The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

For most people, thinking about not being able to make financial decisions is bad enough.  But thinking about not being able to manage health care is even worse.  After all, money is just that: money.  But your health and health care is different.

So this week I thought I write about, what happens if you are no longer able to manage your health care?  What if you are incapacitated such as with dementia and can’t make health care decisions for yourself?  Who will make those decisions for you?

Two Options

You have two options: Plan ahead, or do nothing.  I do not advise doing nothing.

For planning ahead, you can choose who you want to make health care decisions for you if you’re not able to make those decisions yourself.  In Texas, you do this by creating an power of attorney for health care, which is sometimes called a health care power of attorney or a medical power of attorney.

Power of Attorney

In your power of attorney for health care, you name someone (your health care agent) to make health care decisions for you if you can’t.  These decisions include doing things like talking to doctors, scheduling health care appointments, consenting to medical treatment, picking up prescriptions and so on.

Who decides whether you’re incapacitated?  Again, you choose in advance who decides whether you are incapacitated.  You may have a doctor determine that you’re incapacitated. Many people choose to have a doctor make this decision, but you need not have a doctor make this decision.  You can also name a spouse, children, or someone else you trust.

Think of Your Health Care Needs in Advance or:

What happens if you don’t plan ahead?  If you don’t have an power of attorney for health care and you become incapacitated, someone such as a family member or loved one will have to file a case with the court to ask for them to be appointed as your guardian.  While we work with people to establish guardianships, I don’t advise this as a viable alternative to estate planning and creating an power of attorney for health care. This is because there are several problems with guardianship cases.

First, guardianship cases can be slow.  While it’s possible to get an emergency order if needed, guardianship cases often can take several months.

Second, guardianship cases are expensive compared to planning ahead.  Imagine a scenario where a person needs to be cared for.  Everyone agrees:  No one is fighting over whether the person needs a guardian, or who should be appointed as guardian.  For this “simple” case, attorney’s fees may range from $7,500 to $10,000.

The third problem with guardianship is that it’s public.  Everything that happens in court is public.  Plus, anyone who is an “interested party” to the person subject to the guardianship is entitled to notice of the case and has the opportunity to make their wishes and desires known.  Sometimes families are estranged from each other.  But the brother who you haven’t talked to in 10 years, and the parent that you haven’t seen in 5 years, are all entitled to notice of the case and have the opportunity to appear in court and make their wishes known.

Plan Ahead

For these reasons, I don’t advise that you do nothing.  Instead, it’s important that you plan in advance.

Having a well written power of attorney that includes health care is an important part of a comprehensive estate plan.  I suggest that it may even be more important than setting up a Last Will and Testament, because an power of attorney for health care will help you and your agent manage your health care while you are still alive.  It’s worthwhile to give your health care  some thought in advance.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

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The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

Another primary is upon us.  A couple of years ago I wrote about my oldest voting in his first election and I had a conversation with a friend about voting, they had never voted.  So I thought I try again to encourage folks to vote.  My family has always challenged each other to vote and be the first to vote, this year I won. Voting is one of our greatest rights!  If the number of people who don’t vote would make an educated vote, then I suspect our country would be far better off.  The incumbent office holders count on you not voting.  They work to stay in office, sometimes for the wrong reasons.  Understand, I am not saying all politicians are bad, but power corrupts people and staying in office too long, can corrupt folks.  But you will not be a part of this process unless you vote.  Our state and local elections are also very important and it is our right to choose our leaders.

I have discussed voting with many people and I am always amazed at how many people do not take advantage of their right to vote.  Considering the extreme sacrifices our ancestors endured to obtain and protect this right, it baffles me that voter turn out is so low.  

To underline the importance of voting, this week I thought I would provide some of the most famous events in the voting history of the United States.

•             The passage of the U.S. Constitution in 1787 gave white male property owners age 21 and over the right to vote.

•             Series of acts from 1807 through 1843 changed voting requirements so that all white men 21 and older could vote.

•             The 15th Amendment, passed in 1870, guaranteed the right to vote to all men that were 21 or older regardless of race or ethnic background.

•             The 19th Amendment, passed in 1920, gave women age 21 and older the right to vote.

•             The 24th Amendment, passed in 1964, made it illegal for states to charge poll tax to voters. 

•             The Voting Rights Act authorized the federal government to take over registration of voters in areas where state officials had regularly prevented blacks and other minorities from registering to vote or cast their ballots through usage of literacy tests, grandfather clauses, and intimidation tactics. This Act enforced provisions previously guaranteed in the 13th, 14th, and 15th Amendments of almost a century earlier. 

•             The 26th Amendment, passed in 1971, lowered the voting age across the nation to 18. 

•             The Voting Rights Act Amendments of 1982 extended right to vote guarantees given in the 1965 legislation. Further provisions for Americans with disabilities, voters not able to read and write, and those not fluent in English were added to insure their freedoms.

•             The National Voter Registration Act (Motor Voter) of 1993 expanded the opportunity for convenient voter registration for every person of voting age by increasing the number of active government agencies serving as registries. The departments of Safety, Health, Human Services, Mental Health and Retardation, and Veteran’s Affairs are required to include voter registration applications with their own department’s forms. Other government offices such as libraries, post offices, county clerk offices, and the Registrar of Deeds will also have voter forms available to the public.

According to a study done by Dr. Michael McDonald, Department of Public and International Affairs at George Mason University on voter turnout, 28% of the eligible voters in Texas actually voted in our 2008 Presidential Primary.  This was up from 2000 (11%) and 2004 (15%).  However, I still feel this low turnout is very sad.

Many times I am given the excuse “one vote does not matter.”  So I thought I would provide you with some examples of where one vote did matter. 

•             In 1645, one vote gave Oliver Cromwell control of England.

•             In 1776, one vote gave America the English language instead of German.

•             In 1868, one vote saved President Andrew Jackson from impeachment.

•             In 1875, One vote changed France from a monarchy to a republic.

•             In 1876, one vote gave Rutherford B. Hayes the Presidency of the United States of America.

•             In 1923, one vote gave Adolf Hitler leadership of the Nazi Party.

•             In 1941, one vote saved the Selective Service – just weeks before Pearl Harbor was attacked.

•             In 1990, one vote decided a state House race in Oakland County, Michigan.

•             In 2008 the first African American was elected President of the United States. 

•             In 2016, in what many thought was an upset, Donald J. Trump was elected President of the United States.

•             In 2020, in what can best be described as chaos, Joe Biden was elected.

In his Gettysburg Address, Abraham Lincoln said: “It is rather for us to be here dedicated to the great task remaining before us — that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion — that we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.”

Early voting is open now.  Next week (7 am to 7 pm) or certainly Tuesday, March 1, take advantage of your right to vote.  No matter who your personal choice is, the key is that you exercise this right paid for so dearly by our ancestors.  So, be a part of history, VOTE!

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.  www.moakandmoak.com

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A common legal myth that is often heard in cafes and barber shops around Texas is that property cannot be landlocked because a neighboring landowner is required to allow entry.  This is simply false.  Understanding this can be important for both the landlocked owners and neighboring landowners so that each party understands his or her rights. 

Under Texas law, absent an easement or other right of access legally obtained, property certainly can be landlocked.  This can cause problems for a landowner in regard to the marketability of the property.  First, title companies are usually unwilling to insure title to a property that lacks access, so, without access, the property will likely be difficult to sell to any party desiring title insurance.  Second, without insurable title, a lender is very unlikely to loan money against the property.  Given this, it is prudent for a landowner to seek some sort of legally enforceable right to access the property.

Although there is no automatic right to access landlocked property, there are a number of options a landowner may consider and seek to utilize in order to obtain legal access to property. 

Likely the easiest way to obtain access to landlocked property is to obtain an express easement from a neighboring landowner.  This easement should be in written form, signed by the grantor, specifically identify the property and details of the allowed easement use, and be filed in the official public records of the county.  If a neighbor refuses to grant  this type of express easement, a landlocked owner will likely be forced to look elsewhere for access.

In the event an express easement cannot be obtained, an easement by necessity may be a method by which a landlocked owner can obtain access.  However, there are specific facts which must be proven in a lawsuit in order to obtain an order granting this type of easement.  The cost of litigation itself may make this too expensive an option to pursue.

