Disengagement – Part Two

couple going over estate planningAs we discussed in a previous article, several years ago, James Brill authored a piece entitled, “Discouraging Disengagement” for the Texas Bar Journal and shared some important reminders for all of us who plan for the future. Disaffection, disappearance and domestication are all threats to your current estate plan and the fulfillment of your wishes.

Disaffection occurs in most relationships over time. In a long-term relationship, affection can ebb and flow. Ups and downs don’t require any change in the estate plan, but if you no longer want to provide benefits to someone or trust that person to serve as a fiduciary or agent under a power of attorney, you better make a change.

Brill says disappearance is, “Disaffection on steroids.” If you lose touch with someone or they can’t be located, they need to be replaced. The frustration of trying to find people who have gone missing is immense. Even your most trusted fiduciaries may have to abandon the project of administering your estate if key players can’t be located.

We will include divorce in our brief discussion of domestication. Any change in marital status involves more than changing your status on social media. The law attempts to remedy some of the dangers involved in a change in marital status, but, in over thirty years of practice, I have seen the disastrous unintended consequences of an estate plan left in place following the marriage or divorce of the testator.

Contact Mr. Bailey for your initial planning or for a check up on what you have in place, and don’t disengage from this important aspect of planning for the future.

Disengagement – Part One

Senior woman meeting with estate planning agentSeveral years ago, James Brill wrote an excellent article for the Texas Bar Journal entitled, “Discouraging Disengagement.” It was billed as a helpful way to remind clients to maintain their estate plans. While we strive to build estate plans to last, various changes in the circumstances of clients’ lives means that amending the plans over the course of time will be necessary.

The first three reminders, all starting with the letter “D,” are death, disability and decline. You can’t change your plan after you die, but the death of a beneficiary, executor, trustee, guardian or agent under a power of attorney could greatly impact your plan. The longer you wait to address this loss, the more threatening it becomes to your plan.

Disability requires similar considerations to those presented by death. It may be that the disability of a loved one or trusted friend is even more devastating to your plan. If your sole beneficiary dies, your plan should provide for a secondary distribution. If your primary beneficiary becomes disabled, your plan may not work as intended. Often you name the primary beneficiary as your independent executor or as some other position of responsibility that they cannot fulfill because of their disability. You could also unintentionally disqualify them from other sources of assistance by leaving them some or all of your assets.

Decline in ourselves and in those we love and trust is so difficult. Objectivity as to our mental health is tough to come by, and most of us lack the training to measure cognitive decline in those we love. A regular visit to your family doctor and being honest with them about your concerns is important. Every few years you should have a checkup with your estate planning lawyer and try to avoid the dangers of disengagement.

“But No One Told Me…”

Will, Estate PlanningWouldn’t it be nice if there was a guidebook, a pamphlet, or an online video for all of life’s challenges? You can find a YouTube video for almost anything, but, in some situations, there are so many different opinions that it’s hard to know who to trust. Discussions about marriage, parenting, medicine, and the law engender endless commentary that inevitably leads to confusion.

Every day, I speak to someone who expresses surprise that they were not adequately informed about some important aspect of the law. “BUT NO ONE TOLD ME” that deed records don’t change automatically when a person dies, or that a power of attorney dies with the person who gave it, or that there’s a statute of limitations on admitting a will to probate, or that the law can be vastly different in every state, or that a seemingly simple mistake on a document could cost so much time and money. Sometimes, not knowing the law turns a 400 meter sprint into a 400 meter hurdle. At other times, it disqualifies you from running the race at all.

Ask yourself two questions related to planning for your family and your stuff:

  • Are you asking the right questions?
  • Are you asking the right people?

You may not know the right questions to ask. That’s okay—If you seek advice from knowledgeable people who have your best interests in mind, you won’t have to know all the right questions–they’ll help you ask and answer them. We help lots of folks with their legal questions and we’d like to help you with yours.

Memorial Day

Estate PlanningMemorial Day means different things to different people. Some think of it as the beginning of summer, others as just a three day weekend. Some focus on the memory of those who died in military service and others expand it to First Responders and loved ones who have passed away. A day that started out with the decoration of soldiers’ graves after the Civil War has diminished or expanded over the years, depending on your perspective. Remembering is a powerful experience and important to the decisions we make in real time.

Almost every day I speak with someone who is trying to remember. They share what they remember with me or just as often, what they remember being told. Some struggle with their memory or try to cover up their loss of memory because they are embarrassed. Often siblings or cousins remember things differently when a key loved one has died. If the first casualty of war is the truth, the first casualty of death is communication among the survivors. Memorials can communicate powerfully, but just as often produce controversy as those in the future try to interpret their full meaning.

