All posts by James London

How can Texas heirs access unclaimed property?

Heirs & Beneficiaries

Strong estate planning and administration reduces the chance that your property will sit unused or lost in a legal system for years. However, there are times when unclaimed property is listed by the state because someone has not properly claimed. The state of Texas offers some guidelines for heirs who are trying to reclaim such property.

First, the heir must provide a death certificate and proof of social security number for the person who is reported as the owner of the property. If property is valued over $5,000, then the death certificate must be a certified copy.

If the reported owner had a will and that will was probated, then the heir must also submit the will and either an Order Admitting Will to Probate as Muniment of Title or an Order Admitting to Probate. Closing documents must also be provided if the estate was closed.

In the absence of a will or probate, then requirement documentation depends on the value of the property. If the property is valued more than $10,000, a Small Estates Affidavit of Heirship or a Court’s Determination of Heirship are required. Both of those documents do require the signature of a judge.

If the value of the property is $5,001 to $10,000, then a notarized Affidavit of Heirship is required. The affidavit must be completed by a third-party with no interest in the case and filed in the county where the owner of the property died. An Affidavit of Heirship is also required for property valued at $5,000 or less, but the location requirement is not present.

Seeking property owed to you as an heir can be difficult, whether the property is with the state’s unclaimed property office or not. Understanding your legal rights and options can help you seek an outcome that is most satisfactory.

Source: Window on State Government, “General Claims” Jan. 02, 2015

What does Medicaid consider to be your estate in Texas?

Estate Administration

If you’re going through the Medicaid recovery process in Texas, it is important to know what is technically in the deceased party’s personal estate, at least in the eyes of Medicaid. This could be a bit different than you would naturally assume, though most of it is pretty straightforward.

To start with, you should know that only the items that are eligible for probate are going to count. That means that the following are usually going to be exempt:

— Proceeds that were obtained from an insurance policy.– IRA accounts and other types of personal retirement accounts.– Pensions given out by former employers.– Accounts held in banks or similar institutions that pay out when a person passes away.– Joint accounts.– Wealth that is held in mutual funds.

You may be thinking that wealth that is not kept in Texas, will also be exempt, but this is not always the case. The physical location of the wealth does not always matter, just so long as it is in the person’s name and technically within his or her estate.

Finally, you should know that a will cannot be distributed as long as there are any outstanding claims from the recovery process. This has to be taken care of first. Even big-ticket items, such as homes, could be claimed in some situations.

No matter where you are in this process, you need to know how all of the laws impact you in Texas. Be sure that you fully understand the claims, your rights and what you must do.

Source: Texas Department of Aging and Disability Services, “Medicaid Estate Recovery Program FAQs” Dec. 28, 2014

What is the foreclosure process in Texas?

Foreclosure

How long do Texas homeowners have before losing their homes if they default on their mortgage? Without help, it could be sooner than you think. According to the Texas foreclosure process, it could, in actuality, occur in a 41-day time frame.

That is not to say that it always occurs at that rapid of a pace, but it is an actual possibility. There are three steps to a Texas foreclosure once a borrower has defaulted on his or her mortgage. A default occurs as soon as you miss a payment, although it may take a while before the lender contacts you. This does not mean you are not, however, in default.

Once your mortgage is in default, a lender may begin the foreclosure process. The first step is give the borrower 20 days in which to resolve the issue. They must notify the borrower by written notice.

If the mortgage is not brought current within the allotted 20-day period, the second step of the process may be initiated. A notice of proposed sale of the property is filed with the County Clerk and posted on the courthouse door. The sale cannot be scheduled to take place any earlier than 21 days after the 20-day period given to the borrower. The borrower must also be sent a notice by certified mail 21 days prior to the sale date.

The third step is the actual sale, which takes place by auction on the steps of the courthouse. These auctions occur on the first Tuesday of every month.

Because Texas does not have a “right of redemption” law, a foreclosure sale is final. At this time, if the previous homeowner has not vacated his or her property, he or she can be evicted by the new owner.

It most cases, it takes a bit longer than 41 days, but Texas’ foreclosure steps are not extremely complicated, and once the process is started, it can move quickly. There are ways to avoid foreclosure if a homeowner is facing a period of financial distress and get behind on his or her mortgage payments, but a borrower should not hesitate to contact help — perhaps a bankruptcy attorney or a foreclosure attorney — at his or her earliest opportunity.

Not all mortgage lenders will move this quickly on a foreclosure process, but according to Texas law, they have the right to do so.

Source: KeepMyTexasHome.org, “The foreclosure process” Dec. 20, 2014

Title issues or disputes can delay real estate transactions

Real Estate Transactions

Despite careful planning and attention to detail, a number of unexpected issues can at least temporarily stop real estate transactions in their tracks. Title issues are one such example of these costly delays. Problems clearing titles crop up frequently for those trying to close on real estate deals.

