All posts by James London

Judge decides woman with Down syndrome can choose guardian

Guardianships

Many parents in Hudspeth County look forward to having happy, independent adult children. For some parents, however, they know their children will never be truly independent, most often because of a disability or accident. When adult children are not able to make decisions for themselves, it is essential that the children be appointed guardians. While a guardian should not completely run a person’s life or go against the incapacitated person’s wishes, the guardian provides support and care that the individual is otherwise unable to provide for him- or herself.

Although many people in need of guardians will choose their parents, not all will, and one judge has determined that a person needing a guardian should have some say in who his or her guardian is. Although this did not happen in Texas, judges here may also choose to listen to the disabled person’s preferences as to who his or her guardian is.

The 29-year-old woman at the heart of this matter has Down syndrome and the judge made it clear that she needed to have a guardian. He found that she was unable to remain entirely indpendent, but that he was required to listen to her preferences.

The young woman’s mother and stepfather had filed for guardianship and wanted to put her in a group home. The young woman, however, wanted to live with her friends, a couple that currently employ her to work in their thrift shop. Had her parents won guardianship, they would have been able to dictate who she spends her time with, where she lives and what medical treatments she would recieve.

Source:USA TODAY, “Judge: Woman with Down syndrome can live with friends,” Natalie DiBlasio, Aug. 3, 2013

Trusts were one option to lower James Gandolfini’s estate taxes

Estate Planning

Almost one month ago, we brought you the tragic story of James Gandolfini’s death. We also discussed how he had intelligently created a will that made specific provisions for his loved ones, something of a rarity among the Hollywood elite. Although the people in El Paso may have been impressed by Gandolfini’s generosity, they may also have noticed how much in estate taxes his friends and family will have to pay.

Estate taxes can be a burden for many people in Texas and anyone with an estate over $5.25 million. One way to get around those taxes, however, is to establish trusts for people who would otherwise have to pay those taxes. For Gandolfini, that would be anyone but his wife.

In Gandolfini’s will, he left a little less than 20 percent of his money to his wife, meaning more than 80 percent of his estate was subject to estate taxes. Had he created a trust for his other family members and friends, they would have received much more.

Setting up a trust can be difficult and many people think it would just be easier to write a will. It is important to remember, however, that you worked hard for your money and you should be able to give nearly all of it to the people of your choosing, not paying the federal government up to 55 percent of your bequests. Working with an estate planning attorney can help to create trusts and avoid the cost of estate taxes.

While it is certainly clear that Gandolfini’s friends and family will not be wanting after the bequests they received, they could have received even more if Gandolfini had used trusts to provide for them.

If you would like more information, please see our previous post on specifics of Gandolfini’s will.

Source:CNBC, “Gandolfini’s will a case study on what not to do,” Kelley Holland, July 26, 2013

Indian royalty’s 24-year will dispute slowly moving forward

Will Execution

This is not a story about a Stockton resident creating a will, nor about someone in El Paso making a sound estate plan; this is a story about royalty, riches and an estate worth nearly $3.1 billion. While the last will and testament of an Indian maharajah may not seem directly relevant to someone in Texas considering whether to draft a will, the two situations are not nearly as different as one might think.

The whole purpose of a will, whether it is for a Texan of modest means or a member of India’s noble class, is to deal with an individual’s estate and property. When a family member cuts someone out of the will, especially someone who normally would inherit, it can lead to a court battle, potentially lasting years.

For the two daughters of this former maharajah, their father’s will, which left one daughter nothing and the other a monthly stipened that is little more than $20, was disappointing to say the least. So, for the past 24 years, they have been fighting the will and the nobleman’s lawyers, arguing the will was fake. Recently, an Indian court agreed with the daughters, determining the will was forged and giving the daughters almost $3.1 billion.

The lawyers who originally were made responsible for the money, held in trust, have vowed to fight the ruling.

So, how does this apply to someone in Texas with a much smaller estate? Just like the maharajah, if someone drafts a will that leaves someone out, the individuals who do inherit may find themselves in court fighting for their inheritance. Working with an experienced estate planning attorney, however, can help protect against fighting, at least in the courtroom.

Source:The Guardian, “Maharajah’s daughters inherit £2bn after court battle over ‘forged’ will,” Jason Burke, July 29, 2013

Texans seeking to disinherit an heir have several options

Heirs & Beneficiaries

While most people in Van Horn would like to think that families can get through anything together and that nothing can tear them apart, sometimes that just isn’t so. There are just some Texas families in which it is pretty clear that parents and children don’t get along, and sometimes parents want to make it explicitly clear that they don’t want a child to inherit anything. Just like any kind of specific request, the only way to truly ensure only certain heirs will receive property is through a thoughtful estate plan.

