iHQ: Article IV
About the Frye, Oaks, Benavidez & O’Neil, PLLC Information Headquarters:
Frye, Oaks, Benavidez & O'Neil, PLLC has a boutique estate planning practice serving the GLBTI community’s unique needs Post-Obergefell and assisting their allies in the broader Texas community as well with family wealth preservation and transfer during life and at death. We work with all individuals and families of all sorts of backgrounds since we know how important it is that we provide for the beloved family, friends, and/or charitable entities we will leave behind.
Original publish date of 11 January 2016
Prepared by Daniel L. O’Neil, Partner
Schedule an appointment with me to discuss your specific estate planning needs at 713.227.1717
Article IV: To Probate Court and Beyond
ARTICLE IV topics on EASY MODE
§073: 30,000 foot overview of the probate process
To probate a Will it has to be established in court that the Will meets some basic requirements: it was executed correctly, it was not canceled or revoked, and it was self-proved (or is going to do it the hard way if not self-proved.)
This is a simple summary of some, not all, things that are going to happen in the probate process:
§074: Heirship proceeding
Heirship in the Probate Court is the relationship between a decedent (intestate, or Will failed to dispose of all property) and an heir (designated by the laws of descent and distribution) which results in the heir receiving property. The application to determine Heirship can be made with or without an application for Administration.
The court must appoint an Attorney Ad Litem for all unknown heirs. The court may appoint an Attorney Ad Litem for all of the living heirs whose names or whereabouts are unknown or who are incapacitated if, in the court’s discretion, it finds that the appointment is necessary to protect the interests of the living heir or incapacitated person.
The descent and distribution chart:
§075: Small estate affidavit
If there is no Will and the decedent owned a small estate, then a full blown probate might not be necessary and things might be able to be done on easy mode for intestate decedents with a small estate affidavit (“SEA” for short.) If the decedent owned real estate in addition to the homestead, a small estate affidavit is likely not going to work and will need to proceed with the determination of heirship route. An affidavit is also likely not going to be accepted to transfer title to stocks and bonds, since New Yorkers and the NYSE have never heard of a small estate affidavit – they may force you to go through an administration.
Here is some help from Fort Bend County on SEA:
§076: Muniment of Title
If there is a Will but few assets, then the easy mode for testate decedents will be proving validity of the Will, showing the estate has no debts, and that there is no necessity for administration. Going this route, no executor is going to be appointed since there will be no need for one. But just like with the small estate affidavit, the muniment may be ineffective to transfer title to stocks and bonds – so the New Yorkers may force you to go through an administration.
§077: Local Rules
If you are practicing in Harris County the Local Rules are important. You can find them here: https://www.harriscountytx.gov/probate/jurisdiction.aspx
If you are practicing in other counties, the rules in other counties might be important as well.
§078: Creditors in probate
When someone dies or becomes incapacitated, one of the last things that might be thought of was who they owed money to prior to their death or onset of incapacity. However, those creditors definitely are thinking about the money owed to them.
When an estate has plenty of money in it, it is called solvent: their assets actually exceed their debts. So it is a matter of determining what the debts are and paying them off. This is life on easy mode.
A decedent or incapacitated person owing debts to a creditor only has the assets belonging to them exposed. What this means practically is if their debts exceed their assets, they are insolvent and do not have enough money to pay what they owe. For these situations, there is a process laid out in the Estates Code to cover which of the creditors get paid at that point, and how little they get paid. Certain death expenses (such as funereal costs) will be paid even before any creditors get their share.
As a practical note, it is the rare unicorn of a creditor that will actually recognize a decedent’s estate is insolvent.
These are some issues to be concerned about:
Whether the estate is actually insolvent, or if the estate is subject to the Fraudulent Transfer Act due to secreted or improperly transferred assets.
