Despite the recent drama over Michael Jackson’s death, he did many things right when it comes to end-of-life estate planning. The most critical thing Jackson did was to name a business associate as executor to carry out his wishes and designate a guardian for his minor children. He also set up a family trust that should keep the division of his estate out of the public eye.
As opposed to Jackson, Steve McNair, former NFL quarterback, died intestate (without a will). According to reports not personally verified by the writer, McNair had a wife, two children from a former marriage, and two children from a previous relationship. Now, instead of being able to decide for himself how his property should be distributed, the distribution of his assets will be determined by a formula set forth under state law.
Too often people do not get around to making a will. The problem is there is no deadline to make sure it is done before your death, and people do not like to think about dying. It is important to remember that if you die without a will state law dictates what happens to your property and assets and a court of law may determine who has custody of your children.
While mortality is a difficult topic to discuss or think about, leaving your family with large financial decisions isn’t pleasant either. Start by assessing your overall financial picture – your net worth. You need to identify not only your financial investment assets but also the value of your real and personal property.
Craft a will. With the assistance of an attorney, you can outline how you wish your estate – your assets and liabilities – to pass through after your death. Your assets along with your debt will need to be handled by your family. Identify anything that may need to be taken care of in case you are incapacitated. Check on taxes that may need to be paid by your estate. Remember to keep your will updated if you move, remarry, divorce, or experience any significant change in your life.
In some cases you may wish to discuss your desires with trusted family members. By letting others know what your plans are, you can prevent misunderstandings after your death. In some cases complete privacy is indicated. Choose an executor. Whether it is a family member or friend, the executor needs to be someone that can be trusted to handle the decisions and paperwork surrounding your death and the probate of your estate. Choose a successor. Be careful when choosing a spouse whose health may be failing along with your own.
Protect your assets with a trust. Setting up trusts can allow you to provide for your family and beneficiaries after you are gone and in some cases bypass probate and the associated expenses altogether. Plus, in the appropriate case and jurisdiction a trust may aid in lessening the potential taxes on your estate. Talk over your planning and estate needs with a financial advisor. You can provide an income to a surviving spouse and children, safeguard your assets until your children reach a set age or establish a trust for a charitable organization. The benefits of a trust are: federal unified tax credit to leave assets tax-free; providing income to one beneficiary for his or her lifetime, and the balance to others; professional investment assistance and management; and postponing estate taxes with property transfers. The various types of trusts you may want to consider and/or discuss with your attorney are: revocable living trust; testamentary trust; living trust; and irrevocable and charitable trusts.
Keep your children in mind. Make sure that you name a guardian who will care for them into adulthood. Establish how you want your children to inherit your estate, whether it is through investments or trusts. Choosing the guardian of your children is very important. Be sure that whomever you name is aware of and willing to take on the responsibility. You may want to also take into consideration their age and health.
Periodically review your plan (especially in the case of divorce or death of a spouse or beneficiary). Your estate will change over time. Do not assume that what you set up five years ago will be what is best for your present estate. Money grows, investments change, you may downsize your housing needs – reassess your plan and make the changes in writing.
Wednesday, August 12, 2009
Tuesday, June 2, 2009
What Will Happen to My Pet When I Die?: Providing a Future for your Pet
As a responsible pet owner, it is important to ensure their quality of care continues should something unexpected happen to you.
Is a will the best option?
A will takes effect only upon your death. It may not be probated and formally recognized until weeks or possibly months later. If legal disputes arise, the final settlement of property may be prolonged. Even the determination the rightful new owner of a pet may be delayed. This does not mean that you should not include a provision in your will to provide for your pet, it simply means that you should explore additional documents that compensate for a will’s limitations.
Setting up a Trust
A trust can provide for pets immediately because you determine when your trust becomes effective. When you create a trust for your pet, money is set side to be used for the pet’s care and trustees are specified to control the funds.
