08 July

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Who gets the kids if both parents die?

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It’s the first date night a couple has had in several months. They have one toddler and a newborn at home. During the period of awkward silence that inevitably arises at the thankfully loud Chili’s showing SportsCenter with closed captioning, the wife asks, “What would happen to the kids if we died on the way home?” It is obviously an important question. No one likes to talk about it because the discussion alone could cause it to happen. Also, though, it brings up a whole mess of issues that are not always pleasant. In short, it could very well lead to...

07 July

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What happens to my business after I die?

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in Business Law, Wills & Trusts

What happens to a business after the owner dies is obviously an important question. The answer will depend on the business’ organizational documents and the business owner’s estate plan. First, it is important to remember that contracts usually trump a person’s last will and testament. Therefore, it a deceased business owner had a partner with whom he maintained a buy/sell agreement, then the buy/sell agreement would most likely control. It is highly recommended for active businesses with multiple owners to either maintain a buy/sell agreement or have a succession plan in regards to management. Next, one must look to see whether...

19 June

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Do I Need a New Will if I Move to a New State?

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in Probate, Wills & Trusts

Opportunity increasingly carries Americans to new destinations. Recently, a lot of folks from California and Ohio seem to be making their way to Frisco, Texas. Although many of these new and welcomed Texans make the move for employment related purposes, many are also retirees settling closer to their grandchildren. Whatever the purpose, estate planning attorneys are often asked, “Is my will and trust good in Texas?” Assuming that the will and trust were executed properly, a will and trust from another state will be valid in the new state. However, it’s not always the best route in a new state. For...

21 April

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What Happens to the House and Mortgage When Someone Dies?

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in Probate, Real Estate Law, Wills & Trusts

Attorneys handling estate planning and probate matters are often asked, “What happens to the house and mortgage when someone dies?” To answer that question, one must understand that almost all mortgages and deeds of trust contain a due on sale clause. A due on sale clause is a provision that bans the homeowner(s) from transferring any interest in a property. If a homeowner transfers an interest in the home, then the bank may cause the entire balance of the note to be due at once. If the note remains unpaid, then the lender may foreclose on the property. Obviously, that seems...

10 April

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Who Should be Included in Your HIPAA Release?

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in Wills & Trusts

The Health Insurance Portability and Accountability Act (HIPAA) is the law that disallows a doctor or hospital from providing a patient’s medical information to a third party without a release. Many people obtain releases during the ordinary course of business, like insurance companies. In addition, HIPAA Releases are usually included in Medical Powers of Attorney. However, should people other than agents under a Medical Power of Attorney be included in a HIPAA Release? A Medical Power of Attorney is usually only executed along with a person’s last will and testament, which is not typically updated very regularly. And, families often move...

05 March

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Optional Provisions of Wills and Trusts

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in Probate, Wills & Trusts

Last Wills and Testaments and trusts are obviously separate instruments. However, they are often complementary to one another. One may choose a variety of different options regarding a will and trust. This post will focus on a few of the options that are more popular. 1. Contingent Trust – Wills distribute property upon the death of the testator. Trusts distribute property under the terms of the trust agreement. Oftentimes, though, a beneficiary of a distribution may be a minor. Alternatively, the beneficiary may be mentally incapable of minding the distribution. In these cases, clients may include a contingent trust. The contingent...

06 February

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Wills Are Public Information / Trusts are Not

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in Probate, Wills & Trusts

Following the tragic death of Paul Walker, it was reported that he bequeathed approximately $25 million in assets to his daughter. How did they get that information? It was in the probate filings of his executor, which also (presumably) contained a copy of his last will and testament. One can make a very strong argument that one’s financial situation, especially upon death, should be a private matter. Why should it be public information? However, consider the other side. Wills provide information to the families. If the wills were not public information, then estranged family members, or at least quarreling family members,...

20 August

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Why an Attorney Should Draft Your Will

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in Wills & Trusts

Considering one can find almost any legal document online, people often wonder if it is worth hiring an attorney to draft the last will and testament, living trust, and other estate planning documents. The answer is unequivocally, “Yes.” Although one may derive some bias in this author’s response, the response originates from experience. Many of the problems discovered during probate arise due to online documents. Quite simply, one can hardly replace the independence and the process an attorney offers. For instance, if the will is contested in court, then the attorney may be able to testify about the specific item being...

14 August

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The Process of Creating a Last Will & Testament

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in Wills & Trusts

Clients often inquire about the process associated with creating a last will and testament. For most individuals and families, the process is rather simple and starts with a call to a local attorney. Between the phone call and the initial consultation, the attorney will likely provide a questionnaire to complete and bring to the initial consultation. At the initial consultation, the estate planning lawyer will review the answers to the questionnaire and start delving deeper. Perhaps the biggest issue discussed at the initial consultation is alternative distribution scenarios. Most people plan on distributing their assets to his/her spouse and then children....

08 May

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Making Family Aware of Your Estate

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in Probate, Wills & Trusts

All attorneys have their pet peeves. One of my growing pet peeves concerns people failing to notify their family about estate planning. It is very common for people to keep their estate and the distribution thereof private, especially if one or more of the descendants may be disturbed by the decisions. However, privacy and awareness are not exclusive terms. A few tips on maintaining privacy and awareness are listed below: 1. Write a Letter / Tell Someone. Write a letter to multiple family members stating the existence of a will and/or trust. Additionally, tell them where the will and/or trust...

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