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.
Comparing Common Law and Community Property States
For many couples, living in either a common law or community property state is only relevant when a divorce is imminent or when one spouse dies. The designation of the state you live in will influence the distribution of property during the divorce. If you are new to Texas, and upon consulting with a family law attorney in Houston, you’ll learn that Texas is a community property state. It’s important to bring documents pertaining to your assets to your consultation with the family law attorney in order to learn how your property might be divided by the court.
Common Law Property Rules
Common law property rules are applicable in most states. Typically, this means that when one spouse acquires property during the marriage, that property is only owned by that spouse. If both spouses purchase property such as a house or vehicle, then each spouse owns 50% of that property. Common law property rules also apply to property that is received as a gift. When one of the spouses dies, his or her separately owned property is distributed in accordance with the will or the rules of intestate succession. Jointly owned property may become the sole property of the surviving spouse or half of the ownership may be distributed to someone else, depending on how ownership was shared by the spouses. For example, owning property via “joint tenancy with the right of survivorship” would pass full ownership of the property to the surviving spouse. If the property is owned via “tenancy in common,” then the property may be distributed to another beneficiary.
On the other hand, the rules of community property can be quite complex, and this is one reason why it’s advisable to consult a family law attorney. In community property states, all property acquired during the course of the marriage is considered to be marital or community property, which involves shared, 50/50 ownership (unless you can prove otherwise). Your family law attorney will need to know when various assets were acquired to determine whether they are solely or jointly owned with any third party. In contrast to property acquired during the marriage, assets purchased and wages earned prior to the marriage belong solely to one spouse who acquired the wages or earnings. Interestingly, earnings and assets acquired after the physical separation of the spouses are not solely owned but still may be considered community property. Community property law also applies to debts.
Should You Talk to Your Heirs About Your Will?
After visiting a will attorney in The Woodlands, you might consider discussing your estate plan with your family members or other beneficiaries. You do not have an obligation to divulge the details of your will, but there are many good reasons to consider doing so. For example, letting your beneficiaries know what they can expect to inherit may reduce the risk of a contested will .
Promoting Family Harmony
When one or more family members decide to challenge a will, financial gain is not the only issue at stake. A will contest can instigate hostilities among family members that can last for years and may even lead to permanent estrangements. It is not likely that this is the sort of legacy you wish to leave behind. Of course, deciding not to speak with your heirs about your will while you are still alive will not automatically result in family conflict. However, many individuals wish to avoid the possibility altogether by simply having a frank discussion with their heirs.
Explaining Your Decisions
Discussing your will with your heirs can grant peace of mind to everyone involved. You’ll have the opportunity to explain why you decided to leave the house to one sibling and the collection of heirloom jewelry to another. Decisions which may seem obvious to you might not necessarily be easily understood by your heirs. For example, it may make sense to you to leave the vacation home to the heir who used it the most and to compensate for this by leaving a larger sum of money to another heir. But since your heirs might not easily discern your reasoning after you’re gone, it may be wise to give them an explanation now.
Adjusting the Inheritances
Because estate planning is a sensitive issue and many individuals hesitate to disclose the details of their wills to their heirs because they fear being pressured to change their decisions. The provisions that compose your will are entirely yours to make; no one should pressure you to change your mind. Yet, it isn’t unreasonable to listen to the responses of your heirs and consider making adjustments should they make sense to you. For example, you might have your heart set on leaving your amber jewelry to your daughter, but perhaps she doesn’t wear jewelry and would rather you left it to someone who would appreciate it more.
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