Would you like to be remembered well? Put what you want in writing with the help of a professional experienced in that practice. Prepare for disability and death with documents engineered for that purpose. Don’t leave a legacy of miscommunication and hurt feelings. Make your wishes known. While you’re at it, consider blessing a nonprofit, religious, charitable, or educational effort in your current giving and in your estate plan. Here’s to remembering rightly and being rightly remembered because we walk in gratitude and we prepare for the future.

Fake News

Estate PlanningThe term “Fake News” is thrown around a lot these days. It usually means the person using it is not happy about something that has been reported. It is frightening to those of us who see a free press and an informed citizenry as essential to our form of government. The gossip mongers with internet access appear to have as much influence as legitimate press, but without the training, experience, or code of ethics. In Estate Planning and Probate we deal with our share of bad information and miscommunication. It is true that half truths, like half bricks, can do a lot of damage.

Bad information about Estate Planning and Probate can be motivated by profit. If I want to sell you a product with a high mark up, I may be tempted to up sell you from what you need, to what is most profitable. The most common sales technique is to speak of DANGERS like taxes, lack of privacy, and greatly exaggerated costs of probate. The person promoting these products has a one size fits all approach and the one they sell is the most profitable for them, not necessarily the best plan for you.

Another misleading form of information is the national expert who paints with a broad brush. The law of each of the fifty States is different. The challenge for the big time presenter is that they can’t take the time to listen to you or analyze the factors that will impact your estate plan where you live. They may have valuable insights about your finances, but they almost always overreach.

In addition to the profiteer and the over generic financial guru, your neighbor may be unknowingly publishing fake news. Recently, the forms for Statutory Durable Powers of Attorney have changed. While it would be wise to review your documents at least every five years or anytime you experience a big life event, it is not necessary to redraft all your documents based on these changes. I have received numerous calls based on bad information from a television or radio personality over the years, but friends and neighbors frighten folks with fake news in ways that dwarf the talking heads in the media.

So, what can you do to combat fake news in this area of your life?

Pick up the phone when you have a question and talk to someone who practices in this area of the law. Mr. Bailey answers numerous questions everyday and loves to hear the relief in the voice of the caller when they get to hear accurate answers based on their facts, in their jurisdiction, from a trusted source.

Contact Us

To set up a free initial consultation, contact us online or call us at 844-402-2992. For your convenience, we answer our phones 24 hours a day, 7 days a week. We will meet with you.

Considering Estate Planning or Probate?

Estate Planning

Value

Earlier this year I was on the West Coast and dined at a San Diego restaurant which had come highly recommended. Since you don’t know me, I will tell you that I have been described as “conservative” with money, because it is considered rude to describe me more accurately. Since I don’t eat at fancy restaurants very often I experienced a bit of menu shock. I ordered a middle of the menu meal and harbored doubts that it could live up to the hype and price tag. I was blown away by how good this food was. I ended up convinced that the meal and dining experience were an excellent value, even though I paid more than I usually did.

Quality

When considering estate planning or probate you have a right to receive value. Ask yourself about the quality of their work. Does this attorney have the experience and expertise to give me good advice? Do they provide quality service that will avoid the costly mistakes I might make by trying to do this myself or going with a novice or inexperienced lawyer?

Price

What about price? Does this person have the experience to efficiently provide quality? Am I going to be nickeled and dimed because my lawyer failed to anticipate what it would take to complete the project and does he have the confidence to quote a reasonable fee in at the beginning of the project?

Relationship, Resource, or Drive By?

I have lost count of the number of clients who arrive at my office with a pile of papers and a business card bearing a disconnected telephone number. The hard sell they got to purchase the plan turned into the hard to reach sales person. One of the great things about our practice is that we build relationships with our clients and their families. We serve as a resource for them years after we have completed our initial work. It is an honor to be trusted to walk with a family through planning and then implementation of their estate plan. We take pride in the quality of our work, our reasonable fees, and the fact that we offer real value.

Contact Us

To set up a free initial consultation, contact us online or call us at 844-402-2992. For your convenience, we answer our phones 24 hours a day, 7 days a week. We will meet with you.

Introducing our New Wills & Probate Attorney Judge Lin C. “Lin” Morrisett

Estate PlanningBailey and Galyen is pleased to announce that Lin C. “Lin” Morrisett has joined the firm, and will be working out of our Fort Worth – Summit office. His practice will focus primarily on Probate, Guardianship, and Estate planning. Lin is also a trained mediator who has settled more than 93% of the cases which he has acted as Mediator.

Lin is a former military brat who, though having lived in over 30 cities in 7 different states, has hung his hat in Texas for some 40 years. He graduated from the University of Texas at Austin in 1985, and worked for 8 years as a Systems Engineer, and Systems Analyst, before graduating from Texas Wesleyan School of Law. Lin served as an Associate Judge of Tarrant County Probate Court No. 2 for more than 13 years. In addition to his legal practice, he has served as a briefing attorney for two Justices at the Second Court of Appeals, has spoken extensively on probate issue, and has taught Appellate Brief Writing as an Adjunct Professor at Texas Wesleyan School of Law.