A trust can be written to exclude certain assets from the probate process so that funds are more readily available to care for your pet and can be structured to provide for a pet during a lengthy disability. Furthermore, trusts are legal entities that are relatively expensive to administer and maintain
An attorney can make sure that the trust is specific as to the animal, valid and enforceable. However, tying up a substantial amount of money or property in trust for an animal’s benefit may prove to be controversial.
Power of Attorney
A power of attorney, which authorized someone else to conduct your affairs for you while you are incapacitated have become a standard practice. The power of attorney can be written to become effective upon your physical or mental incapacitation and continue in effect upon your death. They are much simpler than trusts and do not create a legal entity that needs to be maintained by formal means. Provisions can be inserted authorizing your attorney-in-fact to take care of your pets, expend money to do so, and even place why our pets with permanent caregivers if appropriate.
Like other legal devices, the power of attorney is a document that by itself cannot ensure your pet is fed, walked, medicated, or otherwise cared for. It is simply a tool to assist your efforts in thinking ahead and finding temporary or permanent caregivers who can take over the care of your pet should the immediate need arise.
What is a reasonable sum to leave?
Documents should stipulate the amount and frequency of payments and whether they should be adjusted for inflation.
To answer this question you must take into account the age, health, estimated lifespan and number of pets involved. It also depends on how much care you wish the animal to receive. If the animal gets cancer or some other ailment, what kind of treatment do you want to provide? You may also want to consider burial or cremation and ceremonial expenses.
Leaving too little money may compromise the future care of your pet. Leaving too much money may cause problems with potential heirs.
Finally, you will want to make sure you include the cost involved in paying the caretaker and/or trustees for their time and effort.
The Nacol Law Firm P.C.
Law office of attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
Is a will the best option?
A will takes effect only upon your death. It may not be probated and formally recognized until weeks or possibly months later. If legal disputes arise, the final settlement of property may be prolonged. Even the determination the rightful new owner of a pet may be delayed. This does not mean that you should not include a provision in your will to provide for your pet, it simply means that you should explore additional documents that compensate for a will’s limitations.
Setting up a Trust
A trust can provide for pets immediately because you determine when your trust becomes effective. When you create a trust for your pet, money is set side to be used for the pet’s care and trustees are specified to control the funds.
A trust can be written to exclude certain assets from the probate process so that funds are more readily available to care for your pet and can be structured to provide for a pet during a lengthy disability. Furthermore, trusts are legal entities that are relatively expensive to administer and maintain
An attorney can make sure that the trust is specific as to the animal, valid and enforceable. However, tying up a substantial amount of money or property in trust for an animal’s benefit may prove to be controversial.
Power of Attorney
A power of attorney, which authorized someone else to conduct your affairs for you while you are incapacitated have become a standard practice. The power of attorney can be written to become effective upon your physical or mental incapacitation and continue in effect upon your death. They are much simpler than trusts and do not create a legal entity that needs to be maintained by formal means. Provisions can be inserted authorizing your attorney-in-fact to take care of your pets, expend money to do so, and even place why our pets with permanent caregivers if appropriate.
Like other legal devices, the power of attorney is a document that by itself cannot ensure your pet is fed, walked, medicated, or otherwise cared for. It is simply a tool to assist your efforts in thinking ahead and finding temporary or permanent caregivers who can take over the care of your pet should the immediate need arise.
What is a reasonable sum to leave?
Documents should stipulate the amount and frequency of payments and whether they should be adjusted for inflation.
To answer this question you must take into account the age, health, estimated lifespan and number of pets involved. It also depends on how much care you wish the animal to receive. If the animal gets cancer or some other ailment, what kind of treatment do you want to provide? You may also want to consider burial or cremation and ceremonial expenses.
Leaving too little money may compromise the future care of your pet. Leaving too much money may cause problems with potential heirs.
Finally, you will want to make sure you include the cost involved in paying the caretaker and/or trustees for their time and effort.
The Nacol Law Firm P.C.
Law office of attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
Monday, May 4, 2009
What Happens if you die without a will in Texas?
