The Responsibilities of a Caretaker

May 29th, 2015

Taking responsibility for a loved one who is incapacitated or physically weakened can be stressful to say the least. This task can be even more daunting if the loved one is an elderly parent or spouse. Most individuals do not like to contemplate death and having these conversations can be difficult. The first question that you must ask is “Have you seen an attorney to create a will?”

There are a few steps an elderly parent or spouse must take if suffering from a terminal illness such as cancer, Alzheimer’s, or ALS. First, the individual must set up a financial power of attorney. Second, the individual must then set up a durable medical power of attorney. Third, the individual must decide whether to have a will or allow their estate to pass intestate. This is the most important consideration and should be discussed at length with an experienced attorney.

There are multiple options an individual may consider when dividing a loved one’s estate. The size and nature of the individual’s assets will determine the method an experienced lawyer will utilize to ensure the estate is allocated according to the client’s wishes.  Options include an attested Will with a self-proving affidavit, a Revocable Trust, or an Irrevocable Trust. These are just some of the choices an experienced estate attorney will discuss with an individual to ensure that his property and assets are safeguarded after the individual’s death.

Some estates, even minor estates, may be tricky to control and divide up according to the elderly parent’s or spouse’s wishes so it is wise to consult an experienced attorney to ensure that the estate’s property is properly taken care of after the loved one’s passing. Many people attempt to take the less expensive path by either going on some of the do it yourself websites, or by attempting to make a holographic will. Either option leaves open the likely possibility of an inaccurate or incomplete will. Such mistakes could actually end up costing far more than that initial lawyer would, especially if the estate ends up being contested in court. Your loved ones worked hard their entire lives to accumulate their assets, and it is imperative to consult an attorney who has the expertise to protect their estate.

The job of an attorney is to address their client’s needs by ensuring that an estate is properly documented and distributed according to the client’s precise wishes. Taking the inexpensive ‘do it yourself’ path may result in the needless reduction of an estate or may cause the assets of the estate to pass to relatives that the elderly parent or spouse did not originally intend. If for example a spouse wishes for all of her property in the estate to go to her husband but fills out a form on some website (to save a buck) and the form is defective or does not follow a specific Will’s Act Formality in Texas, then the will could be invalid. If a child contests the document in probate and wins, the property could pass intestate, and the children – not the husband – may receive some or all of the spouse’s estate. Situations such as this occur frequently.

It is important to seek an experienced attorney to ensure that the elderly parent’s or spouse’s property is distributed according to their wishes. Cheap alternatives give cheap solutions, and may create a more expensive problem when attempting to probate the estate. Consulting a lawyer to complete a will may cost a little more, but it is a small price to pay to ensure a loved one’s estate is properly distributed as intended without the considerable stress and cost of unnecessary litigation and related expenses.

Holographic Will in Texas

May 22nd, 2015

To properly provide for your family after your death a Holographic Will is a limited option that ensures your hard earned estate passes by your wishes and not by Intestate succession. A Holographic Will in Texas requires the following elements:

  1. The Will must be in writing.
  2. The Will must be entirely in the Testator’s hand.
  3. The Will must be signed by the Testator.
  4. The Will must have Testamentary Disposition (specifically states who gets what).
  5. The Will must have Testamentary Nature (intent to make a gift at death which is irrevocable after death).

Though unadvisable, this is one way to leave your property go to whom you want upon death. Holographic Will can be tricky, and if it is not done properly the entire estate could pass Intestate, which means the State and not you decide where you property goes after your death.

The Holographic Will must be in the complete handwriting of the testator (person who is making the Will). Texas follows the Rule of Surplusage: this states that any part of the Holographic Will that is not in the testator’s handwriting will be ignored completely and stricken from the Will.  Word such as “bequeath, I devise, I give” must be in the testator’s handwriting to show both (1) the testamentary disposition and (2) the testamentary nature/intent.

Texas only allows Holographic Wills to be valid if the entire Will is in the testator’s handwriting and the Will must be signed by him/her. The “signing” can be an X or some identifying mark given from the testator and does not have to be his specific name if illiteracy is involved. If an individual wishes to draw an X because of his/her illiteracy or weakness, it still may be valid in probate.

A Holographic Will is an easy way to ensure your possessions are given to the right people, your estate is divided equally among your surviving children, or all of your property goes directly to your spouse. Holographic Wills can be written on anything and still be probated in court if the author follows all of the guidelines in the Texas Statute 251.052 in the Estate Code.

