No Texas Will
It is difficult to contemplate one’s mortality. Life can be fleeting and one must prepare for not only their interests but for their family’s interest as well. By creating a will you may ensure that your assets are inherited by the people of your choosing rather than the state’s idea of what is proper.
To die without a will is to die “Intestate”. This means that the State (Texas) will determine the percentage of property that each family member will inherit after an individual dies.
An individual’s “property” is defined in two categories in regard to property of a husband and wife.
1.) Separate Property: (Texas Family Code§ 3.001) A spouse’s separate property consists of:
(a) The property owned or claimed by the spouse before marriage
(b) The property acquired by the spouse during marriage by gift, devise, or descent
(c) The recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
2.) Community Property: (Texas Family Code § 3.002)
(a) Community property consists of the property, other than separate property, acquired by either spouse during marriage.
The difference between separate and community property is significant when discussing inheritance. If a husband or wife dies without a will then the property will be divided differently depending on whether the property in question is community or separate property.
If a person dies leaving children from his or her marriage then his spouse will receive all of the community property. If there is a child or children from the deceased that have no relation to the surviving spouse, then the surviving spouse will receive ½ of the community property and the non-related child as well as the related children will receive the other half divided equally among themselves. Tex. Estate Code Ann. § 201.003 (West)
If a person dies leaving children from his spouse, or with children of no relation to the spouse, the separate property will be divided as follows: the spouse will receive 1/3rd of the separate property, and the children of relation will receive 2/3rds of the separate property to be dived equally among themselves. The spouse will also receive 1/3rd of the real property (land) in life estate with a remainder going to the related and unrelated children. This means that the spouse will only receive 1/3rd of the land for her/his lifetime then it will be equally divided between all the related and unrelated children equally. The other 2/3rd of the land will be equally divided between all the related and unrelated children when the individual dies.
Real Property has other exceptions and the Homestead Statues must be consulted if a Homestead is involved. If there are no children then the spouse will receive all of the separate property. (Tex. Estates Code Ann.§ 201.002 (West)).
This is a general overview of the laws for an individual who does not create a will before he/she dies. The Intestate Statutes in Texas attempt to make an amicable inheritance of an individual’s property that will prove to be fair and just for the majority of the State’s citizens. These Intestate Statutes are automatic and non-negotiable. If you wish to leave your assets and property to specific family members or non-related people, then you must have a will. A will gives you, not the state, the power to dictate how your property will pass when you die. Take some initiative and meet with an attorney so you can confirm and assume your specific desires are met upon death.
Tis the Season for Filing for a Texas Divorce
Welcome to January, the Divorce Month of the New Year! After a bad holiday season, many people have made the decision to file for divorce. The most popular months for filing divorce in the United States occur in January through March.
Going through a Divorce is painful no matter what the circumstances. When you decide to start the Texas Divorce Process, make sure you are financially prepared. Financial planning helps you in making sound decisions and start to prepare for your post-divorce life.
Below is a list of items you need to gather before counseling with an attorney. Financial Documents are a must to show what your true assets and liabilities are in the marriage.
Financial Documents needed when preparing for a Texas divorce:
- Tax Returns (at least three years) or Tax Liens and all IRS related documents
- Wills and Trusts with all attachments reflecting corpus and trust holdings
- Listing of all liabilities (including mortgages, credit card debt, personal loans, automobile loans, etc.):
-Name of entity, address and telephone number
-Account number
-Amount owed
-Monthly payment
-Property securing payment (if any)
-Most current statements and account status of lenders - A Listing of all Real Property, address and location, including (includes time-shares and vacation properties):
-Deeds of Trust
-Notes including equity loans and second liens
-Legal Descriptions
-Mortgage Companies and Loan Servicers (Name, Address, Telephone Number, Account Number, Balance of Note, Monthly Payments)
-Current fair market value
-Appraisals - Motor Vehicles (including mobile homes, boats, trailers, motorcycles, recreational vehicles; exclude company owned):
-Year
-Make
-Model
-Value
-Name on title
-VIN Number
-Fair Market Value
-Name of creditor (if any), address and telephone
-Persons listed on debt
-Account number
-Balance of any loan and monthly payment
-Net Equity in vehicle - Cash and accounts with financial institutions (checking, savings, commercial bank accounts, credit union funds, IRA’s, CD’s, 401K’s, pension plans and any other form of retirement accounts):
-Name of institution, address and telephone number
-Amount in institution on date of marriage
-Amount in institution currently
-Account Number
-Names on Account
-Company loans and documents related to benefits - A listing of separate property (property owned prior to marriage, family heirlooms, property gifted, inherited property):
-Records that trace your separate property. These assets will remain yours if properly documented - Retirement Benefits:
-Exact name of plan
-Address of plan administrator
-Employer
-Employee
-Starting date of contributions
-Amount currently in account
-Balance of any loan against plan
-Documents - Publicly traded stock, bonds and other securities (include securities not in a brokerage, mutual fund, or retirement account):
-Number of shares
-Type of securities
-Certificate numbers
-In possession of
-Name of exchange which listed
-Pledged as collateral?
