DIVORCE – DON’T SHOOT YOUR OWN FOOT OVER BUSINESS ASSETS
If you have a spouse who owns a business, then that business is likely going to be a community property asset, regardless of whether you have ever had any involvement in either its creation or its management. Consequently, in divorce cases wherein feelings may be bruised, and emotions high, there may be a temptation to harm your spouse’s business—colloquially known as “burning down the business.” But as you now know, that business is likely to be half yours, so never harm your own property. Secondly, even if you feel that you are incapable of running your spouse’s business, you still can benefit enormously from it, post-divorce. As a going-concern, businesses are often worth several multiples of their current assets and income due to “good will,” or the tendency for customers to bring repeat business or to recommend a business to other customers. So, where you’ve got a spouse with a business, make sure that he or she stays in business. Upon division of the marital estate, that business, even if not awarded to you, may go far in determining how much of the house, the 401k, pension, or other assets are eventually granted you.
Nevertheless, if your spouse is in business, then literally THOUSANDS of dollars can be saved in a contested divorce by quietly accumulating business records and tax documents, pre-divorce, which may show what value the business truly has for your spouse. This is true because, once a contested divorce is filed, it is almost certain that your spouse is going to find inventive ways of making that business appear to be worth much less than it actually is. For your part, taking pictures of inventory on a typical day, or collecting phone records showing customer calls, all can go far in refuting your spouse’s claim that the business is “nothing more than a hobby” or that it’s a failing concern and should be shuttered.
Child Support Modification
Changes to child support modification suits. Commencing September 2018, the legislature changed the conditions for modifying a child support order. Under the previous scheme, a court could modify a child support agreement which deviated from the statutory guidelines set forth in the Texas Family Code, for any one of three reasons:
Reason #1: There has been a “material and substantial change in the circumstances of the child or person affected by the order” since the rendition of the original order.
Reason #2: The parents of the child have reached a mediated or collaborative law settlement which does not following the guidelines.
Reason #3: Within three years of the original order being rendered or last modified, the monthly child support payments deviate either 20 percent or $100 from the amount that would have been awarded under Code’s guidelines.
However, commencing September 1, 2018, the courts are now only be able to modify child support orders, even if agreed to, if “the circumstances of the child or person affected by the order materially and substantially changed.” This means that if proposed child support payments differ from Texas Family Code guidelines, then custodial parents will no longer be able to agree to an increase or decrease in child support payments without also showing that the circumstances of the child or a parent have “materially and substantially changed.”
Is There a Waiting Period Prior To Filing for Divorce?
Divorce laws vary from state to state. When you visit a family law attorney in Spring, TX, you can receive legal guidance on how Texas family laws could affect your situation. Your family law attorney will let you know what to expect before and after filing the divorce petition. Expect to be asked a few questions about your residency. A family law attorney can only file a divorce petition on your behalf if you have lived in Texas for at least six months. It isn’t necessary for both spouses to be Texas residents.
Family law attorneys must file divorce petitions in the counties in which their clients live. Counties can have additional residency requirements. If you live near The Woodlands, you should know that Montgomery County requires a residency of at least three months before a divorce petition is filed.
After a divorce petition is filed, and despite the fact that you and your spouse can quickly resolve all issues out of court, you usually must wait 60 days to finalize the divorce. Again, this waiting period begins after the attorney files the initial petition.
A Quick Look at Living Trusts
An estate planning attorney in The Woodlands can help you determine if a living trust is right for your needs. A living trust is an arrangement that holds assets you choose to transfer into it. Unlike a last will and testament, a living trust goes into effect during your lifetime and may continue well after your death. Many people choose to create living trusts because they allow assets to be distributed to heirs without going through probate. Such an arrangement may be more of convenience and, unlike wills that go through probate, a living trust is not usually open to the public. Nevertheless, one should never use a trust in place of a will. They work together to protect your interests.
Watch this featured video for a basic introduction to living trusts. This professional explains that, although a living trust cannot serve as a substitute for a will, it can be an important tool for a comprehensive estate plan. You may choose to designate a trustee to manage the living trust during your lifetime or you may prefer to retain control.