Before a parent chooses to disinherit an heir, however, it is important to look at the reasons why. There are many parents who don’t really want to disinherit a child, but they are so concerned that if the child were to inherit anything it would just go to his or her drug or alcohol habit. In a sense, the parent is trying to prevent harm to the child that would come with added income.

If this is the case, maybe disinheriting a child is not the best thing to do. Instead, the parent can set up a trust that has one important clause: the child must go to treatment and get clean before he or she receives any money. Not only would this prevent the child from harming him- or herself through, but would serve as an important incentive for the child to clean up his or her act.

There are many different reasons why a Van Horn parent may wish to disinherit a child, but regardless of the reason, it is wise for him or her to speak with an attorney to create an estate plan. By creating a narrowly tailored estate plan, someone can generally block anyone from inheriting that he or she wants.

Source:Bloomberg, “You Want to Cut Your Kid Out of Your Will. Or Do You?,” Lewis Braham, July 23, 2013

When Alzheimer’s disease hits, many patients may need guardians

Guardianships

Alzheimer’s disease is a brutal condition that can rob a person of his or her personality, memories and ability to function long before he or she will die. There are a number of people in Socorro who are diagnosed with this condition every year and they are just part of the approximately 35 million pepole who have dementia, the umbrella disease that Alzheimer’s is grouped under. For the loved ones of Alzheimer’s patients, watching them decline can be hard, but many also recognize just how important it is for these patients to have a guardian appointed.

When someone with Alzheimer’s can no longer do some of the things he or she could previously, like work or remember to pay the bills, it is important to have a guardian appointed. A guardian handles an individual’s needs, including both finances and health. Whether one guardian handles both or they are separated into guardians of the estate and guardians of the person, respectively, is a matter on which a guardianship attorney can advise.

For some people, Alzheimer’s is a slow degeneration, and they may notice changes to their memories and mental capacities over time. There is new research that indicates that those who are worried about their memory decline are frequently diagnosed with early onset Alzheimer’s or Alzheimer’s a few years down the line. If someone knows that he or she will eventually be living with Alzheimer’s, he or she may also want to consider appointing someone as a power of attorney.

Like a guardian, someone with a power of attorney is able to make financial and health-related decisions on behalf of someone who is no longer capable of doing so alone. One of the major differences is, however, that an individual can choose who holds a power of attorney, rather than have a guardian appointed by the court.

Source:The Associated Press, “Memory decline may be earliest sign of dementia,” Marilynn Marchione, July 17, 2013

Planning for death: what to do with your emails?

Estate Planning

It is a part of estate planning that no one in Texas would have thought of 40 years ago, but the problem of how to deal with emails and other digital information after death is something that many estate planning attorneys are now tackling. In an effort to help individuals contemplating what to do with their digital information after they have died, Google has recently released a tool that will delete or send your data along to another person after your death.

Planning for your death may seem morbid and something that many younger people in Fort Stockton don’t feel is that important, but there is no guarantee that everyone will live to a ripe old age. Sometimes, tragic accidents or illnesses take people who have no estate plan in place and there are very limited options with what to do with the person’s possessions. Creating an estate plan, however, protects the individuals’ wishes.

Part of those wishes may be that no one has access to emails, YouTube accounts and online profiles. Maybe there is some personal information in there, maybe there are some things that individuals just don’t want others to see. Regardless, using the Google Inactive Account Manager provides a way for individuals to protect their online information from family and friends after death.

On the other hand, however, there are some people in Fort Stockton who want family members or friends to have access to their emails and other online accounts after death, and this tool also gives them the ability to choose who can and who cannot have access. Ultimately, it is a matter of having a complete and thorough estate plan that protects individuals’ wishes after their death.

Source:CBS Pittsburgh, “Google launches digital afterlife manager,” April 13, 2013

Estate planning for some children requires careful consideration

Estate Planning

For many parents in Odessa, trying to plan for a death can be difficult. Most parents may not think about what will happen to their children if they die, especially when they are young and healthy. Unfortunately, many Texans realize that an accident can happen at any point and strong estate planning is crucial to ensure one’s money is passed on to the right individuals. For the parents of special needs children, however, it is even more important to use the proper estate planning techniques so as to not interfere with federal disability benefits.

Setting up a third-party special needs trust can be a complex way to provide for special needs children after their parents’ death, but it is also an extremely effective way of protecting those children. These trusts will generally not prevent a special needs child from receiving Supplemental Security Income or Medicaid benefits, as the beneficiary does not own the funds, he or she merely receives monetary payments.

Setting these trusts up, however, require a detailed understanding of Texas estate planning law and usually require the assistance of a trust lawyer. Even if parents are familiar with the law, even the slightest error could prevent a child from receiving the money left to him or her, or could seriously change what sorts of state and federal benefits the child is able to receive.