If the creditor obtained a judgment against the decedent prior to their death, it becomes more likely they are going to try to double down their efforts on collecting when they start over in Probate Court. This probably matters most in the context of whether the creditor is an “interested person” that will race down to the courthouse (Editor’s note: I am old enough we had to file at the courthouse when I started out as a baby lawyer, but now we e-file – it’s just not the same mental picture!) and beat the family or friends in applying for probate. Put concisely, yes, the creditor is an “interested person” and they can be first to file if they like money.
Whether the decedent was testate or intestate; whether it is going to be an independent or dependent administration. Paths diverge.
v Whether all estate assets are listed on the Inventory
v Whether the intended recipients of exempt property are lawfully entitled to that exempt property
There are more issues of course. This is just a quick sampling of things to think about.
§079: Independent or Dependent Administration
Estate administration involves managing the estate and settling the estate. This is done by a personal representative (“PR” in shorthand) that needs to be approved by the court.
Independent administration will be free of court supervision to wind up the estate (after the inventory is filed) to do such things as settle up with creditors, set aside the homestead and other exempt property, sell assets for payments of debts and expenses, and distribute the remaining property in the estate to the beneficiaries entitled to it. This is a fairly short list of things to do but they are each much more involved than it sounds like. Imagine what it would look like if the court needed to be involved in nearly every decision.
Dependent costs more than Independent since the court needs to sign off on everything. Most Testators do not want a Dependent administration and if their Will is done by an actual Estate Planning lawyer then the Will should reflect this.
However some situations are better served by a dependent administration, especially when there are large numbers of creditors and many of them might prejudice their own claim, if they are New Yorkers that are not familiar with Texas probate.
§080: When someone important passes away …
The most important thing to do at first is to take time to grieve, accept the loss of that person, and to cherish the good memories you have with them throughout the years.
After you have seen to yourself and the other family members and friends grieving and trying to process the loss, then the paperwork process needs to begin.
Some of the first steps to take in that process include:
- Funereal arrangements by the person named in the Appointment of Agent to Control Disposition of Remains;
- Obtain multiple copies of the death certificate;
- Locate and gather the essential and vital documents relating to the Will, trusts that exist, stocks/bonds/bank account information, and insurance policies;
- Contact SSA to give notice of the death if the decedent was an eligible recipient;
- Notify the relevant life insurance companies of the death;
- Contact the Executor named in the Will;
- Contact the Estate Planning lawyer that drafted the Will if you know who drafted the Will;
- Contact the trustee of any trust created by the decedent, along with the lawyer that drafted the trust document if you know who drafted it;
- Call the administrator of the decedent’s pension plan if they had one;
- Notify the decedent’s banks and financial institutions of the death;
- Notify the credit card companies where the decedent had an account;
- Review medical bills and verify that insurance and Medicare claims have been processed
Probate begins with an Application to Probate Will and for Issuance of Letters Testamentary. This is the application. This is typically done by the Executor mentioned in the Will, but it can be done by any “interested person” which is often a creditor who wants their money. There are some basic requirements for the application spelled out in the Estates Code; the application should include the Will along with any codicils.
The clerk posts citation to all parties interested in the estate. The return date is then set and the hearing to probate the Will cannot be held until after the return date.
At that hearing the Executor presents proof of the death along with the Will. Then it is determined if the Will should be admitted to probate. The judge will issue an order probating the Will and appointing the Executor. The Executor takes the oath. Then the court issues Letters Testamentary to the Executor which confirm to the rest of the world that the Executor has authority to settle up the affairs of the estate.
The next steps include the Executor publishing a notice of creditors with a newspaper within the next month and receiving the publisher’s affidavit that the publishing was done lawfully. The Executor also sends the Letters Testamentary to creditors holding liens within the first two months of receiving the Letters Testamentary. The Executor has 60 days to send certified letters to beneficiaries including the order admitting the Will to probate along with a copy of the Will. Then a sworn affidavit needs to be filed with the court stating that notice to beneficiaries was completed, not more than 90 days after the Will was admitted to probate. The inventory, appraisement, and list of claims showing the current state of the estate also needs to be filed within 90 days; or an affidavit in lieu of inventory. The Executor needs to file the final income tax return for the decedent. There might estate tax stuff to work out for the very rare large estate that had no tax planning in place. Creditors are dealt with. The estate remaining is disbursed in accord with the Will. New titles are issued for titled assets. The Executor starts to breathe easier with all of this done now.