When a person dies without having made a will, property passes according to the criteria described in the Probate Code. Many people falsely believe that a surviving spouse or parent would take all the deceased’s property, especially if the children are young. That is not necessarily the case. The Texas Probate Code provides as follows:
On the intestate (without a will) death of one of the spouses to a marriage, the community property estate of the deceased spouse passes to the surviving spouse if:
1) no child or other descendant of the deceased spouse survives the deceased spouse; or
2) all surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse.
On the intestate death of one of the spouses to a marriage, if a child or other descendant of the deceased spouse survives the deceased spouse and the child or descendant is not a child or descendant of the surviving spouse, one-half of the community estate is retained by the surviving spouse and the other one-half passes to the children or descendants of the deceased spouse. The descendants shall inherit only such portion of said property to which they would be entitled under Section 43 of the Texas Property Code. In every case, the community estate passes charged with the debts against it.
If a person dies intestate leaving no husband or wife, it shall descend and pass in parcenary to his children in the following course:
1) To his children and their descendants.
2) If there be no children nor their descendants, then to his father and mother, in equal portions. But if only the father or mother survive the intestate, then his estate shall be divided into two equal portions, one of which shall pass to such survivor, and the other half shall pass to the brothers and sisters of the deceased, and to their descendants; but if there be none such, then the whole estate shall be inherited by the surviving father or mother.
3) If there be neither father nor mother, then the whole of such estate shall pass to the brothers and sisters of the intestate, and to their descendants.
4) If there be none of the kindred aforesaid, then the inheritance shall be divided into two moieties, one of which shall go to the paternal and the other to the maternal kindred, in the following course:
To the grandfather and grandmother in equal portions, but if only one of these be living, then the estate shall be divided into two equal parts, one of which shall go to such survivor, and the other shall go to the descendant or descendants of such deceased grandfather or grandmother. If there be no such descendants, then the whole estate shall be inherited by the surviving grandfather or grandmother. If there be no surviving grandfather or grandmother, then the whole of such estate shall go to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants.
Where any person having title to any estate, real, personal or mixed, other than a community estate, shall die intestate as to such estate, and shall leave a surviving husband or wife, such estate of such intestate
shall descend and pass as follows:
1) If the deceased have a child or children, or their descendants, the surviving husband or wife shall take one-third of the personal estate, and the balance of such personal estate shall go to the child or children of the deceased and their descendants. The surviving husband or wife shall also be entitled to an estate for life, in one-third of the land of the intestate, with remainder to the child or children of the intestate and their descendants.
2) If the deceased have no child or children, or their descendants, then the surviving husband or wife shall be entitled to all the personal estate, and to one-half of the lands of the intestate, without remainder to any person, and the other half shall pass and be inherited according to the rules of descent and distribution; provided, however, that if the deceased has neither surviving father nor mother nor surviving brothers or sisters, or their descendants, then the surviving husband or wife shall be entitled to the whole of the estate of such intestate.
There shall be no distinction in regulating the descent and distribution of the estate of a person dying intestate between property which may have been derived by gift, devise or descent from the father, and
that which may have been derived by gift, devise or descent from the mother; and all the estate to which such intestate may have had title at the time of death shall descend and vest in the heirs of such person in the same manner as if he had been the original purchaser thereof.
No right of inheritance shall accrue to any persons other than to children or lineal descendants of the intestate, unless they are in being and capable in law to take as heirs at the time of the death of the intestate.
In situations where the inheritance passes to the collateral kindred of the intestate, if part of such collateral be of the whole blood, and the other part be of the half blood only, of the intestate, each of those of half blood shall inherit only half so much as each of those of the whole blood; but if all be of the half blood, they shall have whole portions.
No person is disqualified to take as an heir because he or a person through whom he claims is or has been an alien.
