Texas Wills : What Makes a Valid Will in Texas
At the Dallas firm of The Nacol Law Firm PC, our lawyer Mark A. Nacol, offers more than three decades of experience in resolving probate matters and contested wills. Our trusted legal counsel has assisted numerous clients throughout Texas.
For more information on Texas probate law and will contests, from Dallas Probate Attorney Mark Nacol, contact us today at (972) 690-3333.
Sealing the Deal: Contracts – A Smart Investment (Part 1)
A legal contract is an important tool for businesses both large and small. Unfortunately, we live in a very litigious society and the days of the simple handshake to finalize a deal are, for the most part, over. Scrimping to save on costs at the beginning of a project may cost your company tens of thousands of dollars in the long run. Be careful of boiler plate contract forms. While they may spell out certain legal rights, they may also fail to include other vital provisions that will negate future disputes. Every contract should be read thoroughly and should you find a provision to be unclear, ask questions. If the terms of a contract are vague or excessively one-sided, you may end up unnecessarily in court. Both parties should gain value from the contract. Clear contracts make for happy profitable business relationships.
A contract should clearly define the terms of the parties and spell out exactly what the project entails. It formalizes the agreement, clarifies communications, and provides a predetermined recourse for when things go wrong. It may include payment terms or conditions, protection of trade secrets, restrictive geographic scopes, timelines, warranties, exclusions, cancellation clauses, penalty clauses, etc. A good contract keeps energies focused on the underlying project and allows the parties to get things done more efficiently. Therefore, a contract must not only be clear, it must also be concise.
A contract becomes increasingly important in times of dispute. A lack of clarity in a contract can lead to costly litigation. Remember, in a court of law, a written contract trumps an oral contract. To coin a phrase, “the written pen is mightier than the tongue.” In other words, in instances where written and oral portions of a contract contradict each other, the written portion prevails. Disputes can be minimized if the hard-line terms are negotiated and spelled out at the beginning of the relationship when the contract is being formed.
Some essentials to consider when creating a contract are as follows:
- Parties to the agreement should be spelled out
- There should be some consideration offered for the agreement
- Parties should be competent to contract. All persons are legally authorized to contract except the following:
- Minors, who are under 18 years of age.
- Mentally incompetent persons
- Persons ineligible from entering into contract by law
- Free consent to the agreement
- Object of agreement should be lawful
- Detailed description of the duties and obligations of the parties
- Representations concerning warranties
- Confidentiality clauses
- The force majeure clause which generally provides that no party will be liable for non-performance arising out of an event of force majeure e.g. war, terrorist act, epidemic
- The terms of the agreement between the parties should be specific
- Events on occurrence of which the contract will be terminated should be specific
- A method of giving notice for breach and providing the breaching party a time to cure (generally a party who has suffered due to a breach of contract can claim damages that will put the non-breaching party in the position they would have been in if the contract had been performed)
- Relief available to one party on the breach of the other party
- Arbitration or mediation clause
- Termination or duration of contract
There are many forms of contracts, to be discussed in Part II of Sealing the Deal: Contracts – A Smart Investment.
Nacol Law Firm PC
Law office of Attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
Trade Secret Misappropriation
The digital age has made it difficult for entrepreneurs big and small to keep their company secrets success. Texas is rapidly expanding in population and new businesses. Start-up beverage companies, young digital programmers, or any other young thriving companies need to be cautious and protective of their proprietary information and trade secrets. A trade secret may be a new formula, a recipe for a beverage, a new digital marketing program, or any other type of proprietary information that is not generality known to competitors in the public.
If a secret to success is intentionally misappropriated, copied or reversed engineered and an entrepreneur is damaged there is a legal remedy. Misappropriation of trade secrets occur in Texas when the following occurs:
- A trade secret exists;
- The trade secret is improperly acquired through a confidential or contractual relationship or by other improper means;
- The defendant uses the trade secret without authorization from the plaintiff; and
- The plaintiff sustains damages because of the misappropriation.
Often misappropriation of trade secrets are by disgruntled employees. If an entrepreneur has a new innovative product, it is imperative that he has a securer and an enforceable contractual provision with all his employees that protects his trade secrets from competitors.
If a disgruntled employee or another competitor misappropriates trade secrets then the entrepreneur or company that was harmed by the misappropriation may seek civil remedies such as:
- Civil Injunction;
- Royalty-order Injunction; (forcing defendant to pay the injured party a reasonable royalty for any future trade secret use)
- Prejudgment and Post-judgment interest;
- Court costs and reasonable attorney’s fees; and
- Actual damages (if proven by clear and convincing evidence).
There are many remedies that an entrepreneur may exercise if his secret to success has been willfully and maliciously taken by a competitor or an employee. If you have been a victim of trade secret misappropriation and it undermined your idea or company, please find an experienced attorney that can remedy the illegal actions taken against you.
Julian Nacol, Attorney
Nacol Law Firm PC
972 690-3333
What Happens to Your Will After a Divorce in Texas
A divorce can be grueling is transformed by law, probate, and insurance decisions made prior to divorce. It is important to know exactly what will happen to your will and life insurance if this misfortune happens to befall your family. The family unit is important and if it is fractured the question of what happens to “my will”, “my life insurance”, or “my trust” is a relevant and important one that needs to be answered.