§082: Not eligible to serve as Executor
ARTICLE IV topics on HARD MODE
Nobody participates in crafting an estate plan and following through with the formal Will execution ceremony with witnesses and notary just for fun. They are participating in the estate planning process so their last wishes are fully respected. Testators need to be aware of the possibilities of the numerous ways in which their estate plan (not just the Will – but also the nonprobate transfers) can be challenged.
Some family situations require extreme measures be taken to document capacity and intent, since we know a Will contest is coming just because that is who the family member is. This is a very important part of the estate planning process to discuss the entire family and learn about who the “troublemakers” are – so proper steps can be taken to document everything and to prepare for litigation.
Complex family situations (especially with GLBTI related family issues) require sophisticated legal counsel from such boutique estate planning practices as Frye, Oaks, Benavidez & O'Neil, PLLC.
Testators are not doing themselves any favors to be getting cheap Wills online, or from a lawyer that does not have a boutique estate planning practice. What they are getting from these options may be cheap, but it will cost them dearly in the end.
There are four main sorts of concerns:
- The only issue is the person you appointed as Executor in your Will. Your family thinks that person is a known scofflaw and habitual drunkard, so they are not to be trusted in a fiduciary position. Your family is not contesting anything in your Will or other matters. For our friends in the GLBTI community this is how conservative families used to challenge the same-sex (or trans*) romantic partner, since until Obergefell there was no legal recognition of their decades long union.
- The only issue is that the Will in your hands isn’t the right Will! A family member comes forward with a more recently dated Will than the one you have. Was the one in your hands revoked by the Testator? Is the Will in their hands a fake? Thus begins the litigation to find out which Will is THE Will.
- The only issue is that the Testator had no capacity to execute the Will so it is not a valid Will. This is where videotaping the formal Will execution and taking other extreme measures will help document that there was capacity. Throughout history there have been some interesting challenges on capacity – two very interesting cases, coming to different conclusions, focused on the capacity of a “known drunkard” to execute a valid Will. With twitter and facebook posts these days one can amass a wealth of evidence that someone was not in their right mind at most points in the day, but what about the other points in the day such as when they were discussing estate, gift, and GST tax consequences with the lawyer drafting their Will?
- The only issue is that there was a incubus (or succubus, no judgment) that twisted the desires of the Testator with undue influence, and the Will does not reflect the Testator’s actual intentions. Litigating these issues requires looking at the totality of the circumstances – not snap judgment that the 80 year old man left his entire multimillion dollar estate to the 19 year old Abercrombie & Fitch underwear model he just met on grindr dot com. Undue influence also comes into play in a major way with changing beneficiary designations on nonprobate assets – and these lead to frequent criminal prosecutions, usually taking priority over the corollary proceedings on the civil issues in Probate Court.
An essential part of knowing what the minefields are, before any documents are executed, includes hearing about your family, friends, and charitable interests in detail. This lets us know the context for your estate planning – why you hate Uncle Touchy, why your nephew is your favorite person in the world, how you met your spouse or unmarried romantic partner. All of this matters. And we provide you a judgment-free safe space to tell us all about it. Which helps us in crafting the estate plan, documenting everything, and preparing for litigation if we know with certainty that it is coming from your Uncle.
§084: Mediation for GLBTI probate litigation
Mediation is a power alternative dispute resolution (“ADR”) tool that allows parties to creatively resolve the differences that have brought forth the litigation conflict. Unlike the harsh outcomes sometimes received by a judge or jury, you get the opportunity to make your case passionately, figure out what is really upsetting you, and try to reach a better outcome now than spending years (and lots of money) preparing for trial and then appeals.
The third party neutral mediator helps the parties narrow in on the problems and try to find a solution. Many times with complex families the issue is not strictly about money, it is about being upset over something that happened twenty years ago. Unlike in commercial litigation where being upset is not going to provide a lot of leverage in settling a breach of contract case, in family matters like divorce, guardianship, and probate sometimes an apology tilts the balance of negotiations and leads to a solution.
The mediation services that Frye, Oaks, Benavidez & O'Neil, PLLC offer in guardianship and probate litigation focus on one thing: respect for the family unit. We focus our efforts, especially in families with GLBTI related issues, on helping families reach a lasting, peaceful settlement and compromise that saves them the expense of protracted litigation and the years of anguish it takes to wind through trial and appeals.
The parties are separated by a full hallway in different conference rooms that do not share a common wall. The other party is not allowed to wander around and place a stethoscope against the door of your conference room to eavesdrop on your private conversations.
Anything you say to the mediator is strictly confidential. You can blow off all of the steam you want and the mediator will sit there, listen, and forget what you just said. If you want the mediator to bring an exact settlement offer, or raise certain issues with the other party, you need to explicitly authorize the mediator to take your offer on issues to the other party or allow the mediator to disclose the content you want to disclose.
Mediation is informal. There are no formalities like in the courtroom with “your honor” and “may I approach” and having to silence your cell phone. If you need to take a smoke break, you can go outside and pace down the street without needing to worry about being held in contempt like you would if you did that in court as the judge is trying to talk at you.
The goal is to reach a lasting resolution and one way that happens is to focus on your comfort and your freedom. Mediation is voluntary – you are not required to be here, chained to the chair. But you want to be here – to save yourself time, money, and frustration of letting a stranger (the judge) or strangers (the jury) solve your complex family problem and learn all about the details of your family that you might want to keep somewhat private.
Matters discussed during mediation are held in the strictest of confidence. Things said, or mean pictures of opposing counsel drawn on napkins during mediation, will never be disclosed outside of the mediation. We strictly uphold the confidentiality of our mediation process because our reputation is at stake and we protect your reputation as our own.
Fees and other details
- The cost of mediation is charged on a single, understandable flat-fee basis based on the length of time booked.
- The cost is split evenly between the parties and must be paid in full three business days in advance of mediation, or the mediation will be canceled.
- There are no hidden charges.
- We have a private parking lot of our own out front so you do not need to worry about unexpected parking lot or garage fees.
- We provide coffee and snacks free of charge for any mediation.
- For full day mediations we also include a full lunch in the price of the mediation.
- Investigating reports of abuse, neglect, and exploitation of adults who are elderly or have disabilities;
- Conducting in-home investigations and providing or arranging for services;
- Investigating allegations at facilities;
- Educating the public about prevention of elder abuse.
Half-day mediations will typically run from 9am to 2pm, or 1pm to 6pm.
Full day mediations will typically run from 9am to 6pm.
We only schedule one mediation per day so if a half-day mediation is making good progress, we can continue.
Because we personally know how difficult it is to find time during the week for working people we offer night, holiday, and weekend appointments as well for a nominal extra charge.
ARTICLE IV topics on LEGENDARY MODE
§085: The Unauthorized Practice of Law (“UPL”) in the State of Texas
About UPL generally
Section 81.101(a) of the Texas Government Code states: In this chapter the "practice of law" means the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined.
Section 38.122 of the Texas Penal Code prohibits a person from holding himself out to be a lawyer unless licensed to practice law if it is done with an intent to obtain an economic benefit.
Section 38.123 of the Texas Penal Code prohibits a person from taking certain actions with respect to personal injury claims if done with an intent to obtain an economic benefit.
There are two separate kinds of UPL cases that are investigated:
(1) an individual not currently licensed to practice law in the State of Texas (this includes out of state attorneys as well as Juris Doctor candidates , unlicensed law school graduates, and individuals with no formal legal training) gives legal advice or misrepresents themselves as an attorney;
(2) a Texas lawyer in good standing with the State Bar of Texas facilitates the unlicensed practice of law by another individual.