Welcome, Lin!

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Will, Trust, and Powers of Attorney

One of my favorite things on social media is the pictures of the special cake, cupcake or project that shows a perfect example and then the not so perfect attempt to copy it. The children’s animated or puppet character cake looks amazing when the professional has produced it, but the amateur attempt barely resembles it. You may have had that experience with following a recipe. You think you have all the information you need to recreate a dish or bakery item you liked, but “epic fail” best describes the result. What happens is that we may not have had all the ingredients or in the right proportions or in the right order or mixed correctly. There may be timing issues and temperature settings that are difficult to produce. It may be that the person who produces a consistently excellent product knows some things that we don’t know.

I counsel with people who have experienced that same “epic fail” on a daily basis. I can sure relate to what they’re going through. Many times I’ve thought I could produce a product or follow a recipe only to be disappointed. It has very little to do with intelligence or character. The fact is that experienced professionals can do things I am unable to. Going online and botching a recipe costs me a little time and a little money. Going online and attempting to practice law can cost a whole lot more. Here’s to making mistakes in the kitchen we can laugh about and possibly put down the disposal, and seeking wise counsel for professional services.

Every adult needs at least some basic estate planning. Contact us for experienced professional help with your Will, Trust, and Powers of Attorney.

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Why do I need a Will? I’m never going to die.

 

There is a well-known saying we’ve all heard before — that is, the only thing in life that is certain is death and taxes.  For most of us, the inevitability of paying taxes is something we see in the form of deductions in each paycheck.  Yet, despite the other inevitable certainty, death, many people, especially young and middle aged adults, voluntarily choose to deny their own mortality and ignore the financial and legal consequences of their death on the family and loved ones they will leave behind.  We seem to think we’re guaranteed longevity.

But, have you ever noticed the signs along the highways that indicate how many traffic fatalities there are in Texas each year? It’s a sobering number.

In my practice, I see a number of seniors coming in for a Will and other “final day’s” documents, such as a Directive to Physicians (often called a “Living Will”) which are helpful in the event of an irreversible, terminal medical condition.  This is a good thing for seniors.  But these legal instruments, especially a formal Will, would be beneficial for adults of all ages.  Why?  Because dying in Texas without a Will means Texas law will control and determine how your property is to be divided and passed along.   There are several important disadvantages to this reality.

First, the laws of intestacy (dying without a written Will) are strictly followed and play no favorites.  The distribution of the deceased’s property is determined by how closely the bloodline was between the decedent and his/her heirs.  Importantly, the law does not take into account how close the relationship was between the two.  Today, the family unit is quite diverse and not necessarily made up of a Father, Mother and two children like the “traditional” family was a generation or two ago.  Rather, there are many unmarried, but committed couples, and even far more blended families.

Without a Will in place, unmarried couples will not inherit from one another.

Additionally, in a blended family, should you die without a Will, your spouse and biological children will inherit, but your stepchildren won’t.  This can certainly have unexpected results in those families where step kids are raised with genuine love and total parental affection by the deceased step parent.

Moreover, in these same blended families, consider the problems and issues which may arise if you die without a Will setting forth your wishes.  If you wanted your spouse to have all the property in order to care for him/herself and any minor children, dying without a Will may result in the surviving spouse taking only one half of the community property, only one-third of the separate personal property of the deceased, and a life estate (right to live for the remainder of the surviving spouse’s life) in one third of any separate real property.  In other words, the surviving spouse will become co-owner of property with the deceased spouse’s children by a prior marriage.  Maybe this won’t create any disputes or ill will between the parties.  But, one can easily envision the possibility of such conflicts and other problems arising over the distribution of money and other assets.  Surely, a Will that sets out the deceased’s intent would help the entire family overcome the burden of doing it alone.

So, what is the answer?

Clearly, the easiest and only logical course for dealing with the inevitability of dying is to have a written Will in place that will serve as the roadmap for your heirs and loved ones.  Although it is possible to handwrite your own Will in Texas (called a holographic Will) there are potential pitfalls from a lay person doing so.  These include problems from property that isn’t fully indentified or fully disposed of by the terms of the Will, interpretation of the Will’s meaning itself if it contains ambiguity, and of course, issues related to the cost and powers of the desired Executor.  Without the proper language, costs and delays could occur.

By far, the best solution is to hire an attorney and have a professionally prepared formal Will.  An attorney can efficiently draft and present the Will for signature, and also include a special affidavit (called a self-proving affidavit) for the witnesses to sign which will allow the Probate Court to quickly and promptly admit the Will to probate, appoint the person desired by the deceased to serve as the Executor, and issue an order granting Letters’ Testamentary naming the Executor as the sole person with authority to dispose of the assets.