If you are divorced from your spouse then your previous will may be in many aspects considered revoked automatically. Under the Texas Estate Code § 123.001 after a valid divorce, all provisions in a will, including all fiduciary appointments, shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator failed to survive the testator, unless the will expressly provides otherwise. The translation of this states: if you receive a valid divorce then your will is in many respects revoked and your spouse and stepchildren will receive nothing from the previous will. The one exception is if the will explicitly states that in case of divorce the previous spouse or children will still inherit. This revocation applies to fiduciary appointments as well. For instance if you have a trust and your spouse is the trustee, then she will be revoked from the trust in its entirety.
If you divorce your spouse, then your spouse’s beneficiary status pertaining to your life insurance will be automatically revoked. Texas Family Code § 9.301 states an automatic revocation upon divorce and lists three exceptions:
- If the divorce decree names the former spouse as a beneficiary
- The individual adds the divorced spouse as a beneficiary to the policy after the divorce
- The former spouse receives the life insurance as a “guardian” of the children
These are the exceptions for life insurance. If you decide to divorce your spouse unless further action is taken, the spouse will not benefit from your death regarding the life insurance.
Finally, the inheritance of a divorced spouse in reference to a trust depends on whether the trust is revocable or irrevocable. If you have set up a Revocable Trust then after the divorce your prior spouse will automatically lose his/her beneficiary status within the trust. On the other hand, if you set up an Irrevocable Trust then regardless of a divorce the prior spouse will still inherit and be considered a valid beneficiary. A divorce will have no effect on an Irrevocable Trust. If you decide to create an irrevocable trust, be sure to understand that your spouse will inherit the assets in the trust even after a divorce.
In a Texas divorce, the law protects you from unchecked gifts to your prior spouse and stepchildren with regard to your will, life-insurance, and revocable trusts. The prior spouse will not take from these unless one of the few exceptions apply. Divorces are riddled with complexities and it is prudent to seek advice from an experienced Texas divorce attorney during these proceedings to ensure that the divorced spouse is removed completely from your will and does not reserve an argument to acquire your assets post-divorce .
What Happens in a Texas Divorce ?
Divorce can be frustrating, confusing, and resentful. Divorce is never a pleasant experience even in the most amicable terms. It is important to know what you are in for when a divorce is filed. An original petition will be filed, and your spouse must be served with a process server.
After service of the original petition, the Petitioner may file for a Temporary Restraining Order (“TRO”) to protect the child and marital estate. Once a TRO is granted by the District Judge, a temporary order hearing will be set within 14 days. This temporary order hearing is extremely important and will determine the direction of the case.
Temporary Order hearings are usually condensed to 20 minutes a side depending on the complexities of the case. Within this 20 minutes, you will have to put on evidence for your entire case regarding custody of the children, management of the marital estate, and any other considerations such as receivership of a business.
After the temporary orders hearing, the case will dive into full throttle litigation. Discovery on both sides is usually conducted including interrogatories, admissions, and production of documentations. The documents that are usually requested consists of bank statements, retirement pensions, social media pages, text messages, and emails. Each case requires specific Discovery requests that are narrowly tailored to the facts presented. Discovery can last months and usually follow with motions to compel and sanctions. In highly contested cases the rigors of discovery and compiling documentation can be brutal.
During the Discovery phase, Depositions may be warranted. Depositions consists of your attorney questioning your spouse and any other witnesses that are relevant to the case for impeachment purposes. Depositions are necessary if the case will go to a jury, because impeachment of your spouse is a necessity to prove your truthfulness.
Mediation is, more often than not, mandatory in Courts, but this is the general rule. Certain Courts in the Dallas, Fort Worth, and Collin county do not require mandatory mediation. Each Court has its own rules of procedure and requirements. If the Mediation fails to produce a settlement between you and your spouse, then the only thing left is trial.
Depending on the complexities of the case and assets, a trial can last half a day or be a three-day trial. Most trials are before the District Judge. Certain facts may give rise to a jury trial but a jury trial is more costly and can take up more time. After the trial is complete the parties will have to wait for a ruling. This can take days to months depending on the case and jurisdiction.
When the final ruling is given to all parties, the Judge will charge one party to create a final order that will be submitted to the Court. This can give rise to more litigation depending on the interpretation of the Judge’s rulings by both parties. Finally, when both parties agree to a final order or the Judge determines which version of the final order is proper, then the case will be over.
Divorce can be a painful process that lasts 6 months to three years depending on the circumstances and the nature of the parties involved. If you are about to file for a Divorce in the DFW metroplex call Nacol Law Firm so that you have an experienced family law attorney to represent your interests throughout the process.
Julian Nacol
Dallas Divorce Attorney
Nacol Law Firm PC
NACOL LAW FIRM P.C.
8144 Walnut Hill Lane
Suite 1190
Dallas, Texas 75231
972-690-3333
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization
