To avoid such fights, conversations should be started early.  Either the older or the younger generation may initiate this talk, but the idea is to get an idea of who wants what.  To assist in this you should make an inventory of your possessions to discuss with your attorney.  Share the list with family members.

It is also a good idea to have your property appraised.  You can use the local appraisal district’s valuation for real estate, but understand it may not be accurate.  Personal property items, other than automobiles, may be difficult to assign values to, so seek help.  If there is a great disparity in value of items, then you might consider selling them.  Cash is always easier to divide among heirs.

You know your family better than anyone else.  If you know they do not see eye to eye, do not rely on them being able to work together to divide assets.  You will have to divide them or give your executor the ability to do so.  However, please make every effort not to burden your executor with refereeing family disputes.

You might consider including a list of personal property in your Will.  However, be aware your Will becomes a public record and the whole world will be able to see the list.  Talk to your attorney about alternatives to listing items in your Will.

The best way to avoid a fight or conflict is through careful planning, done way ahead of time.  Do not put off until tomorrow what needs to be done today.  Seek the guidance and advice of an attorney who handles estate planning.  There is a good chance he or she will have experience with “sticky” matters and how to best avoid them.

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Of course, Texas is also home to many people who’ve crossed the national border, traveling from abroad and making the Lone Star State their new home. The same goes for these proud ex-patriots: you need to take a long, hard look at your existing estate plans in a new jurisdiction.

The Wall Street Journal recently featured one American family’s struggle after their father was killed in a terrorist attack while living in Israel. Estate planning emerged as one of their chief concerns. To that end, the Journal shares the following advice:

Estate planning done in one country isn’t always recognized in another.

Even if the plan is recognized, it might be interpreted or executed differently than expected.

Make sure your healthcare directives and powers of attorney comply with both U.S. federal regulations and the laws of Texas.

Be sure you understand the tax liabilities that might apply in each country (and know which countries will take priority).

Never assume the validity of any of your documents or provisions after a move. Confirm with a professional instead.

Your Will should be reviewed periodically and the appropriate adjustments made.  Some other factors to consider that make dictate reviewing your Will and estate plan:

• Events that automatically revoke a Will: In most states certain actions on your part automatically revoke your Will.  The specific actions vary from state to state.  Examples may include marriage and the birth or adoption of a child.  Other actions, such as divorce, can cause property left to a former spouse to pass as though your former spouse predeceased you, which may or may not be what you intended.  With every major life change, you should review your Will and consult your local attorney to see if a new Will or other changes are required.

• Marriage, divorce or death of a spouse: Marriage brings about legal relationships that can revoke or conflict with the terms of a Will made prior to the marriage.  The end of a marriage requires a fresh look at your Will and, most likely, will lead you to designate different beneficiaries.

• Birth or adoption of a child: Although some states may automatically revoke your Will at the birth or adoption of a child, others may have laws that offer safeguards for children born after your Will was made.  You’ll want to make sure that your Will reflects your wishes for how your property is distributed among your offspring.  On the subject of offspring; you may also want to revise your Will when the grandchildren come along.

• Changed status of a beneficiary:  Children grow up and get married (or divorced).  A child or other beneficiary may become sick or disabled or may die.  Events in the lives of your loved ones can have an impact on what you want to leave your beneficiaries and how you leave it.

• Changes in your assets or asset value: Over the years your wealth is likely to increase.  You may have acquired assets (i.e., an investment portfolio, a business, valuable collectibles) that you did not have when you made your Will.  You may have sold an asset for which you named a beneficiary when you originally made your Will. In other words, your personal financial picture is constantly changing, and your Will should be updated accordingly.

• Retirement: Major changes in your life and your financial holdings occur at retirement.  You may receive a lump sum distribution from a company retirement plan, sell the family home and move to a smaller residence.  Put Will review on your retirement planning checklist.

• Changed tax laws: Income, inheritance, estate, gift and generation skipping tax rules are revamped regularly.  Failure to make the appropriate adjustments to your Will may mean missing tax saving opportunities.

