing to wait it out for such significant savings.

So, why will the bank accept less than is owed? Quite simply, the bank is going to lose money with a foreclosure anyway. That process can be even longer, and every month without a payment is money lost. The bank then has to invest even more time and money in trying to sell the home, after putting a lot of time and money into foreclosing on it. The short sale is not ideal, but it’s often easier and more attractive to the lender, and it ensures that the home is sold again very quickly.

As noted, short sales are long and complex, so be sure you know what you must do from a legal perspective.

Source: Foreclosure.com, “Real Estate Short Sales,” accessed April. 20, 2015

Why you should do estate planning now

Estate Planning

If you avoid estate planning or end-of-life planning because you think it is too complicated, think again. There are only two main areas to consider: property and assets, and health. An attorney can easily take care of the details for you. When you understand the necessity of planning ahead, you will want the peace of mind that comes along with having proper documents in order.

For instance, why should you have a will? A will is imperative in taking care of your family if something happens to you. It allows you to designate your assets however you want to your heirs, charities or other causes. You can also restrict how you want the inheritances used, such as protecting them from going to creditors of your beneficiaries. In addition, you can specify a guardian or caretaker for any dependent children. In the absence of a will, the state may end up deciding where your assets go or who gets what.

A living will, also known as an “advance health care directive,” and a health care or medical power of attorney should be a vital part of your estate planning. A living will allows you to specify what type of medical treatment you would like administered if you are in an end-of-life situation. A medical power of attorney allows a person to make medical decisions for you if you become unable to do so. This is often used by children to make decisions for aging parents, who may be deteriorating in cognitive abilities; however, young people should not discredit this type of document as disabling incidents, such as a traumatic brain injury, can occur at any age.

You should also have a durable general power of attorney. A durable power of attorney allows someone — whom you name — to manage your finances and assets in the event something happens to you, and you are unable to do so. For instance, if an accident occurs, and you are totally disabled, someone may need to access your checking account or assets to ensure your bills get paid. They may need to keep your business running or make funds available for your medical care or treatment. This person is held to specific standards under the law and is prohibited from using your assets for their own needs over yours.

Because life is unsure, you can’t afford to put estate planning off!

Source: The Huffington Post, “4 Estate Planning Documents Everybody Needs,” Steve Cook, April. 10, 2015

Reasons to set up a guardianship

Guardianships

There are countless important decisions that parents must make in the course of raising their children to adulthood. One of the most critical, however, is providing the best options for their care if something should happen to mom and dad. Choosing someone to look after them physically until they grow up and having that person or couple willingly agree to do so can give parents immeasurable reassurance. Naming the choice in a last will and testament may reenforce the chance that those wishes will be honored.

Financial considerations shouldn’t be discounted. Minor children need someone to manage money for their care and see to it that their inheritance, of whatever nature, is protected until they are old enough to manage their own finances and property.

Some people are born with limited mental capacity for a myriad of reasons. Reaching adulthood might not make a difference in their abilities. Others may suffer injury or illness that leaves them without the wherewithal to care for themselves as adults. A court may authorize an individual to act as a guardian. The guardian will provide the necessary physical assistance and financial management needed to care for the person.

These instances are some of the reasons to set up a guardianship. Texas law defines an incapacitated person as one who is mentally, physically or legally incompetent, and includes minor children. They may be judged so by a court based on incompetence, having an unsound mind or being a habitual drunkard. County court jurisdiction applies to petitions for guardianship, including appointing the guardians of minor children according to estates.

In certain circumstances, the court may appoint a guardian ad litem to represent the interests of a minor child or other incapacitated person during guardianship proceedings. For example, if a guardianship wasn’t specified in a will, and multiple individuals have stepped forward to assume the role, a guardian ad litem will safeguard the incapacitated person’s well-being as decisions are contemplated.

Source: FindLaw – Texas Statutes, “Chapter XIII: Guardianship,” accessed April. 09, 2015

Tips to help you avoid foreclosure

Foreclosure

Avoiding foreclosure is not always possible, but the key is to do all you can to try to keep your home; do not simply accept that you are going to lose it and step aside. There may be more that you can do in Texas than you think.

For one thing, you always want to act quickly, as soon as you know you have a problem. If you contact the lender after you see you can’t pay, but before they have to come find you, you may be able to work out an agreement, get a new loan or find another solution that doesn’t involve foreclosure. Remember, foreclosure can be complicated and time-consuming, so lenders don’t really want to do it except as a last resort.

You also need to have a full understanding of each option. For example, if you’ve fallen behind on payments, you may not have to pay them all back instantly. Your lender may agree to a modification, adding a little bit more to your monthly payments so that you get back on track and gradually make up each missed payment. The lender will want to work with you to find an easy solution.

You may also be able to restructure your loan with another lender. It is important to note that some of these plans are scams, though, so do your homework and consult with others before agreeing to anything. The legitimate restructure plans can be very helpful, however, as they can reduce the payments by lengthening the loan, in some cases.

Do you want to find out more about what you can do or get more tips? If so, please take a look at our site today.