Another benefit of a special needs trust is that the child is not responsible for managing the money and the parents can put specific restrictions on how the money is to be used. It will then be up to a trustee to ensure the terms of the trust are followed.

Source:The Fiscal Times, “Estate Planning Guide for a Special Needs Child,” Sonya Stinson, July 10, 2013

James Gandolfini gifts many family, friends in his will

Will Execution

All too often, people in Stockton read stories of stars dying with no will. Their properties and estates end up going to family members that they would rather not have left anything to and, sometimes, to family members with whom they have not spoken in years. Though many stars do die without a will, the recent death of James Gandolfini reminds us that not every actor and actress does.

Gandolfini is probably best remembered by the people of west Texas as the actor to play Tony Soprano, a complex mobster in the HBO show “The Sopranos.” Yet, outside of the show he was anything but violent and cruel, and his will is a testament to his caring nature.

While it is not surprising that a majority of his estate goes to his 13-year-old son and infant daughter, what is shocking is how many generous gifts he left to the other people in his life. For example, he gave two of his friends $50,000 each, asking one of his friends to use the money for his son. The actor also gave his godson $100,000. His secretary and personal assistant were also to receive $200,000 each.

Had Gandolfini not made a will that specifically divided his approximately $70 million estate, none of those people would have received anything under normal intestacy laws. And, since he had children and was married at the time of his death, not even his sisters or his nieces would have received the generous sums that Gandolfini left them. Fortunately, however, the star knew that if he wanted his property to be distributed the way he wanted it, he would not be able to die without a will.

Source:New York Post, “James Gandolfini leaves bulk of $70M estate to his two children,” Julia Marsh, Jeane Macintosh and Kate Sheehy, July 3, 2013

Without estate planning, Texas’s intestacy laws can confuse

Heirs & Beneficiaries, Probate, Will Execution

People like to plan things: what to do during vacation, what to have for dinner and what career move to make next. This planning also extends to what people would like to have happen after death, the problem is, however, that unless someone takes the proactive step of creating a will or some other estate planning tool, no one will know how the property should be distributed. Instead, El Paso residents’ property will become subject to Texas’s intestacy laws.

When someone dies intestate, or without an estate planning device in place, his or her property and assets are distributed according to a set of Texas statutes. The problem is that these laws can be convoluted and difficult to understand without the help of an estate planning lawyer. And, even if you can figure them out, they may not be how you want to divide your things after you die.

Take, for example, the following situation: a woman dies before both of her parents. The woman leaves behind two daughters, who ostensibly inherit their mothers’ possessions. When these daughters’ grandmother and then grandfather die, who gets what? While this may seem like a question used to stump law students, it is exactly the sort of problem Texas courts must resolve with no will or estate planning device in play.

It is likely that the daughters would receive their grandparents’ estate, but the situation can change very quickly with even the slightest variation to the story. When a family member does die and there is a question of who should get what, it is important to consult a estate planning attorney for clarification.

Source:San Antonio Express, “Do grandchildren or great-aunt inherit?” Paul Premack, June 19, 2013

Supreme Court decision potentially changes estate planning field

Estate Planning, Heirs & Beneficiaries

Following Wednesday’s announcement by the Supreme Court of the United States that the federal Defense of Marriage Act is unconstitutional, there was considerable talk about what this opinion would change. Since Texas does not perform same-sex marriage or recognize couples who have been legally married outside of Texas, there has been some questions about whether the end of the Defense of Marriage Act will bring federal benefits to couples living in Texas that were married in a state that has legal same-sex marriage. As the federal government works through these questions, it is important to work with an estate planning attorney who can help explain the legal changes.

The case that actually brought down the Defense of Marriage Act was about estate taxes. The plaintiff had been legally married to her wife and lived in a state that recognized same-sex marriage. Yet when her wife died, the plaintiff was forced to pay $363,000 in estate taxes because the federal government did not see the women as famliy members.

If federal benefits are extended to married same-sex couples in Texas, this would mean that future inheritances to spouses will not be taxed under the federal estate tax. Same-sex couples will no longer have to pay the government for an inheritance that opposite-sex couples never had to. There are, of course, other federal marriage benefits that same-sex couples will be able to access, as well.

Estate planning is a complex and difficult thing to do, but it is vitally important. Planning for the future ensures that your money, property and possessions go to the individuals you want them to go to, which is also why it is so important for estate planning to be done correctly. If a will is not made properly, all of that hard work could be disregarded completely.

Source:ABC News, “4 Ways Life Will Be Different Without DOMA,” Emily Deruy, June 26, 2013