If you are new to Texas, or even if you’ve been here a while but haven’t dusted off your Wills and trusts since relocating, hiring an attorney to review and revise your estate planning documents can help you ensure that the technical formalities of Texas law are followed and that your gifts are clear and easily understood.  Spending a few dollars now will save your family and loved ones from spending more later.  Not to mention the confusion and grief  that will be avoided.

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If the decedent had a Will it should name an individual to carry out the duties of administering the estate.  The individual named in the Will to carry out the administration is called an executor.  If the Will does not name an executor, then the court will appoint one.  If the court appoints such a person because the Will does not name an executor or the decedent died without a Will, that person is called an administrator.  Either way, the executor or administrator has to be approved by the court and has legal obligations and duties to the court and those who receive property from the estate.  If the executor or administrator acts improperly, he or she may be held liable for any resulting damages and his or her appointment may be terminated by the court.

In Texas, there are several different methods of administering an estate.  Texas is one of the states that provides for independent administration.  This is administration free of court supervision.  This means that after an independent executor or administrator is approved and an inventory of the estate assets is filed with the court, the executor or administrator can simply take care of the administration of the estate without any further court involvement or supervision.

If there is no need for the appointment of an executor or administrator and the only reason for probating a Will is to clear title to property, a Will can be admitted to probate as a muniment of title.  Under this procedure, there is no executor or administrator appointed.  It is a somewhat simplified method of administering an estate than the traditional formal administration.  This is not for all estates due to certain requirements, therefore you should contact your attorney to see if your situation applies.

If the value of the estate, excluding the homestead, exempt personal property, and non-probate assets, does not exceed $75,000.00, no formal administration is necessary if the heirs file an affidavit with the court showing they are entitled to receive the property of the estate.  In addition to the $75,000.00 ceiling, the small estate affidavit procedure is available only if the assets of the estate, excluding the homestead and exempt personal property, exceed the known liabilities of the estate.  One limitation on the small estate affidavit is its general ineffectiveness to transfer title to real property.  The small estate affidavit is effective to transfer title to a homestead if the homestead is the only real property in the estate.  However, if the estate contains any real property other than just the homestead, the affidavit will not clear tile to any of the real property, including the homestead.

Informal family settlements is another option.  They are permissible where the estate is small and consists only of personal property, such as personal effects and household furnishings, but generally not where the estate includes bank accounts, stocks, and bonds.  If a motor vehicle is involved, a new certificate of title may be applied for by filing an affidavit of heirship with the Texas Department of Public Safety.

A common mistake is that when one spouse dies, the surviving spouse does not have to file anything with the courthouse.  This is not the law in Texas.  Texas offers many different ways to probate or transfer an estate’s assets and therefore you should contact an estate planning and probate attorney for assistance on what route may be best in your particular situation.

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In this week’s Column, I will provide 3 tips for caring for a loved one with Alzheimer’s.

Create a Safe Environment for your loved one with Alzheimer’s

During the early stages of Alzheimer’s disease, your loved one may be able to continue living on their own. Even then, it’s important to keep a very close watch on them and be aware of when that begins to change.

As Alzheimer’s progresses, you should take precautions around the home to keep your loved one safe from falls. You may need to remove obstacles around the home and install ramps to make it easier for the elderly person to get around.

You may also want to install locks on substances like alcohol and things like guns that can be dangerous to your loved one. Think about fire safety as well.

Hot water is another potential danger. As Alzheimer’s progresses, you may need to lower the thermostat so that the water cannot get as hot and potentially burn the senior.

Keep Frustration to a Minimum

When your loved one is diagnosed with Alzheimer’s disease, this is often coupled with a lot of frustration. A person with Alzheimer’s disease can experience frustration with forgetting to do things they were once able to do. They experience frustration because they struggle to follow and understand tasks and communication.

Frustration can also come from loss of independence. It is important to recognize these frustrations and take steps to reduce the frustration.

Provide your loved one with choices whenever possible. Allow your loved one to help with tasks they are capable of, even if it takes them longer that it may take you, or longer than they were able to do it before their diagnosis. Make directions and requests simple.

When your loved one needs to focus, eliminate distractions. Create a calm environment. Be patient with your loved one and take time to allow them to do tasks.

