All posts by James London

Residents fight back on foreclosure

Foreclosure

Individuals who are faced with foreclosure or adverse lender action can be overwhelmed. Not only might some Texas homeowners already be in financial duress, but facing large mortgage lenders who can afford to litigate cases can be frightening. One couple in another state fought back against a foreclosure on their home and won both the case and a bid for attorney fees.

The homeowners received a mortgage in 1998. According to reports, one company originated the loan, but it was serviced by Washington Mutual. According to allegations from the couple, Washington Mutual wrongfully foreclosed on their property. The foreclosure allegedly occurred in 2008.

In the same year, Washington Mutual was purchased by Chase. The couple sued Washington Mutual in 2009 over the wrongful foreclosure, and in 2010 a motion was granted to Chase, allowing it to intervene in the suit because it held interests in the loan.

According to reports, the case was ultimately decided against Chase. The court ruled that the couple owned the property in question. It also ruled that Chase had created false documents regarding ownership of the mortgage. The court ruling voided the Chase documents and the foreclosure.

The couple, who had spent around a quarter million dollars on legal fees for the battle, then filed a motion to have Chase reimburse the attorney fees. The court allowed the motion and required Chase to reimburse the couple $255,135. Chase originally appealed the ruling, stating in part that the couple was excessively billed due to too many attorneys being involved. The couple’s law firm pointed out that Chase itself had four attorneys involved.

The appeals court sided with the couple again, forcing Chase to reimburse them for legal fees. In the end, it was a very positive outcome. Not all foreclosure proceedings have such outcomes, but homeowners who understand their rights and are willing to stand up for them have a better chance at a positive outcome than those who do not.

Source: HousingWire, “Chase’s fraudulent foreclosure: Court finds for plaintiffs“, July 2, 2014

Texas’ court appointment of guardianship may be ready for change

Guardianships

Sometimes the best intentions start out to be noble, but then somehow they get twisted and turn out doing more harm than good. That’s what advocates that are pushing for reform of the Adult Guardianship System in Texas have discovered. The program allows the state to have a guardian appointed for elder individuals who find themselves a ward of the state because they are unable to care for themselves.

One advocate is using what happened to a friend as an example of how the program may sometimes do more harm than good. Her friend, who was an 85-year-old woman, found herself an unwilling ward of the state after she passed out in a restaurant. After being taken to the hospital, it was determined that she was unable to care for herself. She was forced, against her will, to go into a nursing home and was given a legal guardian by the court. Then her home and possessions were put up for sale — no doubt a decision she would not have made, and may not have even known about. The woman died shortly thereafter. Friends and family are thinking that the guardianship did her more harm than good.

In Texas, there are about 46,000 individuals who have guardians assigned to them. More than 4,500 petitions for adult guardianship were filed between Sept. 2011 and Aug. 2012. Advocates are hoping to decrease these numbers, making guardianship a last option for elderly people. They are in favor of supported decision-making for the elderly as long as they can still make some decisions for themselves.

Like the 85-year-old woman, there are others who have had to fight to get their rights back after being put under guardianship. It will take an attorney, but they can fight to regain their independence.

The best option, however, is for people to plan their own guardianship before they become completely unable to care for themselves. By creating a will, a person can choose someone they trust to carry out their desires and intentions. This way, there is no possibility of a stranger making decisions for them that may not be in their best interests.

Source: National Association to Stop Guardian Abuse, “Advocates Push for Reform of Adult Guardianship System in Texas” No author given, Jun. 26, 2014

Internet makes life easier, but can impede estate administration

Estate Planning

Texas residents are using Internet resources for more and more each day. Banking, investment accounts, correspondence and storing photographs are just a few tasks that many now do through online access. However, this might hinder their heirs or beneficiaries in handling estate planning or trust administration. Refused access to password-protected information might be a real problem.

Most people are aware that different sites have different terms and conditions when it comes to access. Reportedly, Google has a specific setting that applies to a deceased or disabled user. It can be preset to allow a successor to use the account. Preventing probate delays or the necessity for a court ruling in some cases can be successful with thoughtful preparation of an estate plan.