Legal Disputes Regarding Guardianship Over Minor Children
Many people assume that it isn’t necessary to have a last will and testament if their estate is small. But in fact, every adult who has a minor child should visit an estate planning attorney to have a will drafted near Conroe, TX. A will can accomplish more for you than merely designating beneficiaries for various assets. Wills also allow parents to designate guardians in the event that they die before their children reach the age of majority. In addition, a guardian might also be appointed to care for an adult child of a deceased parent if that child has incapacitating special needs.
Contesting a Guardian’s Eligibility
Disputes regarding guardianship may arise when the guardian’s legal eligibility is called into question. If a deceased parent did not appoint a guardian in the will, then the court will usually appoint the next of kin as guardian. Another relative may contest that person’s eligibility to serve as guardian on the basis of that person’s poor conduct. Alternatively, a guardian appointed by the court or designated in a will may be disqualified from caring for minor children because of a conviction of any of the following:
- Sexual assault
- Aggravated sexual assault
- Aggravated assault
- Abandonment or endangerment of a minor
- Inflicting injury on a child
Even if a designated guardian has not been convicted of such offenses at the time that he or she takes custody of the child, their guardianship may be reversed later on if the guardian is subsequently convicted of a criminal offense, or has neglected the child.
Demonstrating Parental Relationships
Legal disputes may also develop if a minor child still has a living, biological parent. Texas law gives preference to appointing the natural parent of a child as the legal guardian. This means that if one of the parents dies, the other parent may petition for custody even if the deceased parent had expressed a preference for another guardian in the will. For example, Mary drafts a will that designates her child’s grandparents as the legal guardians in the event of her death. She prefers that her ex-husband, John, not be appointed as the guardian because of his documented history with substance abuse and prior convictions. In addition to designating a guardian in her will, Mary has her lawyer draft a document that explains and gives evidence of John’s unfitness as a parent. Without evidence of parental unfitness, the court may have given preference to John because of the biological relationship.
The Basics of Estate Tax Planning
One of the questions most frequently asked of estate planning attorneys near The Woodlands is how a person can minimize estate taxes for the benefit of the heirs. Estate taxes are primarily a concern for individuals who plan to leave sizable legacies to their beneficiaries, but everyone can benefit from consulting an estate planning attorney to discuss how state and federal estate taxes might affect their loved ones. Skillful estate planning attorneys can recommend smart strategies that minimize estate tax ( E.g ., a living trust).
Texas Estate Taxes
Prior to 2005, Texas had a “pick up tax.” Although the pick up tax was a separate estate tax, it did not increase or decrease the total estate tax bill. Rather, the pick up tax allowed the Texas Comptroller’s Office to take a portion of the federal estate tax bill. On January 1, 2005, the pick up tax was phased out under the Economic Growth and Tax Relief Reconciliation Act (EGTRRA). This is a federal law that eliminated pick up taxes from all states, not just Texas. Some states later passed state laws to collect separate estate taxes. Texas repealed its inheritance tax , which means that state-level estate taxes are not collected if the property was transferred after the effective date of September 1, 2015. Estate taxes accrued prior to this date must still be paid.
Federal Estate Taxes
Federal estate tax laws are subject to change. An estate planning attorney can provide the most current information to clients who are concerned about minimizing inheritance taxes. Generally, individuals only need to worry about inheritance taxes if they plan to leave millions to their heirs. For 2019, the Internal Revenue Service (IRS) established estate and gift tax exemptions of $11.4 million per individual. This was an increase from 2018, during which the exemption was $11.18 million. This means that you could leave up to $11.4 million to a beneficiary without incurring inheritance taxes. Larger inheritances are subject to federal estate tax. The highest estate tax rate is 40%, but this is subject to change.
7 Instances When You Need an Estate Attorney [Infographic]
A proliferation of online legal forms have made many people assume that they can do things like prepare a will without the assistance of an estate planning attorney. However, hiring an estate planning attorney is the only way to ensure that your assets are divided among your heirs as you wish. The complexity of estate law, which varies from state to state, makes boilerplate forms useless, and further, estate planning involves much more than simply writing a will. Learn about different circumstances in which you could benefit from hiring an estate attorney in this infographic from Andrew J. Bolton, Esq. Contact us when you need an estate attorney in Conroe, TX , and help other families avoid estate issues by sharing this information.