Work at Communication with your loved one with Alzheimer’s

Communication often becomes difficult when an elderly loved one has Alzheimer’s disease. This is an area that takes patience. When communicating with your loved one, they may get discouraged if they can’t understand you or you can’t understand them. Always maintain eye contact with your loved one when communicating. Keep communication simple and to the point, but positive.

When your loved one is attempting to communicate with you, be sure to allow them to talk. Be careful not to interrupt or try to complete their sentences. This can add more frustration. Keep conversations going with your loved one as long as possible by encouraging them and truly listening to concerns.

Use physical touch, such as holding a hand or touching a shoulder, to communicate with your loved one. Don’t take outbursts personally. The illness causes you loved one to do and say things they may not normally do or say. Always be aware of your tone and keep it kind.

Alzheimer’s is a disease with many varying characteristics.  It can wreak havoc on the person our loved one once was.  Caring for a loved one with Alzheimer’s can be frustrating and difficult.  However, patience is the overarching quality that a caregiver must possess to deal with an elderly person with Alzheimer’s disease in a loving and positive manner.

Consulting with professionals who understand the Elder Law and diseases like Alzheimer’s and Dementia will provide peace of mind, knowing that are developing the best plan possible to provide for your loved one’s care.

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Each state has its own laws regarding estate planning and real estate. Property laws can vary significantly, affecting everything from the way property titles are held to how estates are taxed and probated. Therefore, the first step in planning your estate is to understand the specific laws that apply in each state where you own property. This may require consultation with estate planning attorneys who are licensed in each respective state to ensure all local regulations are met.

One of the primary challenges of owning property in multiple states is the possibility of having to go through multiple probate processes upon death. Probate can be time-consuming and expensive, particularly if it needs to be conducted in several states. To circumvent this, many estate planners recommend placing the out-of-state property in an limited liability company or perhaps a revocable living trust.

While Texas does not have an estate tax, if you own property in multiple states, you might be subject to estate taxes in each of those states, depending on their laws. Some states have higher estate tax thresholds than others, and a few have no estate taxes at all. Planning strategies might include shifting your domicile to a state with more favorable tax laws or restructuring ownership of properties to minimize the tax burden.

It’s also important to consider the impact of capital gains taxes and how they interact with estate taxes. In some cases, keeping property in the family can lead to significant tax advantages over selling it before death. An estate planning attorney can provide guidance on how to best manage these tax implications.

Organize and maintain detailed records for each property, including deeds, mortgage documents, insurance policies, and a list of all maintenance activities. This documentation will be invaluable for the executor of your estate or the trustee managing the trust.

As laws change and your personal circumstances evolve, so too should your estate plan. Regular reviews and updates will help ensure that your estate plan continues to reflect your wishes and adapts to any new laws or changes in your asset portfolio.

If your estate plan is complex, consider holding a family meeting to discuss your plans and the responsibilities each family member may have. This can help prevent confusion and conflict after your passing, ensuring everyone understands your intentions and the legal landscape.

Owing property in multiple states adds a layer of complexity to estate planning, but with careful preparation and expert advice, you can ensure that your estate is handled smoothly. Limited liability companies, trusts, strategic tax planning, and regular updates are key components of an effective multi-state estate strategy. Consulting with professionals who understand the nuances of multi-state estate planning will provide peace of mind, knowing that your legacy is secure and your wishes will be honored.

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Senate Bill 17

SB 17 is one of several measures introduced this session aimed at restricting certain types of foreign ownership of land in Texas. In its most recent version, which passed the House earlier this month, SB 17 would add a new Subchapter H to Chapter 5 of the Texas Property Code, titled “Purchase or Acquisition of Real Property by Certain Foreign Individuals or Entities.” The bill initially passed the Senate in March and has since been amended by the House. Notably, the House version expands the scope of the bill by granting the Governor authority to designate additional countries and transnational criminal organizations whose nationals or entities would be prohibited from acquiring real property in Texas.