No conviction shall work corruption of blood or forfeiture of estate, except in the case of a beneficiary in a life insurance policy or contract who is convicted and sentenced as a principal or accomplice in willfully bringing about the death of the insured, in which case the proceeds of such insurance policy or contract shall be paid as provided in the Insurance Code of this State, as same now exists or is hereafter amended; nor shall there be any forfeiture by reason of death by casualty; and the estates of those who destroy their own lives shall descend or vest as in the case of natural death.
The Nacol Law Firm PC
Law office of Attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
On the intestate (without a will) death of one of the spouses to a marriage, the community property estate of the deceased spouse passes to the surviving spouse if:
1) no child or other descendant of the deceased spouse survives the deceased spouse; or
2) all surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse.
On the intestate death of one of the spouses to a marriage, if a child or other descendant of the deceased spouse survives the deceased spouse and the child or descendant is not a child or descendant of the surviving spouse, one-half of the community estate is retained by the surviving spouse and the other one-half passes to the children or descendants of the deceased spouse. The descendants shall inherit only such portion of said property to which they would be entitled under Section 43 of the Texas Property Code. In every case, the community estate passes charged with the debts against it.
If a person dies intestate leaving no husband or wife, it shall descend and pass in parcenary to his children in the following course:
1) To his children and their descendants.
2) If there be no children nor their descendants, then to his father and mother, in equal portions. But if only the father or mother survive the intestate, then his estate shall be divided into two equal portions, one of which shall pass to such survivor, and the other half shall pass to the brothers and sisters of the deceased, and to their descendants; but if there be none such, then the whole estate shall be inherited by the surviving father or mother.
3) If there be neither father nor mother, then the whole of such estate shall pass to the brothers and sisters of the intestate, and to their descendants.
4) If there be none of the kindred aforesaid, then the inheritance shall be divided into two moieties, one of which shall go to the paternal and the other to the maternal kindred, in the following course:
To the grandfather and grandmother in equal portions, but if only one of these be living, then the estate shall be divided into two equal parts, one of which shall go to such survivor, and the other shall go to the descendant or descendants of such deceased grandfather or grandmother. If there be no such descendants, then the whole estate shall be inherited by the surviving grandfather or grandmother. If there be no surviving grandfather or grandmother, then the whole of such estate shall go to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants.
Where any person having title to any estate, real, personal or mixed, other than a community estate, shall die intestate as to such estate, and shall leave a surviving husband or wife, such estate of such intestate
shall descend and pass as follows:
1) If the deceased have a child or children, or their descendants, the surviving husband or wife shall take one-third of the personal estate, and the balance of such personal estate shall go to the child or children of the deceased and their descendants. The surviving husband or wife shall also be entitled to an estate for life, in one-third of the land of the intestate, with remainder to the child or children of the intestate and their descendants.
2) If the deceased have no child or children, or their descendants, then the surviving husband or wife shall be entitled to all the personal estate, and to one-half of the lands of the intestate, without remainder to any person, and the other half shall pass and be inherited according to the rules of descent and distribution; provided, however, that if the deceased has neither surviving father nor mother nor surviving brothers or sisters, or their descendants, then the surviving husband or wife shall be entitled to the whole of the estate of such intestate.
There shall be no distinction in regulating the descent and distribution of the estate of a person dying intestate between property which may have been derived by gift, devise or descent from the father, and
that which may have been derived by gift, devise or descent from the mother; and all the estate to which such intestate may have had title at the time of death shall descend and vest in the heirs of such person in the same manner as if he had been the original purchaser thereof.
No right of inheritance shall accrue to any persons other than to children or lineal descendants of the intestate, unless they are in being and capable in law to take as heirs at the time of the death of the intestate.
In situations where the inheritance passes to the collateral kindred of the intestate, if part of such collateral be of the whole blood, and the other part be of the half blood only, of the intestate, each of those of half blood shall inherit only half so much as each of those of the whole blood; but if all be of the half blood, they shall have whole portions.
No person is disqualified to take as an heir because he or a person through whom he claims is or has been an alien.