UPL investigations begin with a simple target letter informing you that you have been accused of UPL and you have the opportunity to respond to the Investigator – often without having the full details of the conduct complained of in the complaint. If you get a target letter you should not fire off an angry response, as there could be unintended consequences of not professionally dealing with this legal matter.
There are nearly 40 districts in Texas and this letter will come from an Investigator in a subcommittee in one of those districts. When a complaint is made on the UPLC's website the complaint is assigned to the proper geographic district. For instance, District 4 covers the Greater Houston area, so if the conduct complained of occurred in the Houston area then you would receive a target letter from an Investigator on the District 4 Subcommittee.
There is a short deadline to respond to the target letter and the investigation will be underway quickly. Once the investigation starts you need to have a lawyer on your side who understands this niche practice area and can help defend you through the investigation in correspondence with the Investigator and if you are subpoenaed to give oral testimony in front of the entire Subcommittee. There are a variety of ways to resolve the cases amicably prior to litigation. In the worst case scenario, you are sued in civil court or your file is referred to the Criminal District Attorney for prosecution. Both will follow you as an albatross for quite some time if you are not proactive in dealing with the investigation before the courts and the criminal justice system become involved.
The UPLC does not issue opinions on what constitutes the practice of law. However if you have a business idea and you would like to run it by a lawyer to see if it fits within the penumbra of UPL, you would be wise to have an opinion letter analyzing the business model and applying the current statutes and case law to the business. We stand behind our opinion letters and if you choose us to analyze your business we will defend the opinion letter in front of the UPL Subcommittee free of charge to you if your business finds itself with a target letter in the future.
More importantly, UPL in the Estate Planning and probate realm
Lawyers spend at least three years in law school earning the Juris Doctor (“J.D.”) They pass the Multistate Professional Responsibility Exam (“MPRE”) which addresses ethics. They study for the three day Texas bar exam, receive a passing score on the bar exam, and pass the character & fitness test before being admitted to the Texas bar and sworn in as a licensed attorney. Then they are under ongoing annual obligations to take Continuing Legal Education (“CLE”) to stay current.
People that are not real lawyers do not go through any of that, they just tell people that they are “lawyers” and then they will usually defraud them financially at best, or at worst seriously complicate their legal situation and create new problems. As a result of this the Supreme Court of Texas instituted the Unauthorized Practice of Law Committee (“UPLC”) to investigate people that are claiming to be lawyers and/or people that are doing legal work but are not lawyers.
At the very least there will be an investigation that takes place in the District that covers the part of the state where a victim or other person claims that you were practicing law in an unauthorized fashion (the “UPL Complaint.”) These investigations can start a year or longer after the complaint date. These investigations can last over a year. If your investigation is not closed out without further action or settled in an amicable fashion, you are looking at either a civil lawsuit you need to answer (or ignore) or potentially your file will be referred to the District Attorney’s Office for review and potential prosecution.
The unauthorized practice of law in the State of Texas is a crime. If you are not getting your estate planning advice from an estate planning lawyer you have confirmed is actually licensed to practice in this State and is currently in good standing with the State Bar, then watch out!
Texas has seen UPL most commonly in the estate planning (and tax) arena with scams and schemes to sell living trusts to seniors. Living trusts come with numerous cautions and discussions of pitfalls when a Texas lawyer is discussing them; but a fake lawyer or someone that is just a salesman trying to sell things so they make money off of you is not going to discuss any of these pitfalls or cautions. That should be your first caution – when things are too good to be true, they usually are. The deal with living trusts is that they do not exist in a legal grey zone where you will never pay taxes to the government ever again. If someone tells you this and doesn’t include the other relevant information, exceptions, and explanations then do not sign a contract with them and do not give them money.
Just because one or more district subcommittees of the UPLC are investigating you for alleged UPL does not mean you are going to the big house. But as is recommended with all white collar investigations and prosecutions, call your team of white collar criminal defense lawyers here at Frye, Oaks, Benavidez & O'Neil, PLLC - http://www.liberatinglaw.com/index.php/practices/40-areas/87-white-collar-criminal-defense.