Senate Bill 647

SB 647 is one of two bills introduced this session aimed at combating deed fraud. It proposes amendments to Section 51.901 of the Texas Government Code to enhance protections against the fraudulent filing of property-related documents. Specifically, the bill authorizes county clerks to send written notice to the last known property owner when a recorded instrument purports to create a lien or transfer an interest in real property—particularly when the owner’ s address differs from that of the grantor, obligor, or debtor named in the document. Additionally, SB 647 empowers clerks, upon consultation with the district or county attorney, to refuse to file or record a document if there is probable cause to believe it is fraudulent or if the filer fails to provide required supporting documentation as specified in the statute. The bill passed the Senate and was recently reported favorably out of a House committee.

Senate Bill 648

SB 648 is the second of two bills this session aimed at addressing deed fraud. The bill introduces enhanced recording requirements for certain real property instruments, particularly when such documents are filed by individuals or entities other than attorneys, title agents, title companies, or escrow companies that provide closing, settlement, or comparable transaction services. Under SB 648, if an instrument is submitted for recording by someone outside of these professional categories, the following additional requirements must be met: the instrument must be signed by both the grantor and the grantee in the presence of two subscribing witnesses, and all signatures—including those of the witnesses—must be acknowledged. The bill also imposes stricter requirements for filing affidavits of heirship. Specifically, if the affidavit is filed by someone other than an attorney or title-related professional, it must be signed by the affiant and acknowledged by each person named as an heir, again in the presence of two subscribing witnesses. SB 648 would take effect immediately upon receiving a two-thirds vote in both chambers. It has already met that threshold in the Senate and is currently under consideration in the House.

Senate Bill 2550

SB 2550 addresses five statutes that require sellers of real property to provide specific notices to buyers pertaining to the surface estate, which do not extend to the mineral estate or associated water rights. While current law exempts transactions involving the sale of mineral rights from these notice requirements, it does not provide a similar exemption for the sale of groundwater or surface water rights. SB 2550 corrects this inconsistency by extending the exemption to include transactions involving only groundwater or surface water rights. The bill has passed both chambers of the Legislature and was sent to the Governor for signature on May 13.

Once the 89^th Regular Session of the Texas Legislature ends, a comprehensive report will be prepared for all the changes made in this session.  To view the full text of these and other bills, please visit the Texas Legislature Online (TLO) website.

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To start, let’s basic difference between a Will and a Trust in simple terms, so you can get a basic idea of what’s out there.

Wills executed in Texas can be relatively easy to probate. If the will contains proper language appointing an “independent executor” and contains “self-proving affidavits” from 2 witnesses over the age of 14, then your estate should be in an out of probate in a jiffy. If you do not have a will, or it does not appoint an independent executor, or is not self-proving, in that event THE LAWYERS WILL GET ALL THE MONEY.

An independent executor need only make application to the court for admission of the Will to probate, and do an inventory and appraisement. If no debts or taxes are due, the estate may then be distributed to the devisees (devisee is a fancy lawyer word for “heir”). Technically heirs and devisees are different, but you will have to pay me to explain all that.   Another term is beneficiary (another fancy lawyer word for who benefits from the Will).  The benefit to not having debt is that only the beneficiaries see the inventory.

Thus, an estate driven by a Will does not require a great deal of management, allows the individual to maintain ownership of assets until death, can be simple, private and relatively inexpensive.

Generally, a trust is a legal instrument that transfers  title to designated property from the owner, called the settlor, donor or grantor (settlor), to a trustee, who holds the property for the beneficiaries of the trust.  The settlor can also serve as the trustee, thereby enhancing control over the trust during the life of the settlor.  In such a case, a successor trustee is usually named in case the grantor dies or is incapacitated.  Depending on the size or complexity of

the trust, the trustee, or cotrustee, might

be an institution, so as to bring more expertise to the position.

When utilizing a trust for your estate plan there are several considerations.  Once created, all property belonging to the settlor must be transferred into the trust.  This includes real estate, financial accounts, vehicles and any other property.  Over time, as property is sold and/or acquired, the trust must be utilized and the property placed in the trust name.

If you are seeking tax relief from the trust, then you will not be able to act as the trustee.  Additionally, you may not be able to amend the trust.  Many folks are not comfortable giving up control of their assets.

Another consideration are the homestead, disability or over 65 exemptions effecting your property.  In order to maintain these exemptions, the trust will need to contain specific language.  It may not be possible to maintain all these exemptions.