Experts suggest including digital assets in your will or trust as you would add in your physical assets. A will and power of attorney can specifically address these digital accounts, allowing for easier asset valuation and distribution when you are gone. A trustworthy person needs access to your secure user and password list. Software applications exist to provide encryption and helpful password management for all your devices and websites. Your executor or attorney-in-fact might be the right person to trust with this task.

An example of problems accessing digital assets after a loved one is gone involves a 20-year-old marine who was killed in 2004 while serving overseas. His family had the difficult job of estate probate and settling his affairs. Because his email provider refused access to the father, a drawn-out court case ensued. Eventually the provider turned over a transcript of the account. Some states, including Oklahoma, are fine-tuning laws to help clarify and make fair these processes.

Including a plan to avoid difficulties should something happen to you will help protect your digital estate. A good way to start is with an experienced evaluation of your present online life. A sound plan can follow. A Texas estate planning attorney can advise you on how to protect these digital assets while allowing the people you choose to access them after your death without having to jump through hoops.

Source: The Evening Sun, “Financial Consulate: The crucial importance of creating a Digital Estate Plan” Ryan Fox, Jun. 13, 2014

Texas spouse sues ex-husband over fraud by nondisclosure

Foreclosure

A woman is filing a civil lawsuit in the Texas courts against her former husband, stating he hid facts during their divorce that caused an unequal division of property.

According to reports, the couple had been married for three years, were both living in the house, and during that time, the husband maintained the property was in foreclosure. Thus, the home was not included in the division of assets and property.

The wife maintains the husband had continued to live in the home as late as last year, and she disputed the allegation that it was in the foreclosure process. The suit alleges that the division of property was not completed correctly at the time of the divorce. The plaintiff is asking the home be sold immediately and profits divided equally between the two parties.

The wife’s charges include breach of contract, breach of fiduciary duty, fraud by nondisclosure and common-law fraud. The plaintiff is also requesting a temporary restraining order and demanding the defendant assume responsibility for all court costs and damages.

With much of the country suffering the loss of their homes following the recent recession, there have been numerous victims of the mortgage crisis. Losing one’s home and going through a dissolution of marriage are two serious life-changing events.

If you have been involved in the loss of your home along with fraudulent concealment of assets by an ex-spouse, you have the right to speak to someone who can provide wisdom and experience in representing the complications of asset division involving foreclosure. Find someone who can provide sound and results-based information to help guide you through the trauma of loss of your relationship and your dwelling.

Source: Southeast Texas Journal, “Woman demands ex-husband sell home” Matt Russell, Jun. 12, 2014

Many documents are essential for a good estate plan

Heirs & Beneficiaries

Many Texans know that having an estate plan in place is important for protecting their assets and making sure their finances are handled according to their wishes. To many, estate planning simply means drafting a will. While this is certainly an important part of a plan, there are many more documents that should be considered as well. Even if your estate planning is very thorough, it’s important to keep your documents up-to-date, especially after big life changes such as a new child, marriage or divorce.

Aside from a will, some of the most important documents to consider preparing include a power of attorney, a health care proxy and a revocable living trust. A revocable living trust in particular can expedite your property’s transition process after death as well as making sure that your assets are managed correctly should you become incapacitated. These types of trusts also allow for greater privacy than a will.

Being incapacitated can cause just as much mayhem for a family as passing away if a solid estate plan is not in place. With life expectancies continuing to rise, incapacitation is becoming increasingly more likely before death. This is where powers of attorney come in. A durable power of attorney grants a specific person permission to make financial decisions on your behalf. Similarly, a health care power of attorney, or health care proxy, can be established to make medical decisions for you if you are no longer able to.

Once documents like these are in place, they cannot simply be forgotten. Over time, different circumstances might lead you to desire a change in your will’s beneficiaries or an adjustment in the trusts you’ve set up for your children. You might also wish to change the person you’ve established as a power of attorney. Changes in tax laws can also necessitate a review of your estate planning documents. On the whole, Texas residents who want to prevent family chaos after their death should consider the various estate planning strategies as soon as possible and then review them consistently.