Another option for a landlocked property owner may be to consider the elements of a prescriptive easement.  Again, this would require filing a lawsuit and would only apply in narrow circumstances.  Importantly, if the landlocked owner had permission to use the easement, there can be no finding of a prescriptive easement.  A person claiming the prescriptive easement must prove he or she has used the easement for a least 10 years, and the use was (1) open and notorious, (2) continuous, (3) exclusive and (4) adverse (without permission).

In the event the person seeking to obtain an easement can show a representation that an easement existed and detrimental reliance on that representation, an easement by estoppel may be a possible solution.  Yet again, this requires an expensive lawsuit.

Finally, another option for landowners may be a statute in the Texas Transportation Code that allows a landlocked landowner to seek a public road from the commissioners court for the county.  While this may not require a lawsuit, it does require the landowner to file a swore application with the county commissioners’ court, notice must be given to each property owner who would be effected, and a hearing on the application will be held.  If the commissioners’ court determines the landowner has no access to their land, the court may issue an order creating a public road.  Damages to affected property owners will be provided in the same manner as for other public roads, and the county pays all costs in connection with proceedings to open a road.  Thus, because of the cost to the county, this may not be a viable option.  The county commissioners are not required to provide the road.  It is within their discretion. 

Additionally, there may be some reason for concern over whether a road created under this method could potentially be an unconstitutional taking of private property.  The Texas Supreme Court held a prior version of the statute authorizing this method unconstitutional as it found a commissioners’ court could not take private property for a private use. 

If you find yourself the owner of landlocked property, do not go to the cafe’, barber shop or water cooler for advice. Consulting an attorney familiar with real estate law to help you in this area is very important. 

The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. 

www.moakandmoak.com

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In my last column, I discussed landowner liability.  This week, I will discuss a few steps that should allow a landowner the best opportunity to avoid being held liable.

There are a number of steps for a landowner to consider in order to protect himself or herself from liability.  Importantly, there is no magic solution that will ensure a landowner will never be liable for injury.  Further, there is nothing a landowner can do to prevent a person from filing suit against the landowner. 

Carry Liability Insurance

The most important step a landowner can take to protect his or her operation is to carry liability insurance.  Every landowner needs to have a liability insurance policy covering every activity taking place on the property.  For example, if a landowner has a farm and ranch policy for their cattle operation, but also conducts other activities like leasing the property for deer or bird hunting, the landowner should consult with their insurance agent to confirm the additional activities are covered. 

The amount of insurance coverage depends on the activity happening on the property and the location.  Landowners should consider the amount of risk associated with their operation.  For example, a farm in northwest Texas (middle of nowhere) that does not host any sort of events or have any guests would likely need a lower coverage amount than a rancher in East Texas just North of Houston (populated area) that leases day hunts for deer or birds.  Talking through the details of an operation with an insurance agent will allow a landowner to determine the right coverage level.  You should also discuss the endorsements and exclusions that may be contained in your liability policy.

Identify Dangerous Conditions On the Land

As I pointed out in my earlier column, Landowner Liability, a landowner owes certain duties to a person on his or her property.  Although a landowner is only required to conduct a reasonable inspection and make safe or warn of dangerous conditions for a guest, doing so for all persons may help to avoid an injury altogether.  Landowners should think about their properties and seek to identify any potentially dangerous conditions. Once these conditions have been identified, landowners should take care to warn guests about them or to make them safe. 

Obtain Written Liability Waivers

Liability waivers or releases, are simply documents signed by guests agreeing that they will not hold a landowner liable for injuries that occur on the property.  Texas courts will generally enforce this type of waiver if drafted in a manner complying with Texas law. 

Texas courts require liability waivers to be conspicuous and to comply with the express negligence doctrine.  These requirements are in place in order to ensure a person signing a waiver has fair notice and understands what he or she is agreeing to. 

The language required in liability waivers must meet very specific requirements and therefore you should consult an attorney when drafting them.  Releases should identify the activity involved and common dangers.  Again, seeking the professional help from an attorney when drafting them is recommended. 