The Types of Decisions Made by Guardians
You may already be familiar with the concept of a legal guardian as it applies to the care of minor children. But did you know that a guardianship can benefit people of all ages? If you take care of an elderly parent or other incapacitated family member, consider talking to a lawyer in Houston about the potential to be legally appointed to make decisions with a guardianship appointment .
There are two primary types of guardianships available. One is over the ward’s estate, and the other is over the ward’s person. A guardianship over an incapacitated person’s “person” allows an individual to make decisions regarding medical care, education, and residency. A guardianship over a person’s estate allows the individual to make financial decisions. These include buying or selling property, paying bills, and allocating money in a way that is in the best interests of the incapacitated person. In some cases, a guardianship is sought because another individual has power of attorney, but is not making decisions that benefit the incapacitated person. A legal guardian’s authority supersedes the authority of the agent with the power of attorney.
The Basics of Probate
In a probate court, a decedent’s will is either authenticated or it is declared invalid. The probate process involves the distribution of the estate to the decedent’s beneficiaries and creditors. There is a “pecking order” as to who gets what from the estate. These actions are facilitated by the executor of the will and by a probate lawyer serving The Woodlands. You can learn more about the probate process by watching this brief video.
This legal professional explains that the probate process may sometimes take longer than a few months if the will is contested or there are multiple claims against the estate. Because of the complexities of estate matters, it’s advisable to seek the guidance of a probate lawyer. A probate lawyer’s advice can prove invaluable, especially in cases in which the will is contested.
Factors to Consider Before Agreeing to Be an Executor
The executor of an estate is responsible for filing the will in the probate court, notifying beneficiaries, locating and managing assets, and consulting an estate planning attorney in The Woodlands. Being named as the executor of an estate is often seen as an honor because executors must be both trustworthy and honest. Yet, many people agree to the job before they truly understand what it involves. Consider talking to an estate planning attorney before making your decision. If you were named in a will as the executor of an estate without your knowledge, then you should know that you do have the right to decline the role.
Consult an attorney to ensure that you meet the legal requirements to serve as an executor. Each state has its own laws, but in general, adults who do not have a felony conviction on their records are eligible to serve. Additional restrictions may also apply to out-of-state executors who wish to probate a will in Texas.
Serving as an executor can take considerable time and energy, depending on how complex the estate matters are. Executors must be detail-oriented, honest, patient, and well-organized. It’s helpful if executors generally work well with other people and have a basic knowledge of finances. Before you agree to be an executor, consider whether you’re willing and able to carry out the following tasks:
- File the will
- Notify beneficiaries
- Manage assets during probate
- Terminate outstanding contracts
- Notify government agencies and banks of the death
- Establish an estate bank account
- Pay continuing expenses and taxes
- Notify creditors and pay debts
- Distribute the property
- Close the estate
Even if you’re confident that you can carry out the many responsibilities of being an executor, there may be personal issues that get in the way. For example, you might live far away from the probate court or perhaps far from the primary asset which needs care and oversight. Perhaps you might not have enough time to spare to do the job properly. In cases of co-executors, you might have difficulties working with a co-executor. Or you might have reservations about dealing with particular beneficiaries who might disagree with the will or with your handling of estate matters. On the other hand, if you are the sole beneficiary and you’ve also been named as the executor, then serving in this capacity should be fairly straightforward—especially with the assistance of an estate planning attorney.
- Estate Planning
- Family Law
- Drafting a Will
- Divorce Lawyer
- Texas Family Law
- Real Estate
- Probate Court
- Child Custody
- Andrew J. Bolton
- Law Office of Andrew J. Bolton
- Contested Divorce
- Child Support
- Living Wills
- Contested Will
- Probate Bond
- Heir Apparent
- Legacy Contact
- Living Trusts
- legal guardian
- Legal Disputes
- property rules
- Common Law
- Estate Tax