Some of these issues include: A separate party claiming ownership; one or more liens on the title; fraudulent title transfers; judgments against the property including creditor judgments and divorce decree judgments; titles involved in foreclosure proceedings; titles naming the wrong person as owner; and many others. Any one of these can create time and money-sucking legal issues, effectively derailing real estate transactions.

For developers and entrepreneurs who are not familiar with real estate law, title issues can even result in losing the property altogether, often without recovering any initial investments already made. While a good way of preventing these delays is executing careful due diligence into the property before signing anything or spending any funds, investors cannot always anticipate title issues. This is where a real estate attorney can save the day.

Attorneys understand local geography, the types of legal issues that may arise and successful legal techniques to help avoid disaster. Even better, they can quickly and easily perform preliminary tasks like titles searches and looking into the title’s history. In short, getting legal representation ahead of time enables real estate transactions to proceed smoothly, quickly and in a hassle-free manner.

If you are an investor, develop or in some other way involved in real estate, our informative web pages on the legal issues of making Texas real property deals can help you determine what, if any, legal representation you may need.

Tax benefits for older and younger family members

Heirs & Beneficiaries

When you are picking a beneficiary, you have a lot of choices. For many people, the spouse is the clear first choice, since an individual retirement account can simply be transferred into the spouse’s name, making the whole process very seamless. As you will see, though, there are tax benefits to take into account, and they often relate to the age of the person that you choose.

To understand this, you have to think about how long the person is expected to live, as the payouts and tax deferments are tied directly to this. If you choose someone who is 60 years old already, he or she has far fewer years to take advantage of this than if you choose someone who is just five years old. The longer the deferments can last, the more beneficial they are going to be.

For this reason, many people will not give their IRA accounts to their spouses or their children, but to their grandchildren. Other assets can be left for older family members in Texas, while these accounts can be given where they have the biggest impact and where they do the most good — to the younger family members. The older members still benefit in a more immediate way, which helps them the most, while the grandchildren are provided for on a long-term basis that they will appreciate as they grow up.

Do you want to learn more about this entire process or about what you need to do when setting up the transfer of an IRA? If so, you should check out our page on estate plan methods today!

How much do you know about property zoning issues in El Paso?

Real Estate Disputes

So maybe you have selected the perfect property in El Paso for your new home or office building. Before you get too invested, you need to make sure the property is going to be suitable. Is it zoned to fit your proposed plan? If you are planning to build a residential family home, you need to ensure it is not zoned for commercial use or zoned for residential if you want to build an office building. But that is not all you need to know.

You will need to know if there are parking requirements, right-of-way requirements, lot size requirements, and more. These are the types of things that developers and builders deal with all the time. But builders and developers, while probably more familiar with zoning laws and what they involve than the everyday person, also know that it often takes a zoning attorney to ensure everything passes the requirements before investing in an expensive property that cannot be used once it is built.

Property zoning laws can sometimes be modified or given special privileges to suit your needs by going before the proper government agencies with your request. Zoning attorneys are familiar with these types of cases and can help present zoning requests for a favorable decision.

You will also want to check to see how the surrounding property is zoned. If you are building a family residence, and a vacant lot exits nearby, you may want to ensure it is not zoned for commercial use. If it is, you may end up with a very busy convenience store, fast-food restaurant or gas station next door. Surrounding property is very important, whether you are planning a family residence or a commercial property.

Some types of zoned property also have tax exemptions, such as agricultural land. If you are requesting a zoning change, you need to be sure you know if there are any tax implications.

If you are not experienced with zoning laws and planning new development of land, there are many other things involved also, such as what inspections will be needed, what type of drainage is required and more. Seeking a zoning attorney can help you work through these issues.

For further information on things that you may need to consider, view our web page.

Dying without a will may result in troubled funeral arrangements

Will Execution

In past blogs, we’ve covered a number of consequences of dying without a will. A recent news story from another state involving a transgendered individual illustrates another reason individuals may want to invest in a will: to protect wishes regarding funeral or burial arrangements.

The story involves an individual who was born as a man but was living as a woman at the time of death. The individual had legally changed her name from a male first name to a female first name. She died suddenly in October of a brain aneurysm.

Friends and coworkers who identified with the individual as a female after years of seeing her with long hair, makeup and female clothing report being surprised when arriving at the funeral home. The individual’s hair had been cut, and the body was presented in men’s clothing. A published obituary reportedly made no mention of the individual’s life as a women but did detail a failed marriage and thing such as a love of jazz and baseball.

Coworkers and friends are reportedly upset at the presentation of the individual and the tributes, which were arranged by the individual’s parents. Friends writing on the memorial page are referring to the individual as a female, and some have been outspoken in news media about the issue. The family has not chosen to comment publicly on the issue, stating that it is a family situation.