Consider Using a Business Entity Structure

Another way to limit potential liability exposure is to consider putting one’s land and/or assets into a business entity which offers limited liability.  This would include a corporation, limited liability company, limited partnership or trust.  These entities must be formed correctly and managed properly.  Many people try to form such entities themselves and/or manage them improperly.  Failing to do either correctly is fatal to the entity and the landowner would lose liability protection.  Factors such as ease of creation, complexity of management and tax liability should all be considered.  Therefore, this is another area to seek legal counsel and expertise.  When formed and managed properly, these entities can provide limited liability for a landowner if someone gets injured on property owned by the entity. 

Does a Limited Libabilty Statute Apply

Texas has three limited liability statutes:  Recreational Use Statute, Texas Agritourism Statute and the Texas Farm Animal Liability Act.  These statutes may apply depending on the activities the landowner is conducting on his or her property.  However, each statute has its own specific requirements.  For example, are fees charged, do the property taxes paid exceed the fees, adequate insurance coverage, and are signs required to be posted?  Therefore the landowner must familiarize himself or herself with each statute’s requirements and consult with an attorney. 

All landowners should be aware of the potential risk of liability if someone is injured on their property.  A personal injury lawsuit can be difficult, time consuming, and expensive to defend.  However, there are a number of steps that can be taken in order to prevent injuries from occurring in the first place and to limit potential exposure in the event one does occur.  Consulting an attorney familiar with real estate and business entity law to help you in this area is very important. 

The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. 

www.moakandmoak.com

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A common concern for any Texas landowner is when they may be held liable if someone is injured on their property.  Landowners often ask, “What can I do to protect myself in the event this occurs?”  It is important for landowners to understand the duty the law imposes on them for each person entering their land.  Additionally, there are a number of steps landowners can take in order to protect themselves and their operations from liability.  This week I will deal with a look at the most common legal claims.  

When someone is injured on another’s land, he or she has two potential legal causes of action—a negligent act claim or a premises liability claim.  The two claims each have a separate applicable legal framework.  Thus, the threshold issue is to determine which of these two claims the case falls under. 

Negligence:

A negligent act occurs when there is an “ongoing activity” that leads to the person’s injury.  For example, a person was injured when a box being moved by employees was dropped on the person’s head.  In this example, because the person was injured by an ongoing act – the moving of the box – it was a negligent act case.  

In order to prevail in a negligent act case, a party/plaintiff must prove the following elements: (1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) the defendant’s action caused the plaintiff’s injury, and (4) the plaintiff suffered damage.  This is the analysis in a common negligence case, such as a car accident.  In a negligent act case, the plaintiff must prove the defendant acted unreasonably under the circumstances and such action caused the plaintiff’s injury.  Negligence is one of the more common legal claims and can be made in a variety of different circumstances, including a negligent act, a car accident, or pesticide drift. Regardless of the factual circumstances, every negligence case is analyzed utilizing these elements.  

Premises liability:

A premises liability case arises when a plaintiff is injured by a condition on the land, as opposed to an ongoing activity.  Most people have heard of “slip and fall” cases, but I will describe one as an example.  Suppose a grocery store sprayed a substance on the plants in the store.  A person who comes along and falls in that location.  The plaintiff would try to prove that they were injured not by  the ongoing activity of spraying, but rather the condition created after the spraying, wetting the floor, and, as a result of this condition, they slipped and fell.  

It is more difficult to prove the elements of a premises liability claim than a negligent act claim.  For a premises liability claim, an injured party must prove the following elements: (1) the defendant had actual or constructive knowledge of some condition on the premises; (2) the condition posed an unreasonable risk of harm; (3) the defendant did not exercise reasonable care to reduce or eliminate the risk; and (4) the defendant’s failure proximately caused the plaintiff’s injury.  

Note that Texas law divides people into three different categories for the purposes of knowledge of the condition.  They are: (1) trespasser; (2) licensee; and (3) invitee.  A different standard of duties is owed to each of the above with regards to having knowledge of the condition.  Thus, anytime someone is injured on the land of another, it is important to determine which of these categories the injured party belongs to.   My intent this week was to make property owners aware of their liabilities when owning property.  In next week’s column, I will attempt to explain the steps a landowner can take for liability protection.  For more details on what duties you may have as a landowner, please contact an attorney familiar with real estate.  This way you can take steps to protect yourself and your operations from this liability.  