-Date acquired
-Tax basis
-Current market value
-If stock (date option granted, number of shares and value per share)
-Stock options plans and related documents - Insurance and Annuities Policies and Inventory:
-Name of insurance company
-Policy Number
-Insured
-Type of insurance (whole/term/universal)
-Amount of monthly premiums
-Date of Issue
-Face amount
-Cash surrender value
-Current surrender value
-Designated beneficiary
-Other policies and amendments - Closely held business interests:
-Name of business
-Address
-Type of business
-% of ownership
-Number of shares owned if applicable
-Value of shares
-Balance of accounts receivables
-Cash flow reports
-Balance of liabilities
-List of company assets
-Possible hobbies or side businesses that generate income - Mineral Interests (include any property in which you own the mineral estate, separate and apart from the surface estate, such as oil and gas leases; also include royalty interests, work interests, and producing and non-producing oil and gas wells:
-Name of mineral interest
-Type of interest
-County of location
-Legal description
-Name of producer/operator
-Current market value
-needs leases or production documents related to the asset - Money owed by spouse (including any expected federal or state income tax refund but not including receivables connected with any business)
- Household furniture, furnishings and Fixtures
-photos
-purchase documents - Electronics and computers including software and hard drive
- Antiques, artwork and collectibles (including works of art, paintings, tapestry, rugs, crystal, coin or stamp collections) Other large collections need to be appraised! (Guns, quilts, action figures, books)
- Miscellaneous sporting goods and firearms
- Jewelry including appraisals
- Animals and livestock
- Farming equipment
- Club Memberships
- Safe deposit box items
- Burial plots including documents of ownership
- Items in any storage facility
- Travel Awards Benefits (including frequent flyer miles)
Love : Marriage and Divorce in Texas
With the U.S. marriage rate at an all-time low, 51% of adults were married in 2011 (US Census Bureau), only 29% of all divorced adults say they would marry again with women definitely in the negative on remarriage. Americans are also not in a hurry to marry. The median age of first marriages is a record high of 29 for men and 27 for women (US Census Bureau).
So what about the 48% of adults currently married? A new divorce report by the Slater and Gordon Law Firm in England who surveyed 1000 divorcees has reflected some very interesting findings:
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The average person spends about 2 years thinking about getting a divorce before they file.
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During this time the average person spent 18 months really trying to fix their marriage and working to try to save the marriage.
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53% discussed divorce with someone besides their partner before filing.
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36% spoke to an attorney before deciding to file a divorce
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76% tried to fix their marriage problems before deciding on a divorce
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53% said their split was amicable and 45% said they are still friends
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31% have no contact with their previous spouse at all!
How would you fit into this survey?
The Nacol Law Firm PC has expressed 8 of the top causes of Divorce!
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Lack of communication: A successful relationship constantly keeps in touch! When there is a loss of open ended communication on all issues affecting the marriage, families may fall apart quickly. Share your feelings, tell your partner what is happening, and listen to your partner.
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Money and Finances: If there are constant money problems or major disagreements on financial issues, you may have a serious martial problem. A team effort at all times bodes for a better marriage.
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Alcohol and Drug Addiction: Addiction is one of the most damaging and challenging problems spouses will ever face in a marriage. Because additive behavior touches everyone in a family most marriages are severely damaged years before a decision is reached to end the marriage.
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Domestic Violence/ Intimate Partner Violence: Family Violence is the willful intimidation, physical and/or sexual assault & battery or serious mental and verbal abuse perpetrated by one intimate partner against another. The frequency and severity of domestic violence varies dramatically and may include physical or sexual violence, threats, and emotional abuse. The violence is often accompanied by irrational and controlling behavior and is intended to result in total dominance and control over the other spouse /intimate partner or other family members.
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Trust and Infidelity Issues: Do you truly trust your spouse? Are their jealousy issues that occur with one spouse when other people are involved in your lives? A successful marriage is very difficult absent trust. If you do not trust your spouse the marriage is vulnerable!
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Spouse cannot understand or fulfill your needs and desires: this includes personal and sexual needs and common courtesies to each other. We all have different needs and desires. If you or your partner won’t acknowledge each other’s needs and try to accommodate, the marriage is vulnerable!
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Inability to resolve conflict: Often couples have very serious trust issues with each other and cannot get past the needs of one vs the needs of the family. Smart couples will seek out a 3rd party “referee” to help resolve these differences before the marriage is irretrievable.
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Children: Enough said! The married couple must decide on a united front in child rearing and discipline. The child cannot be in charge or subject to multiple contradictory directives!
Deciding to divorce is a very sad and financially devastating family decision. If you and your spouse are still at the point to possibly change things for the better, explore all other opportunities! There was a reason for the initial attraction and your family will love you for it. Otherwise, consult a qualified legal professional who can help guide you through this trying period.