Trust are popular in many states because of different property and tax law.  However, what works in one state, may not be the best in your state (Texas).

There are many different types of trust and one might be appropriate in your plan, but there is lots of misconceptions about trust.

If you considering an estate plan, you should sit down with an attorney experienced in estate planning to assist you in making sure which estate plan is correct for your needs.  We have the experience and would be glad to help you in this regard.

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In Texas, water rights depend on whether the water is groundwater or surface water.

Generally, Texas law has held that groundwater belongs to the landowner. Groundwater is governed by the rule of capture, which grants landowners the right to capture the water beneath their property. The landowners do not own the water but have a right only to pump and capture whatever water is available, regardless of the effects of that pumping on neighboring wells.

Surface water, on the other hand, belongs to the state of Texas. It can be used by a landowner only with the state’s permission.

Groundwater

Water found below the earth’s surface in the crevices of soil and rocks is called percolating water or, more commonly, groundwater. Texas groundwater law is judge-made law, derived from the English common law rule of “absolute ownership.” Groundwater belongs to the owners of the land above it and may be used or sold as private property. Texas courts have adopted, and the legislature has not modified, the common law rule that a landowner has a right to take for use or sale all the water that he can capture from below his land.

Because of the seemingly absolute nature of this right, Texas water law has often been called the “law of the biggest pump.” Texas courts have consistently ruled that a landowner has a right to pump all the water that he can from beneath his land regardless of the effect on the wells of adjacent owners. The legal presumption in Texas is that all sources of groundwater are percolating waters as opposed to subterranean rivers. Consequently, the landowner is presumed to own underground water until it is conclusively shown that the source of supply is a subterranean river.

The law with respect to ownership of subterranean rivers is not settled in Texas. Both stream underflow and subterranean rivers have been expressly excluded from the definition of underground water in Section 52.001 of the Texas Water Code.

The practical effect of Texas groundwater law is that one landowner can dry up an adjoining landowner’s well and the landowner with the dry well is without a legal remedy. Texas courts have refused to adopt the American rule of “reasonable use” with respect to groundwater.

Winds of change are blowing with regard to groundwater.  The case of Cactus Water Services LLC v COG Operating LLC is now before the Texas Supreme Court.  At the root of the case is who owns produced water.  This case will determine whether or not produced water from oil and gas drilling belongs to the landowner.

Produced water is the water that is comes back up out of the well bore as the well is completed.  Produced water is highly concentrated with salt and chemicals from the fracking process, thus making it harmful to fresh groundwater supplies as well as fields and pastures used for agricultral production.

Produced water must be handled carefully to make sure it does not spread out on the surface and leach or migrate back into the ground.  That much salt on property will kill the grass for a long period of time.  Thus, produced water has been a 100% waste product and almost all of it has been traditionally, injected back into deep formations through injection wells.

Technological advances have transformed  produced water from a waste product into a potentially valuable resource.  Therefore, now we have disputes over ownership of this water.

The importance of Cactus Water Services LLC v COG Operating LLC is that the Texas Supreme Court (TSC) will now decide whether this produced water belongs to the landowner or the oil and gas company.  Over 14 briefs have been filed with the TSC from different entities.  Some on behalf of the oil and gas companies and some on behalf of the landowners.

You don’t have to wait and see how the TSC answers this issue.  You should be thinking ahead, particularly if you enter new oil and gas leases.  These leases should have provisions clearly addressing the ownership of produced water and any associated royalties.  Even if the TSC determines the oil and gas companies own the produced water, there is a way to contract in your oil and gas lease to ensure that you, the landowner, get a royalty and a revenue back.

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The inheritance rights of adopted children are protected when a parent dies without a Will.  Under the Texas Estates Code, an adopted child is treated the same as a natural born child.  Therefore, the adopted child can inherit from his or her adopted parents and vice versa.  The adopted child can also inherit from his or her natural parents, but the natural parents cannot inherit from the child if the child dies without a Will.  This is an important consideration today when often an adopted child seeks and discovers the identity of a natural parent and then establishes a relationship with that parent.

After-born or after-adopted children who are born to or adopted by a person after he or she executed a Will in which such children were not provided for or mentioned at all may inherit only under limited circumstances, so it is best to execute a new Will or a Codicil to the existing Will to provide for the after-born or after-adopted children.