The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. www.moakandmoak.com

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This situation reminded me of the importance of knowing the coverage your homeowners policy provides and the importance of business premises insurance. Reading and understanding all of the language in a homeowner’s or business liability insurance policy are not formalities to be skipped over while searching for the signature line. As with any contract, the fine print can have real and lasting consequences, and its contents will control over any contradictory verbal assurances. Taking the time to understand the terms of their policies might have headed off bad outcomes for homeowners in two recent cases.

Joan bought property consisting of a home, two barns, and other outbuildings. She also purchased a homeowners’ insurance policy that excluded coverage for any nondwelling structure that was rented out “unless used solely as a private garage.” Joan rented the barns to a commercial marina, which used them for storage of customers’ boats. When one of the barns collapsed due to a storm, Joan submitted a claim for loss of the barn.

The insurer denied coverage, prompting Joan to point out that the rental exclusion should not apply because the marina was using the barn as a “private garage.” Her point made sense as far as it went, but the insurer won because of a separate exclusion from coverage for any nondwelling “used in whole or in part for business purposes.” Joan’s main occupation was a financial analyst, and she brought in only a few thousand dollars by renting out the barn. But all that was necessary for the business purposes exclusion to apply was that the insured regularly engage in the conduct with an intent to profit.

It was significant for the court that, by failing to disclose her conduct, Joan had prevented the insurer from knowing the risks it was insuring. The purpose of a business pursuits exclusion, after all, is to rule out coverage for a whole set of risks and liabilities flowing from business activity. It did not matter that the damage to the barn was not caused by the boats that were stored there for profit.

At the heart of another dispute over homeowners’ insurance coverage was what turned out to be an erroneous assumption by the homeowners that “residents of your household” meant any persons living on the same parcel of land, even if in a different house. In this case Ken and June lived in a home. Their daughter, son-in-law and 10-year-old grandson lived rent-free in another house that was only 20 feet away and had the same mailing address. The close-knit family often shared meals and activities, and Ken and June regularly cared for their grandson.

When the grandson accidentally shot a playmate with a rifle, Ken and June submitted a claim under their homeowners’ policy, which covered “residents of your household who are your relatives.” The insurance company succeeded in arguing that it had no obligation to defend the grandson in a suit for his friend’s injuries because he was not a resident of Ken’s and June’s household.

In legal terminology, a “household” is a collection of persons living together as a unit under one roof or within a single “curtilage.” “Curtilage” is a technical term for the area next to a house that is inside the same enclosure, is used for the intimate activities of the house, and is protected from observation by passers-by. The house where the grandson lived did not meet any of these criteria so as to make the grandson part of Ken’s and June’s “household.” The four individuals in this case probably constituted a household in many respects and for many purposes, but not in the context of interpreting the homeowner’s insurance policy.

Sitting down with your insurance agent to discuss making sure you have the coverage you believe you are buying is vital. When entering a contract, particularly one prepared or furnished by another, it is a good idea to review the document carefully. A better practice would be to have your attorney review the document for you. Do not put yourself in the position of reviewing your contract after a problem or claim has arisen. It may be too late.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. www.moakandmoak.com

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Well, here we are in the middle of what may be the greatest voter turnout in history. It is exciting to see. For the next 2 weeks you can early vote in the 2020 election and Tuesday, November 3 will be the official election day. However, experts predict most of the ballets will have already been cast. But you will not be a part of this event unless you vote. Most have made up their minds on the national level, but there are state and local elections that you should research before casting your vote.

I stood in line on the first day of early voting to cast my ballet and experienced something I had not before, a person cutting in line to vote. A very nice gentleman behind me too exception to this person cutting after we had been waiting 40 minutes for the polls to open. I commend him for speaking out and reporting this act to the election officials and as a result, the person cutting had to go to the end of the line. I urge you to be respectful and civil when you exercise your right to vote. Considering the extreme sacrifices our ancestors endured to obtain and protect this right, it baffles me when voters misbehave and voter turn out is so low.