Source: MainStreet, “Estate Plan Overhaul: Time to Shape Up Your Strategy” Bruce W. Fraser, Jun. 10, 2014

Community property survivorship in Texas

Heirs & Beneficiaries

Historically in Texas, surviving spouses only received half of community property assets. The other half would go into probate to be divided according to state law. After numerous attempts to change the law, a 1987 legislation that amended the state constitution finally passed. The legislation modified estate law, providing spouses with more control over distribution of assets when it comes to community property.

The law provides spouses an opportunity to enter into a Community Property Survivorship Agreement. The agreement lets spouses indicate that any portion of the community property goes to a surviving spouse — including a designation of 100 percent of the property, if so chosen.

The Community Property Survivorship Agreement doesn’t cover all property. For example, if a wife inherits a home from her sister, the property belongs to her as an individual. In order to leave the home to her husband in the event of death, she would have to make it community property or transfer it to him in a trust or will.

Estate planning documents should also be used if a spouse doesn’t want 100 percent of assets to go to a surviving spouse. For example, if a couple has a bank account considered community property, half of the assets in that account belong to the husband and half to the wife. The husband may want his half split between all heirs — including his wife and children — if he dies. In this case, a trust or will can ensure his wishes are carried out despite the community property arrangements.

In Texas, as in any state, estate planning can be a complex affair. You don’t have to be wealthy to have an interest in protecting the future of those you love. Planning ahead can reduce stress and duress for your family.

Source: My San Antonio, “When to Avoid using Community Property Survivorship” Paul Premack, Jun. 04, 2014

In Texas probate court, bonds a clear-cut arrangement

Estate Administration

It is a common misconception that bonds are not needed in personal representation of the estate of another. Even if a will does not specify a probate bond, the Texas court may rule that you need to complete a bond.

A bond represents an agreement similar to a promissory note. In the legal world, it translates into protection of estate funds. The courts prefer it when there is a written commitment of one’s fiduciary duty regarding the estate of another. A court-appointed authority makes a judge uneasy, as there is little control over the actions of another. Even legal representatives have been known to act inappropriately, so the presence of a bond implies protection.

A bond represents an arrangement in which a borrower’s obligations are clearly delineated, and therefore, calls for better and more effective accountability. It allows for what happens if the personal representative violates their fiduciary duties.

The courts may ask for an added layer of security by requiring a bond with sureties. This requires the personal representative to exert extra care in the reliability of his or her performance. While a judge may feel safer by an added obligation of protection, there may also be increased access to other resources in case a recovery is required. Sureties, in this case, act like a co-signer, who takes on the debt should it default.

In cases like this, a corporation can provide services on a bond for a charge. Additional individuals with considerable assets can also cover the estate’s value, thus representing sureties for a bond. Both instances vouch for a personal choice of a representative and take on the added accountability for their performance.

In some cases, relatives or family members leave wills attempting to gloss over the necessity of a bond. However, the next best option is to obtain a waiver of a bond’s sureties.

Real estate law, bonds, wills, estate administration and probate issues in the state of Texas are complex matters, not for the faint of heart. Especially when emotions and family enter the mix, you need the trusted services of legal professional who will participate actively in protecting your best interests and those of your family. Do not wait until the court steps in to make an unsavory ruling. Make sure your will and probate plans are ironclad for you and your family to avoid problems later.

Source:The Lowell Sun, “Probate bond is always needed” James Haroutunian, May. 30, 2014

Guardianship: Who will get your children if you die?

Guardianships

Not even our El Paso readers like to think about dying, but it will sooner or later happen. The question is “when” and few of us can predict that. Therefore, like insurance, we should take care of preparing for our loved ones in the event it happens.

If you have a will or an estate plan, you are ahead of the game. If you don’t, you may be wondering why you need one. Let’s start with the most important reason.

What’s going to happen to your children? Who will get guardianship over them? If you do not designate a legal guardian, a probate judge may be deciding the fate of your children as well as what assets they get. A will allows you to designate a guardian of your choice.

It also, of course, allows you to decide how you would like your estate or assets divided. You may have treasured items that you would like a specific family member to have. If you don’t do your estate planning now, an outside party will do it for you.

Preparing a will or trust makes you take inventory of your assets. You can select who you want to handle your finances, investments and other important matters. Designate your beneficiaries.

Select an executor of your will. Someone will need to handle the distribution of your assets. You will want to choose someone who is not only trustworthy but also responsible and organized.

What if something happens to you where you become incapacitated? You may want to assign a power of attorney, where someone can handle your financial decisions in case you are unable. You can designate when they can or cannot use the power of attorney.

A living will, or advance medical directive, allows you a say in your medical care. In a living will, you can make all of your health care decisions while you are able. In case you are not able, you will have a written directive of your decisions. This is a good safeguard in the event that you are in a serious accident and are unable to voice your decisions.

Source:insurancenewsnet.com, “Estate Planning: Get Ahead” No author given, May. 30, 2014

Estate-related legal issues to consider when moving state

Estate Administration

Whether you’re moving into or out of the state of Texas, it’s important to consider all the legal and financial ramifications. One area to take a look at is estate complexities that can occur when your wills or other documents are somehow linked to the state of origin. Though a properly executed will should be valid in any state, it doesn’t hurt to review your estate planning for things that could cause issues in your new state.

One thing you’ll definitely want to review involves legal documents relating to medical concerns. Health care powers of attorney, living wills and directives may all be governed differently in your new state. To ensure your wishes are carried out during an end-of-life situation, have documents edited or changed to reflect appropriate state laws.

Your will or other estate documents might also reference certain state laws within the text. As a resident of a new state, those references may no longer have any effect and could complicate the administration of your estate. To avoid complex probate issues or confusion, make sure your documents are edited to remove state references or are brought in line with appropriate regulation in your new state.

Another area of concern to couples with estate planning documents in place is whether a state is a community property state. Texas and many other states operate on the basis of community property, which changes the way assets are handled in the event of a divorce or death. When relocating to or out of a community property state, review estate documents to ensure proper protections are in place for heirs and surviving spouses. The best advice would be simply to have a professional examine your documents before your move.

Source:The Spectrum, “State-to-state estate planning creates issues” Scott Halvorsen, May. 22, 2014

Texans, protect your assets by sound estate planning

Estate Planning

It is a common misconception is that you need to belong in a high tax bracket in order to have an estate plan. According to experts, though, everyone has something of value to leave behind. This is especially true in Texas, where not everyone owns a cattle ranch or comes from an oil-rich family.

Everyone should have a will and a plan for the property and assets they leave behind. You may not have a huge amount of money in the bank, but you do have something. Your home, vehicles, furniture, investments, pension, insurance and Social Security benefits are all part of your estate, and it is never too soon to start planning.

If you become mentally incapacitated or die, consider designating a caretaker of children and your finances.

We want our beneficiaries to enjoy a smooth transition of estate and assets, a stress-free life. Sound planning ensures children and grandchildren will be fairly treated to avoid squabbles later. Think about who you trust to manage your assets if you become disabled or pass away.

A durable power of attorney is a legal provision that can prevent your affairs from being mismanaged. You can include access to bank accounts or stocks for a spouse or child and spell out directions for selling your house.

Estate planners recommend declaring who will be your guardian should you become incapacitated. The person you select must be trustworthy and able to act in your best interests.

You may want to appoint someone for your health care power of attorney. This should be someone you trust to make important decisions for you if you are unable. This designated individual to might need to give advanced directives to physicians and reflect how you view life-sustaining care.

What we leave behind is not always represented by monetary value. We choose our legacy by not putting off decisions about estate planning but by making smart decisions while we live. In Texas, there are competent individuals who dedicate their careers to making sure you go to your final resting place at peace with the decisions you make. Seek help with your estate planning regardless of your perception of its wealth. The choices you make can affect how you will be remembered by your loved ones after you are gone.

Source:Mail Tribune, “Don’t have an estate? It still pays to plan as if you do” Pamela Yip, May. 18, 2014