§086: Elder financial abuse
Financial exploitation of elders in the Estate Planning and probate realm is a serious issue and requires reporting immediately.
Here is a link on elder financial abuse:
http://www.preventelderabuse.org/elderabuse/fin_abuse.html and another one on elder abuse: https://www.texasattorneygeneral.gov/seniors/elder-abuse
When there is even the appearance of financial impropriety Texas Adult Protective Services (“APS”) will be on your doorstep to investigate.
Adult Protective Services responsibilities include:
Just because APS is investigating you doesn’t mean you are going to the big house. But as is recommended with all white collar investigations and prosecutions, call your team of white collar criminal defense lawyers here at Frye, Oaks, Benavidez & O'Neil, PLLC - http://www.liberatinglaw.com/index.php/practices/40-areas/87-white-collar-criminal-defense.
§087: State criminal prosecution
If you are accused of improprieties related to money, you should probably start worrying about a potential criminal prosecution. Sometimes these will spring out of a contested probate litigation that is going really badly for one side – they just start making accusations and bend the ear of an Assistant District Attorney friend from junior high, and now you are a defendant facing hard time.
These prosecutions that are tangentially related to the Estate Planning and probate process run the gamut of all of the white collar crimes that are state offenses. As is recommended with all white collar investigations and prosecutions, call your team of white collar criminal defense lawyers here at Frye, Oaks, Benavidez & O'Neil, PLLC.
§088: Federal criminal prosecution
Just as there are state causes of action springing out financial improprieties, so too are there federal offenses related to the same behavior. In some cases the state will back off and let the United States Attorney’s Office take the lead on prosecution in the federal arena.
Money laundering in particular
Money laundering is a familiar concept for any person that has seen the film Office Space or the television show Weeds, but the digital age has expanded the reach of money laundering into Second Life, World of Warcraft, Bitcoin, and beyond the Silk Road. The federal government has nearly unlimited resources to fully investigate cases of potential money laundering since it shares such a deep historical nexus with organized crime and terrorist financing. Money laundering includes Bank Secrecy Act violations such as FBAR, whose criminal penalties could include a fine of $500,000 and/or ten years of imprisonment.
As is recommended with all white collar investigations and prosecutions, call your team of white collar criminal defense lawyers here at Frye, Oaks, Benavidez & O'Neil, PLLC -admitted in the Southern District and Northern District of Texas; in the Fifth Circuit Court of Appeals; and the Supreme Court of the United States. But, also can be admitted in other federal districts and Courts of Appeal around the country. http://www.liberatinglaw.com/index.php/practices/40-areas/87-white-collar-criminal-defense.
§089: Tax crimes
In addition to the other federal offenses potentially prosecuted related to financial improprieties in the Estate Planning and probate world, there are also the more specific tax crimes.
Tax crimes include failure to file, tax evasion, making false statements, tax fraud, evasion of payment, failure to supply information, failure to keep records, fraudulent withholding, motor fuel excise tax offenses, aiding or assisting the preparation of a false or fraudulent document, removal or concealment with intent to defraud, attempts to interfere with administration of the tax laws, conspiracy to defraud the government, false/fictitious/fraudulent claims, conspiracy to commit offense, fictitious obligations, identity theft, and more. The one thing they have in common is that there are serious consequences from not taking it seriously the moment two Special Agents (carrying a gun, unlike Revenue Agents) show up on your door step wanting to talk. Just like in an investigation for a violent offense you do have rights and you should exercise them by engaging a tax crimes lawyer to zealously represent your interests.
As is recommended with all white collar investigations and prosecutions, call your team of white collar criminal defense lawyers here at Frye, Oaks, Benavidez & O'Neil, PLLC - http://www.liberatinglaw.com/index.php/practices/40-areas/87-white-collar-criminal-defense.
This concludes ARTICLE IV.
Thank you for reading ARTICLE IV in Frye, Oaks, Benavidez & O'Neil, PLLC’s Information Headquarters.