So again, to underline the importance of voting, this week I thought I would provide some of the most famous events in the voting history of the United States.

• The passage of the U.S. Constitution in 1787 gave white male property owners age 21 and over the right to vote.

• A Series of acts from 1807 through 1843 changed voting requirements so that all white men 21 and older could vote.

• The 15th Amendment, passed in 1870, guaranteed the right to vote to all men that were 21 or older regardless of race or ethnic background.

• The 19th Amendment, passed in 1920, gave women age 21 and older the right to vote.

• The 24th Amendment, passed in 1964, made it illegal for states to charge poll tax to voters.

• The Voting Rights Act authorized the federal government to take over registration of voters in areas where state officials had regularly prevented blacks and other minorities from registering to vote or cast their ballots through usage of literacy tests, grandfather clauses, and intimidation tactics. This Act enforced provisions previously guaranteed in the 13th, 14th, and 15th Amendments of almost a century earlier.

• The 26th Amendment, passed in 1971, lowered the voting age across the nation to 18.

• The Voting Rights Act Amendments of 1982 extended right to vote guarantees given in the 1965 legislation. Further provisions for Americans with disabilities, voters not able to read and write, and those not fluent in English were added to insure their freedoms.

• The National Voter Registration Act (Motor Voter) of 1993 expanded the opportunity for convenient voter registration for every person of voting age by increasing the number of active government agencies serving as registries. The departments of Safety, Health, Human Services, Mental Health and Retardation, and Veteran’s Affairs are required to include voter registration applications with their own department’s forms. Other government offices such as libraries, post offices, county clerk offices, and the Registrar of Deeds will also have voter forms available to the public.

According to a study done by Dr. Michael McDonald, Department of Public and International Affairs at George Mason University on voter turnout, 28% of the eligible voters in Texas actually voted in our 2008 Presidential Primary. This was up from 2000 (11%) and 2004 (15%). However, I still feel this low turnout is very sad.

Many times I am given the excuse “one vote does not matter.” So I thought I would provide you with some examples of where one vote did matter.

• In 1645, one vote gave Oliver Cromwell control of England.

• In 1776, one vote gave America the English language instead of German.

• In 1868, one vote saved President Andrew Jackson from impeachment.

• In 1875, One vote changed France from a monarchy to a republic.

• In 1876, one vote gave Rutherford B. Hayes the Presidency of the United States of America.

• In 1923, one vote gave Adolf Hitler leadership of the Nazi Party.

• In 1941, one vote saved the Selective Service – just weeks before Pearl Harbor was attacked.

• In 1990, one vote decided a state House race in Oakland County, Michigan.

• In 2008 the first African American was elected President of the United States.

• In 2016, in what many thought was an upset, Donald J. Trump was elected President of the United States.

In his Gettysburg Address, Abraham Lincoln said: “It is rather for us to be here dedicated to the great task remaining before us — that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion — that we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.”
For the next few weeks or certainly Tuesday, November 3, take advantage of your right to vote. No matter who your personal choice is, the key is that you exercise this right paid for so dearly by our ancestors. So, be a part of history, VOTE!

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. www.moakandmoak.com

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Fortunately, Texas now allows Irrevocable Trusts to be amended, even without court involvement. “Decanting” and “nonjudicial reformation” are legally acceptable ways to amend provisions without court approval that otherwise would be set in stone. Typically, you need the consent of the Grantor, Trustees, and beneficiaries to comply with state law.

The dilemma is whether these changes could jeopardize the estate tax advantages the client desired and obtained at the creation of the Trust. The good estate tax news is that the IRS has issued a number of Private Letter Rulings that indicate estate and generation skipping tax advantages will still apply even if an Irrevocable Trust is modified. Of course, the devil is in the details, in determining what types of changes are appropriate and the method in which the changes can be done under state law. But at least in the estate tax world, what is irrevocable may be irrevocable only in part.