A stepchild does not inherit from a stepparent who dies without a Will because he or she is not considered to be legally related to that stepparent.  This is unfortunate where the stepchild was raised by a natural parent and/or a stepparent.  However, a stepchild may inherit from a stepparent who dies without a Will in some circumstances such as if the stepchild were adopted or an oral or written agreement exist.

Half-blood children share the same natural mother or father but not the same two natural parents.  A half-blood child inherits only half as much as a whole blood child.  For example, if a decedent’s only heirs are a half-blood brother or sister and a whole blood brother or sister, the half-blood heir takes one-third of the estate and the whole blood heir takes two-thirds.

An illegitimate child can inherit from his or her natural mother and vice versa when either dies without a Will.  By contrast, the illegitimate child may not be able to inherit from the natural father or the father’s family members who die without a Will, except upon the occurrence of one of certain specified events: (1) the child is born under circumstances described in the Texas Family Code; (2) the child is adjudicated to be the child of the father by court decree as provided in the Texas Family Code; (3) was legally adopted by his father or (4) if the father executed an acknowledgment of paternity in accordance with the Texas Family Code.  This means that even if a father maintains ties with his illegitimate child, that child will not inherit from him if he dies without a Will, except under limited circumstances.

If you do find yourself in second marriage or any of the above situations, or think you may be, you should consult an attorney.  The Will or estate plan you prepared years ago may not fit the circumstances today.

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Recently, a client came in for assistance because they had sold property to another person by verbal agreement.  In Texas, the transfer of property must be by a written agreement and the description of the property must allow the property to be located on the ground.  My client’s verbal agreement was not valid, worse yet they tried to type something up on their own later that the buyer used to create a false document.  This created a bigger problem that will require a lawsuit to resolve.

A divorce is not something you want to tackle without competent legal advice.  You will find a plethora of  do-it-yourself divorce kits and a whole host of do-it-yourself forms available on the internet.  The problem is that many of these forms are too general, not Texas specific, incomplete, contain unnecessary clauses, or they are just wrong.

You will find that most judges do not like to handle do-it-yourself divorces.  Despite what you might think, this is not because they are out to make attorneys more money or because they are mean and hateful.  It is because judges know all too well the many pitfalls involved in divorce matters.  They are trying to help the do-it-yourselfers, and themselves, from future headaches and problems.

Legalzoom advertises itself as a cheaper alternative to an attorney.  Unfortunately, many people are lured by this promise of lower cost and do not seek the advice of a trained professional.  They believe the document created by LegalZoom will be just as effective as one created by an attorney.

I have reviewed many software programs and took a spin on LegalZoom.  While they look state specific, had I not been a Texas attorney who focuses on estate planning, I might have trusted that the site was providing me with accurate and current information.  Just a few glaring mistakes I found were:

LegalZoom’s advice with regards to Oral Wills.  LegalZoom would have you believe they are valid in Texas.  However, in September 2007, Texas repealed Sections 64 and 65 of the Probate Code, which authorized oral Wills.  In fact, under current Texas Law, oral Wills are ONLY valid if made before September 1, 2007 and in VERY limited circumstances.

Another mistake I found was with regard to providing for pets.  According to LegalZoom, Texas Law does not have provisions for taking care of your pets.  However, Section 112.037 of the Texas Property Code, enacted in January, 2006, does authorize pet trusts.

Almost every attorney I know who works with the formation of business entities has spent hours correcting DIY business formations.  Here is just a list of some of what we fix:

– Selecting the wrong entity

– Failing to complete all steps of formation

– Not correctly obtaining an EIN

– Picking a name that violates a third party’s trademark

– Failing to have a buy out agreement

– Failure to hold the Organizational Meeting or Annual Meetings

Without exception, all of these DIY providers have a disclaimer stating they are not acting as your attorney and their information should not be used as a substitute for the advice of an attorney.

If you are considering are selling or buying real estate, seeking a divorce, formation of a business entity or preparation of a Will, seek the assistance of an attorney.  They can best help you negotiate the minefield of problems that could arise later and the judge or your family will be most appreciative.

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