No conviction shall work corruption of blood or forfeiture of estate, except in the case of a beneficiary in a life insurance policy or contract who is convicted and sentenced as a principal or accomplice in willfully bringing about the death of the insured, in which case the proceeds of such insurance policy or contract shall be paid as provided in the Insurance Code of this State, as same now exists or is hereafter amended; nor shall there be any forfeiture by reason of death by casualty; and the estates of those who destroy their own lives shall descend or vest as in the case of natural death.
The Nacol Law Firm PC
Law office of Attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
Monday, April 13, 2009
Will Contest
The requirements for testamentary capacity are minimal. Some courts have held that a person who lacks the capacity to make a contract can still make a valid will. While the wording of statutes or judicial rulings will vary from one jurisdiction to another, the test generally requires that the testator was aware of:
1. The extent and value of their property
2. The persons who are the natural beneficiaries
3. The disposition he is making
4. How these elements relate to form an orderly plan of distribution of property.
The legal test implies that a typical claimant in a will contest is a disgruntled heir who believe he should have received a larger share than what he received under the will. Once the challenging party meets the burden of proof that the testator did not possess the capacity, the burden subsequently shifts to the party propounding the will to show by clear and convincing evidence that the testator did have the requisite capacity.
Duress or coercion (as a term of jurisprudence) is a possible legal defense, one of four of the most important justification defenses by which defendants argue that they should not be held liable because the actions that broke the law were only performed out of an immediate fear of injury. Black's Law Dictionary (6th ed.) defines duress as "any unlawful threat or coercion used... to induce another to act [or not act] in a manner [they] otherwise would not [or would]."
In order for duress to qualify as a defense, four requirements must be met:
1. Threat must be of serious bodily harm or death
2. Harm threatened must be greater than the harm caused by the crime
3. Threat must be immediate and inescapable
4. The defendant must have become involved in the situation through no fault of his or her own
A person may also raise a duress defense when force or violence is used to compel him to enter into a contract, or to discharge one.
Depending on the grounds, the result may be
-Invalidity of the entire Last Will and Testament, resulting in an intestacy.
-Invalidity of a clause or gift, requiring the court to decide which charity receives the charitable bequest, using the equitable doctrine of cy pres
-Dimunition of certain gifts, and increase of other gifts to the widowed spouse or orphaned children, who would now get their elective share.
Nacol Law Firm PC
Law office of attorney Mark Nacol
Seriving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
1. The extent and value of their property
2. The persons who are the natural beneficiaries
3. The disposition he is making
4. How these elements relate to form an orderly plan of distribution of property.
The legal test implies that a typical claimant in a will contest is a disgruntled heir who believe he should have received a larger share than what he received under the will. Once the challenging party meets the burden of proof that the testator did not possess the capacity, the burden subsequently shifts to the party propounding the will to show by clear and convincing evidence that the testator did have the requisite capacity.
Duress or coercion (as a term of jurisprudence) is a possible legal defense, one of four of the most important justification defenses by which defendants argue that they should not be held liable because the actions that broke the law were only performed out of an immediate fear of injury. Black's Law Dictionary (6th ed.) defines duress as "any unlawful threat or coercion used... to induce another to act [or not act] in a manner [they] otherwise would not [or would]."
In order for duress to qualify as a defense, four requirements must be met:
1. Threat must be of serious bodily harm or death
2. Harm threatened must be greater than the harm caused by the crime
3. Threat must be immediate and inescapable
4. The defendant must have become involved in the situation through no fault of his or her own
A person may also raise a duress defense when force or violence is used to compel him to enter into a contract, or to discharge one.
Depending on the grounds, the result may be
-Invalidity of the entire Last Will and Testament, resulting in an intestacy.
-Invalidity of a clause or gift, requiring the court to decide which charity receives the charitable bequest, using the equitable doctrine of cy pres
-Dimunition of certain gifts, and increase of other gifts to the widowed spouse or orphaned children, who would now get their elective share.
Nacol Law Firm PC
Law office of attorney Mark Nacol
Seriving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
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