While a trust is appropriate for some people, the cost of creating, funding and administering a trust outweighs the benefits for many people. The real question is whether the anticipated reduction in future probate costs will be offset by the immediate cost of creating, funding and administering the trust during the remainder of the person’s lifetime. In some limited instances, such as owning property out of state, true tax savings (unnecessary unless you have more than $10.6 million) or a person’s inability to manage their assets, a trust is warranted. But, it is important to decide what your needs are before creating a trust.
If you find yourself with a living trust or irrevocable trust, it is a good idea to have it reviewed periodically to make sure it still meets your goals. If you are not sure whether the trust has been properly funded or maintained or perhaps if it is an irrevocable trust and you want to make changes, then you should defiantly seek an attorney who is trained and familiar with estate planning and probate. The advice they provide will assist you in making sure your plan meets your goals.
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Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

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The following is a rendition of the Herman Oberwies Will:
“I am writing of my will mineself that dam lawyir want he should have too much money, he ask too many answers about the family. First thing I want I don’t want mine brother Oscar get a G D thing I got. He is a mumser he done me out of forty dollars fourteen years since.

I want it that mine sister hilda get the North Sixtie Akers of at where I am homing it now, I bet she don’t get that gonoph husband of hers to brake twenty akers next plowing. She can’t have it if she lets Oscar live on it, I want I should have it back if she does.

Tell Mamma that six hundret dollars she been looking for ten years is buried from the backhouse behind about ten feet down. She better let little Frederich do the digging and count it when he come up.

Pastor Luchnitz can have three hundret dollars if he kisses the book he won’t preach no more dumhead talk about politiks, He should a roof put on the meeting house with and the elders should the bills look at.

Mamma should the rest get, but I want it so mine brother Adolph should tell here what not she should do so no more slick irishers sell her vakom cleaners. They noise like hell and a broom don’t cost so much.

I want it that mine brother Adolph be my execter and I want it that the judge please make Adolph plenty bond put up and watch him like hell. Adolph is a good bisness man but only a dumkopf would trust him with a busted pfennig.
I want dam sure that schliemiel Oscar don’t nothing get, tell Adolph he can have a hundret dollars if he proves judge, Oscar don’t nothing get. That dam sure fix Oscar.
Signed: Herman Oberweiss”

Probating Mr. Oberweiss’ “will”, unfortunately, was difficult if not impossible because it has several problems.
To be a valid Will in Texas a Will must show testamentary intent. However, Mr. Oberweiss states in paragraph two of his Will that “if she lets Oscar live on it, I want I should have it back if she does.” This seems to indicate Mr. Oberweiss would still be alive.

Texas law also requires two witnesses subscribe their names to the Will in the testator’s presence. Mr. Oberweiss’ Will lacks the signature of any witnesses.

Another problem area for Mr. Oberweiss is his failure to adequately identify his heirs. Who are “Oscar”, “hilda”, “Mamma”, “Little Frederich” and “Adolph?” They appear to be family but we do not have their last names and so identifying them is difficult. For example, while Mr. Oberweiss is familiar with who “Mamma” is, we do not know from the Will. Several “Mammas” could appear claiming to be the one referred to in the Will.

Mr. Oberweiss would like “Mamma” to get at least six hundred dollars, that she has been trying to find for ten years, however, we do not have an adequate description of where the money really is. It is apparently buried behind what Mr. Oberweiss calls the “backhouse,” but where is the backhouse ?

Further, it is Mr. Oberweiss’ desire “helda” get the “North Sixtie Akers.” How do we know where the “North Sixtie Akers” is? Apparently it is where he was “homing” at the time he wrote the Will. But what does “homing” mean? Where he lived is a good guess, but we really do not know that is what he meant. What if Mr. Oberweiss was no longer “homing” the property he refers to when he died? What then ?

It is clear Mr. Oberweiss belonged to a congregation led by a “pastor.” While several denominations use this term, Mr. Oberweiss was obviously German and therefore would have probably been Lutheran or, possibly, Roman Catholic. But would a member of either denomination (or several others who use the term “pastor”) have referred to his church as a “meeting house?” Neither Lutherans nor Roman Catholics have “elders” at the congregational level. Presbyterians do, and, on occasion, a Presbyterian minister is addressed as “pastor.” But “meeting house?” The term is commonly associated with the Society of Friends, who have no “pastors.” Even more to the point, however – Mr. Oberweiss had a “pastor” and therefore could hardly have been Jewish. Yet don’t you wonder why a well to do farmer of German descent, living in East Texas, would use Yiddish words of execration is speaking of Oscar and Hilda’s husband?

I must confess Herman Oberweiss, nor his family, really exist. He was the creation of Will Sears. Mr. Sears was an attorney in Houston who created Herman Oberweiss’ Will for a Law School Banquet. Mr. Sears passed away in December of 1990. This was one of my father’s favorite articles, so thinking of him recently, I decided to publish it again.

While Herman Oberweiss does not exist, this Will does afford me the opportunity to caution you on the hazards of writing your own Will using a form from the Internet or Do-It-Yourself Will kit. You may save a few dollars, as did Herman, but in the long run the goal of a Will is to make sure your last wishes are accomplished. Hiring an attorney to write your Will can help you ensure that the technical formalities of Texas law are followed and that your gifts are clear and easily understood. While a professionally prepared Will may not make all of the deceased loved one’s family members happy, it will help insure that the true wishes of the decedent are carried out. THAT will damn sure fix Oscar.
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Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. www.moakandmoak.com.

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If a person makes a Will when he does not have the mental capacity to make a Will or when he is so dominated by another that he can’t make the Will that he wants to make, a Will contest often results. A Will is contested because the contestant believes that the Will does not represent the true intent of the testator to pass his estate to the people that are the natural objects of his bounty.

A Will must be written, in the correct form and executed according to the law to be valid. Most of the cases dealing with improper form or execution of a Will involve documents that were prepared by individuals instead of attorneys. A person may type out a Will on their computer, download a form from the Internet or copy a form from a book. Since the law is very strict about the form and execution of Wills, many of these documents are set aside because of mistakes in the form or because of improper execution.

In order to make a Will, the testator must have testamentary capacity. That means that he/she must know what they are doing and what their estate consists of, and who the natural recipients of the estate would be. Additionally, the testator must not have been the subject of undue influence. This means that the person making the Will was so controlled and dominated by another, that he/she couldn’t make his/her Will they way they wanted.

When your inevitable day comes, your surviving loved ones will grieve for you. Each of them will deal with the loss of you in their own unique way. There will be days, months and years often filled with emotion and conflicts among and between your surviving loved ones. Unfortunately, this can often lead to family battles over personal belongings and other similar inheritance conflicts. Any planning that can be implemented today to alleviate such pain to your surviving loved ones must be considered by you.

Greed and pettiness appear at first blush to be the cause of most inheritance conflicts. However, a closer examination of inheritance conflicts reveals that they are actually signs of the survivors’ deep desire to feel connected and important to you. Studies have found that the battles for dad’s watch or mom’s wedding ring are not just about the material items, but rather what these items symbolize to surviving loved ones, i.e., how important they were to you and how much you loved them.
When families fight about inheritance, money and greed are rarely the cause of the conflict. Most of the time, the source of the conflict can be traced back for years, even back to childhood. As an elder in your family, you probably already know what conflicts exist among your loved ones. The last thing that you would ever want to leave for your surviving loved ones is additional fuel for any existing ongoing conflicts.

Unless you elect to be proactive, upon your death your loved ones could be entrenched in a long inheritance conflict lasting for years and costing thousands of dollars. However, with careful planning, you can avoid the inheritance conflicts among your loved ones. After all, the reason why you plan for your death is not for you, but for those whom you love the most.
The hearing I witnessed my classmate handle was just a preliminary hearing on discovery and it took over 3 hours. The matter had already been filed, unsuccessfully, in 3 other courts. All this to say, the family had spent a great deal of money on legal expenses with no resolution in sight, which may have been avoided had the testator hired an attorney to assist with writing the Will. There is no form, no internet document, and no water cooler advice, that can replace the skill and knowledge of an experienced attorney in avoiding contest. While there are some issues you can’t avoid, you can draft and execute a Will in such a manner as to deter fights once you are gone. An ounce of prevention would save tens of thousands of dollars.

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Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. www.moakandmoak.com

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