The Special Needs Child and Parents Going Through a Texas Divorce
Parents of a special needs child face many challenges while raising and nurturing their child. Many marriages falter and end in divorce due to the stressful demands required of parents with a special needs child. The stressors and emotional pressure that exists prior to the initiation of a divorce frequently accelerates during the divorce process. A special needs child is seriously affected by their parental decisions made during a divorce.
A divorce does not bring out the best in any couple. In the case of a special needs child, thoughtful and prudent care of the child should always be the main objective of both parents so the child knows that he/she is loved by both parents and is not at risk. A special needs child will experience serious emotional and behavioral problems during this time becoming more vulnerable and not knowing what is happening in life. The child is often afraid that he/she is losing Mom and Dad due to false and misplaced self-imposed guilt.
Many parents have already struggled with questions surrounding their child’s special needs such as correct diagnoses or the validly of treatments for their child’s conditions. During serious custody battles, such concerns become the focus of intense parental conflicts.
Some of the more serious concerns are:
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A child’s reactions to overly permissive or excessively rigid parenting
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Use and dosage of prescribed medicines for a diagnosed problem
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Proper diagnosis being made by a competent professional
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Whether a professional label and diagnosis will be noted in school records
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Whether a child be placed in special education classes for leaning or emotional disabilities. Whether one parent is so occupied with the special need child that the parent has lost perspective on how to best manage the child
Often one parent accepts a child’s diagnosis given by the specialist and actively advocates for the child, while the other parent may remain in denial of the child’s obvious needs. Which parent is actually and consistently working in the child’s best interests?
Special efforts are needed when setting up possession schedules for your special needs child. Both parents must understand the nature of the child’s physical/emotional problems and the level that the child can function. When the child spends time in each parent’s home, both parents must reasonably work together and agree on a parenting approach that addresses the child’s needs.
When parents cannot agree upon the child’s actual needs and course of care, the court may appoint a specialist to conduct a complete evaluation of the child. From this evaluation the specialist will offer specific opinions to the parents and court regarding the nature of the child’s special needs and specifically address these needs.
In a divorce involving a special needs child many joint decisions are critical to and impact a child’s self-esteem. Other family issues and problems may need to temporally be put aside between the parents to assure a special needs child will fully receive the attention needed. We suggest that in the divorce decree a parenting plan be included setting out specific provisions for the care of the child.
Some suggested items to include in this Plan would be:
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Can the child be cared for in the home or an outside facility and how would these costs be covered?
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Medical, educational, and therapeutic interventions and decision making authority
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Treatments not covered by insurance. Who is responsible as to the authority and cost?
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Working with the child’s school to implement plans for the educational needs of the child.
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Care decisions on parents’ ability to work outside the home with a special needs child
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Handling of Lifetime care and support and the cost necessary for the special needs child
Domestic Violence and Intimate Partner Violence : Identify the Problem and Make it Stop!
Every day in the news on the internet, TV, and newspapers, we read how Domestic / Intimate Partner Violence affects women, men and children lives in very tragic ways. Many professional athletes have been exposed and many celebrities have professed their life changing experiences.
What is Domestic/Intimate Partner Violence? It is the willful intimidation, physical and sexual assault & battery or serious mental and verbal abuse perpetrated by one intimate partner against another.
The frequency and severity of domestic violence varies dramatically and may include physical or sexual violence, threats, and emotional abuse. The violence is often accompanied by irrational and controlling behavior and is intended to result in total dominance and control over the other intimate partner or the other family members.
Current Domestic / Intimate Partner Violence Statistics:
- Every 9 seconds in the US a woman is assaulted or beaten. Everyday more than 3 women are murdered by their intimate partners.
- 1 in 4 women will experience domestic/intimate partner violence in her lifetime. Women ages 18 to 24 are the greatest risk of being victims of domestic/intimate partner violence.
- Every year, over 3 million children witness domestic violence in the home.
- Children who live in domestic violence homes suffer high rates of abuse and neglect (30-60%)
- Intimate partner violence accounts for 15% of all violent crime.
The Worse Fact: Most of all Domestic /Intimate Partner Violence Incidents Are Never Reported! These Abusers are getting away with this abuse and can murder their loved ones at any time!
Legally, the abuser may be deterred from continuing this degrading, hurting behavior against his intimate partner and other family members. But these victims need help. Many times, the victims are so weak and beaten down mentally and physically that they cannot help themselves.
Look for warning signs of abuse in relatives, friends and neighbors. Remember: if you are a friend, be their friend. Do something to disclose the abuse and danger in their lives! You may save a life!
NACOL LAW FIRM P.C.
8144 Walnut Hill Lane
Suite 1190
Dallas, Texas 75231
972-690-3333
Office Hours
Monday – Thursday, 8am – 5pm
Friday, 8:30am – 5pm
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization
