No Will: Now What?
When your loved one dies without a will, the Texas probate process can be expensive and frustrating. Absent a will, an individual must have his or her estate distributed per the laws of Intestate Succession. Intestacy is the process by which the Texas probate code will determine which assets go to whom.
If your mother or father dies without a will, here is the normal estate disbursement under the following conditions:
- Mother and father are still married;
- All siblings are born from mother and father, no out of wedlock or children of another marriage.
This is a common fact pattern for intestacy probate. If an individual die but their spouse is still alive then the assets will be distributed in the following manner:
- Community Property: The spouse will receive 100% of the community property.
- Separate Personal Property: The spouse is entitled to 1/3rd of descendants separate personal property. The descendants are entitled to the other 2/3rds of separate personal property.
- Separate Real Property/Land: The spouse is entitled to a life estate in 1/3rd of the separate real property. The descendants are entitled to the remainder interest in that 1/3rd, plus a present possessory interest in the remaining 2/3rd of the separate real property.
If your wife or husband dies with no children, then the estate will be distributed in the following manner:
- Community Property: The spouse will receive 100% of the community property.
- Separate Personal Property: The spouse will receive 100% of the Separate Personal Property
- Separate Real Property: The spouse will receive ½ of the separate real property if the intestate is survived by a parent, sibling, or sibling’s descendant. The remaining ½ of the separate real property passes to the parent, sibling, or sibling’s descendant as if the intestate had no surviving spouse. If the intestate is not survived by a parent, sibling, or sibling’s descendant, the surviving spouse is entitled to all the .
This is a quick overview of the most common forms of statutory asset distribution when a loved one dies intestate. Though the above scenarios look simplistic, if your love one died without a will, it is imperative that you find a qualified Texas probate attorney that can guide you through the specific provisions within the Probate Court. The Dallas Texas probate attorneys at the Nacol Law Firm can help you navigate this unfamiliar terrain.
Texas Deceptive Trade Practices Act : Pre-Purchase Protection When Buying a Home in Texas
Purchasing a home can be a daunting yet exhilarating experience depending on the circumstances. Sometimes after a couple has purchased a home they regretfully discover many construction defects that were not disclosed to them by the Seller. Many undisclosed material defects within a home not detected by the buyer’s independent inspector that were misrepresented by the Seller may cause severe hardships in the future.
Legal relief requires an experienced real estate lawyer. A fraudulent misrepresentation made by a Seller when selling a home may give rise to a claim under the Deceptive Trade Practices Act of Texas. Multiple provisions relating to the misrepresentation of property per Tex. Bus. & Comm. Code §§ 17.46(b) are designed to protect a buyer. These misrepresentations if properly proven by the evidence will give rise to certain damages available to Buyers under the Texas DTPA Statute.
If you are the victim of fraudulent misrepresentations your independent inspector did not discover during the house inspection, you may still have relief. If circumstances prove that a misrepresentation was intently made or defect was concealed by the Seller, then under the DTPA you may be eligible to receive Economic Damages. Economic Damages include compensation for any pecuniary loss, including repair or replacement of defect. If the buyer of the home is victorious at trial, attorney’s fees and additional damages may be awarded as well.
If it can be proven that a Seller “knowingly” misrepresented a portion of the home to a buyer such as hiding evidence of termites, hiding foundation defect or old repairs, or electrical problems, then the buyer may be entitled to 3 times the amount of actual economic damages of the suit including attorney’s fees. The DTPA is a consumer based protection statute that ensures normal people are not taken advantage of due to their lack of knowledge.
If you are a buyer that has intentionally been taken advantage of by a Seller through fraud or deceit you should find an experienced attorney. DTPA actions are complex and time sensitive. An experienced attorney will give you the highest probability of success.
The Texas housing market is exploding and there are many out of state individuals moving into the Dallas / Fort Worth area. If you are a native Texan or a family transferring into the Dallas / Fort Worth area and feel you have been fraudulently deceived by a Seller, please call an experienced attorney with a firm hand to obtain the justice you deserve under the DTPA and other Consumer Protection Laws.