To fulfill a Holographic Will the testator must describe the property he wishes to give, then describe the person or persons the testator wishes to receive the property. The testator must sign his name or other identification marker at the end of the handwritten Will. It is safe to date the Holographic Will as well to give more evidence of its truthfulness. Additionally, the Holographic Will does not have to be attested to by two witnesses such as in the case of another Will.

A Holographic Will may ensure your property is given by your command and not the State’s, but if not proposed and executed correctly, the whole Will may not be invalid. It is wise to contact an experienced attorney and have proposed a standard typed and witnessed Will with a self-proving Affidavit that ensures your estate is divided and given according to your wishes. It is not wise to take the cheap path when planning your estate, but if you have no other choice a Holographic Will should be looked at as a last resort to ensure your possessions reach the destination you wish. For large to moderate estates a more prudent course of action to ensure your intent is served is to create a revocable trust or a self-proving affidavit attached to a formal Will.

These methods, if done correctly, will ensure that no interested party can contest your Will during probate as a proper Will is more iron clad than a Holographic Will. A Holographic Will should only be used as a last option by the testator to cause his property to pass according to the author’s intent and specific wishes.

The Emotional Stages of Divorce

May 16th, 2015

In 2014, The United States at 53%, had the 10th highest divorce rate in the world! According to the Forest Institute of Professional Psychology: 50% of first marriages, 67% of second marriages and 74% of third marriages end in Divorce in the United States.

Marriages do not break up overnight. There is not one incident or one party that ends a marriage. Your emotional break up usually extends over several years with the marriage parties continually at different stages in the emotional process.

Just remember,” no marriage is totally bad nor totally good!” Do not go fault finding!  Both partners stay in a marriage for a longer period of time because there are good things about it. Now the couple is divorcing because the “bad” things make the marriage not work anymore.

A new divorce survey by Slater and Gordon Law Firm (survey of 1000 divorced people) recently came out with some very interesting results:

  • The average person will spend about 2 years thinking about a divorce before they file.
  • During this time the average person spends 18 months really trying to fix their marriage and working to save it.
  • 76% try to fix their marriage problems before deciding on a divorce
  • 53% discuss divorce with someone besides their spouse before filing
  • 36% spoke with an attorney before deciding on a divorce

What are the emotional stages a couple will experience leading up to a divorce?

1. Disillusionment of one / two marriage partners ( not verbalized to other partner)

  • Continued, ongoing feelings of discontent, pent up resentments and breach of trust
  • Emotional feelings of anxiety, anger, denial, depression ,fear, grief, guilt ,and  love
  • Real problem but unacknowledged
  • Developing greater distance, lack of mutuality, and increase in arguments
  • Consideration of pros and cons of possible divorce and/or separation

2. Verbalized Dissatisfaction ( no legal action yet)

  • Feelings of anguish, doubt, emotional, grief, guilt, relief, and tension after expression of discontent is now in the open!
  • Marriage counseling and giving “one last try” for the marriage

3. Decision to Divorce ( no legal action yet)

  • Feelings of anger, anxiety of the future, guilt, resentment, and sadness
  • Other partner now in emotional stage one and both parties feeling victimized by each other.
  • Realizes this decision is usually not reversible

Divorce Decision Action (the legal process begins)

  • Feelings of anger, blame, shame, fear, and guilt
  • Emotional and physical separation
  • Going public with decision to family and friends
  • Dealing with the “Children Problem”. No way around this one.
  • Hiring an attorney and start the divorce process

4. Acceptance of Divorce / Single Life ( during the legal process or after)

  • Many life adjustments: emotional, mental, and physical
  • Realization that the marriage was not fulfilling or happy
  • Dealing with your children and helping them to understand they are loved and did not cause the end of the marriage
  • Work on developing the “new single you”, new identity and a plan for the future!

This emotional roller-coaster may take years to complete, but keep focused and you will get through it.  Surround yourself with competent legal professionals who will help you through this life changing event.

Just remember this: the divorce emotional stages are a normal occurrence when going through a divorce.  Outside of a death, divorce is one of the most life changing events in an individual’s life.  This list is very basic and you will probably add many other emotions on to the list You are not alone. It is a grieving process and you will recover.

Serving clients throughout Texas, including Collin, Dallas, Denton, Ellis, Grayson, Kaufman, Rockwall and Tarrant counties and the communities of Addison, Allen, Arlington, Carrollton, Dallas, Fort Worth, Frisco, Garland, Grapevine, Highland Park, McKinney, Mesquite, Plano, Richardson, Rowlett and University Park, Murphy,Wylie, Lewisville, Flower Mound, Irving, along with surrounding DFW areas.