Not every funeral will involve a gender issue, but many people have specific wishes for how their remains should be treated. One example is the choice between traditional burial and cremation. A will can lay out some of these particulars, reducing burdens on loved ones and ensuring arrangements are in keeping with your personality and wishes.

Source: NY Daily News, “Transgender woman buried by family as a man at Idaho funeral” Nicole Hensley, Nov. 24, 2014

Why a guardianship may be used in Texas

Guardianships

People often think of guardianships in Texas as establishments that are primarily set up for minors; if someone does not have a parent or relative to take care of them, a guardian can be given that responsibility. While this does happen, it is also important to remember that these arrangements may also be used by people as they grow older. In fact, the elderly tend to use them because:

– The effects of aging are getting to be too much.- They have limited mobility or physical abilities.- They are suffering from diseases or other health conditions.- They are suffering from mental ailments.- They need help with day-to-day activities.

The downside to a guardianship is that the rights of the first person, also known as a ward, can be diminished. The guardian is then able to make decision on that person’s behalf. This could include decisions about the ward’s health, assets and estate plan. In some cases, a guardian may be in charge of distributing money or authorizing purchases.

Courts can put specific limits on how much power and authority a guardian has. Because this is such a serious situation, there are legal steps that must be taken to make sure that everything is done properly.

On the other hand, a guardianship can be very helpful. Someone who is suffering from any type of ailment can get the help that he or she needs. As long as the right boundaries are respected and the person’s rights are not infringed upon, this can be a very helpful and positive change in his or her life.

Source: Texas Department of Aging and Disability Services, “A Texas Guide to Adult Guardianship” Dec. 01, 2014

Texas real estate purchases: why a title search?

Real Estate Disputes

If you are buying or selling property in El Paso, Texas, and you are not versed in real estate law, you probably don’t want to attempt to go it alone. Real estate procedures and laws can be very complex. Anyone who is not a first-time home buyer probably knows that there are tons of paperwork that must be signed when closing on a house or piece of property. Did you ever wonder what all that paperwork was about?

There are certain steps that must be done before closing on a new home or piece of property. Besides the normal home inspection that takes place to ensure the home is up to par, there is another inspection to be done — a title search. Most people assume just because the property is being sold, the title is free and clear, or will be transferred directly from the lender. Unfortunately, it is not always that simple. When a home is bought or sold, that is often the time when someone discovers additional liens or judgments exist on the property.

That is why a title search is performed. Some of the issues that may show up could be a second mortgage holder, a judgment against the home from an unpaid debtor and occasionally even an old lien on the property that was made against a previous owner could show up. To see additional issues you might run into with property titles, click on our website.

You should also be aware of laws regarding property titles in your state. Different states have different laws regarding how titles are handled by mortgage companies, such as whether your state is a lien theory state or a title theory state. Texas is a title theory state, where a lender holds the title to a borrower’s property in a Deed of Trust. In a lien theory state, the borrower holds the title, and the lender has a lien against the title until the loan is paid.

Before moving forward to sell or purchase your home, you should ensure a thorough title search is done on your property. Everything must be handled properly, as even an incorrectly spelled name can create chaos or cause litigation down the road.

Not all foreclosures are on the up and up

Foreclosure

Regulators are investigating a firm that collects mortgage payments after allegations that the firm’s actions are leading to homeowner foreclosures that are not necessary. According to reports, the firm, Ocwen Financial Corp., collects payments from residents in Texas and elsewhere. Investigators say that the firm may have participated in less-than ethical activities, including things such as backdating letters.

The company branded itself as a firm that was more helpful to homeowners in crisis than big banks, but a lawsuit claims the firm is illegally charging high fees in addition to engaging in business practices that are deceptive. According to investigators, there is evidence that the company sent thousands of backdated letters to homeowners. Because the letters were dated in the past, it created the image that homeowners had missed deadlines for filing paperwork to prevent foreclosure.

One couple in another state purchased a home in 2002. In 2011, Ocwen supposedly found an issue regarding missing property tax payments, and the firm added an $18,000 lump sum payment requirement to the couple’s bill. Unsurprisingly, the couple couldn’t make that large payment, and the firm reportedly stopped accepting their regular monthly payments.

The couple, who is still struggling to keep their home, says the firm claims they owe much more than they borrowed, even though they made on-time payments for almost a decade. Ocwen has filed for foreclosure and continues to send the couple large bills, but the couple is fighting back on a legal level.

A number of things can lead to a mortgage default. Individuals may have a sudden job change or crisis that means they struggle for a few months with payments, or paperwork and payments can be mixed up. When this happens, some banks are more aggressive than others in seeking foreclosures, which means homeowners have to be aggressive with legal options to fight for their homes.

Source: Texas Public Radio, “Firm Accused Of Illegal Practices That Push Families Into Foreclosure” Chris Arnold, Nov. 18, 2014