Julian Nacol, Attorney
Nacol Law Firm P.C.
Social Networking: Did you Say it or Show It? Then You Have to Defend It!
Social media provides everyone with a digital treasure trove of information. Always remember what you post online can and often will be used against you.
Approximately 302.35 million or 90% of all adult internet users in the United States actively use Social Networking sites daily. A new 2023 Hootsuite survey shows an average American user spends 2 hrs. and 31minutes daily on social networking. This usage amount is the Highest Record ever recorded! Social networking is considered the most popular online activity. When posting on Facebook, TikTok, or other social networking sites, just remember the updates you post can cause serious problems when searching for a job, starting a new relationship, or during involvement in a legal issue or lawsuit!
People are now sharing everything online. Can this get you in trouble? YOU BET!! Social networking technologies have forced people to learn how to navigate the murky waters between business and pleasure. Such a mixture creates a “Permanent Record” on social /90% private issues and sharing it with their “multi” friends online and “Advertising their Product” for all to see. Social networking sites can provide anyone who is confused, angry or distraught with a perfect venue for airing their gripes and disclosing their feelings in public!
Evidence from all social media sites is now used by prosecutors, defense attorneys, personal injury attorneys, employment attorneys, securities litigators, and particularly family law attorneys. An American Academy of Matrimonial Lawyers survey found that 81% of divorce attorneys have increased their use of social media to find evidence against the opposing side. The main source of information is Facebook, with attorneys citing it as the source for incrimination information.
A Wide Variety of Evidence?
1. Incriminating photos
2. Incriminating statements and wall posts
3. Status Updates
4. Mood Indicators
5. List of Friends
6. Login/Log off records for example: not able to work, alcohol/drug use, intimate issues).
How to Preserve Evidence from Social Media Sites?
1. Capture a full content screen shot with full key metadata information of web site to prove authenticity!
2. Print any pertinent information ASAP since it may be deleted by user
3. Well-tailored discovery requests to the person.
4. Motion compelling the user to execute a consent form permitting the discovery
seeking party to obtain the profile contents.
5. Check all Social Media platforms for pertinent information. Be sure not to miss some nugget of information that could help win your case!
How to Authenticate Evidence from social media?
1. Stipulation
2. Admission from author/poster.
3. Testimony from person who copied information.
4. Capture a full content screen shot with full key metadata information of web site to prove authenticity
Think about these Situations before using social media to sound off:
1. If you share a computer with a spouse or business partner and there is a potential break up; create a new web-based email address with a new password to ensure no other unauthorized access.
2. Don’t forget the children! Always more tech-savvy than mom and dad, monitor children to ensure information related to divorce proceedings or family problems do not become part of the internet!
3. Never make online references to finances. No big trips, bonuses or raises at work. This could affect your case adversely.
4. Always be careful with third- party conversations. The internet has many eyes and not just your friends.
The advance and reach of social media force our legal system to adapt quickly. Legal professionals now have very good new sources for evidence and discovery.
Just consider the implications of this technology before you vent out online. It could and will be used against you in a Court of Law!
Nacol Law Firm P.C.
Dallas Texas Civil Litigation Attorneys
Call (972) 690-3333
The Duties of an Executor of a Texas Will
The executor of a will is the person chosen by the deceased to administrate the provisions of the will of his/her estate. The executor must be eighteen years older and have no prior felony convictions. Executors are usually family members, accountants or lawyers. The duties of the executor start at the time of death and finish when the last state and federal taxes are paid and the estate is closed or otherwise fully disposed. Executor responsibilities include accounting of assets in the estate, payment of estate liens and debts and final distribution of assets to the beneficiaries.
An executor has legal fiduciary responsibilities and must act with utmost honesty, impartiality, and scrupulousness on behalf of the deceased and the estate’s beneficiaries. Rational decisions must be made; and the executor must overcome emotion caused by loss and adhere to the terms of the will.
Some questions the potential executor should ask before accepting the position?
- What type of property and debts does the deceased own or owe? What type of property is it? Real estate, personal, mineral, oil or gas rights or other types of property?
- Where is the property located? Is all the property in Texas or are some estate assets in other states?
- Did the deceased own a business that will have to be assumed by the executor to continue operations until the probate is settled and where is the business located? The executor will need to know about all aspects of the business operations and obligations.
- Do you have an accountant, attorney or other professional advisor who can assist you in handling the probate transition in a timely and expedient fashion?
- What are the deceased debts? Is the estate solvent or insolvent? Are there any outstanding lawsuits or potential problems? Any other property disputes?
- Any potential family disputes?
- Where is the will located? If the maker of the will is living, should any changes be made to the will before the person dies? If the executor decides to accept the position, does the will need to be changed on acceptance to appoint the executor of choice.
- What are the basics of administering the executor’s position and duties while administrating of the estate of the deceased?
- Collection and management of the assets
- Paying all taxes, debts, and expenses of the estate
- Distribution of remaining assets to the beneficiaries of the estate in strict accordance with the will terms.
The executor’s position can be very complicated and time consuming and you should have knowledge of all financial and legal aspects of probating an estate. An experienced employee, accountant or attorney can help you with this important task. If not sure, ask for help! You have a serious and legally accountable responsibility to the estate and its beneficiaries.
Texas Divorce: For Richer or Poorer, Hire Expert Help to Protect Your Interests
For better or worse,
For richer or poorer,
Until . . . a divorce is filed.
When there are several zeros at the end of your bank balance, as in $500,000.00; $5,000,000.00 or more, the financial aspects of divorce can be high risk.
Texas divorce laws are the same regarding the division of property whether the money and assets in a marital estate are a lot or a little; however, the courts will inevitably encounter and address more complex issues regarding the property division in a divorce case with substantial financial and business assets.
Texas is a community property state. What does that mean, as a practical matter, when divorce occurs?
1. The law presumes that all property owned by either spouse is community property, meaning that both spouses own an undivided one-half interest.
2. The court cannot divest a spouse of his or her separate property in divorce.
In a very simple explanation: Texas community property is everything earned or acquired during the marriage other than inheritances or gifts. Your paycheck is community property, your rental income is community property, the cars you purchase are community property, retirement funds accumulated during marriage are community property.
At the time of the divorce, the court will make a just and right division of the community property. “Just and right” does not mean 50/50. Often the courts will split the community property equally, but many factors may affect this division including:
1. The spouses’ earning abilities and education.
2. The spouses’ actual earnings.
3. Who has care and primary custody of the children.
4. The value of separate property owned by the spouses. If the wife inherited $3,000,000.00, should the husband be awarded more of the community property?
5. Fault in the break up of the marriage, especially if a cheating spouse spent substantial assets dating or cavorting with others.
6. The debts of the spouses.
7. Tax consequences.
The bigger the marital pocketbook, the bigger the risk to assets in play.
Texas Child Support and High Asset Divorces:
The court also has discretion in setting child support when the parents are wealthy. The Texas Family Code provides guidelines and the guidelines are presumably in the best interest of the child.
The law caps the Texas child support amount guidelines to a percentage of the first $9,200.00 of the paying parent’s earnings. However, the cap is not made of steel. The law is a guideline.
The court has the discretion to order child support in excess of the guidelines based on the children’s best interest which includes an examination of the proven needs of the children. In the case of children growing up in a high-income household, do not expect the court to necessarily limit its consideration to basic food and shelter. The court may consider many factors in setting child support, including the children’s current living standards, such as private education, nannies, medical issues, emotional issues, sports and other extracurricular activities and, in the rare case, a body guard.
When setting child support within a wealthy family undergoing divorce, the court has discretion, based on the evidence, to set order child support above the presumptive amount in the guidelines. The court’s determination is subjective and is reversed by higher courts only if the trial court “abused its discretion,” a high threshold indeed.
With so much at stake, you should hire an experienced family law attorney who can present your case clearly, and persuasively.
Nacol Law Firm P.C.
Dallas Divorce Attorneys
(972) 690-3333
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
