Gather Important Records:

           Death Certificate (can be provided to probate attorney after initial meeting)

           Social Security Card

           Driver’s License

           Marriage Certificate

           Birth Certificate

           Birth Certificates of Children

           Insurance Policies

           Business Documents and Agreements (consider if the business had a succession plan – this will be apart from the probate process)

           Auto Titles and Registration

           Deeds & Titles to other Property

           Bank Account Information

           Bank Safe Deposit Box Information (Who can access the box and where is the key?)

           Financial Account Information (stocks & bonds)

           Retirement Account Statements

           Tax Returns (last three years)

(Consider tax filing deadlines for the current year)

            Loan Documents & Debt Information

            VA Information (discharge papers & VA claim number)

            Digital Account Information (account information, passwords)

            Information regarding Intellectual Property Rights

            Social Media Account Information (access, information & legacy programs)

            Estate Planning Documents (powers of attorney end upon death)

It is important to consider if any of  the above Assets have Beneficiary Designations.

Locate the Will. There is no formal requirement to file a Will before death.  If you cannot locate the original Will, you should also check with the attorney who prepared the Will – sometimes Attorneys will maintain the original Will.  Other places to look for an original Will include the following: bank safe deposit boxes, safes, gun safes, safe rooms, fire proof boxes and the freezer.  A lot of estate planning & probate attorneys use blue ink to help us determine that the document is an original. Original documents also often have colored jackets.  You should also check with other advisors such as CPAs, tax preparers, financial advisors, and insurance agents.  As mentioned below, at times and in certain circumstances a copy of a Will may be admitted to probate. Consider that a few companies offer digital vaulting of important documents such as Wills.

Review the Will or Trust – read it.  In Texas, the Will needs to be signed by the testator and be witnessed by two individuals above the age of 14.  Don’t assume the Will is valid or invalid.  Don’t assume that because its old its invalid.  Don’t assume that because it was prepared by an online company that it’s valid.

Generally, the original Will is admitted to probate, meaning filed with the court and retained with the court file.  However, in certain circumstances, a copy of a Will can be probated. Note, Texas also recognizes the existence of a “Holographic Will” – this Will needs to be “entirely” in the handwriting of a testator and signed.  Just signing a typed document doesn’t count.  Once you locate the Will you should keep it safe because your probate attorney will need to review it at the initial meeting.  You will need a probate attorney.  You cannot represent yourself in a Texas probate.

Another tip is to keep beneficiaries informed. There is no formal requirement to make a Will public to the beneficiaries by “reading” a Will in Texas.  However, there is a requirement that the beneficiaries be furnished with a copy of the Will.  Your probate attorney will take care of that and other legal requirements.

As always, check with your attorney to decide which method of estate administration is right in your particular circumstance.  It could save you time and money.

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Annual Fee Payments and Information Updates:

Maintaining your business entity in Texas starts with ensuring all annual fee payments are up to date and that your company’s information accurately reflects any recent changes.  This process is not merely administrative but foundational to your business’s legal and operational health.  It involves a detailed review and potential update of addresses, management structures, or business operations.  This step is crucial as it lays the groundwork for legal compliance and smooth business functioning.  It requires careful attention to detail, a thorough understanding of state requirements, and a systematic approach to reviewing and updating records.  At a minimum, corporations and LLC’s (business entity/s) must hold and document one annual meeting of the Officers and one annual meeting of the shareholders/membership each year. Consider consulting professionals to ensure nothing is overlooked.

Managing the Governing Bylaws or Operating Agreement:

This is part of your annual meetings for officers and shareholder/members.  The Governing Bylaws or Operating Agreement of your business entity sets forth the rules and procedures for internal governance, including management structure and financial arrangements. Changes within your business entity, such as shifts in membership or management roles, necessitate updates to this agreement.  This step is about ensuring that the operating agreement remains an accurate, current reflection of how your business entity functions and is governed.  It’s a task that requires internal consensus, legal knowledge, and strategic foresight.  Properly maintaining this document ensures that all members understand their rights and responsibilities, helping to prevent conflicts and confusion.

Appointing a Registered Agent:

Selecting a reliable registered agent is a legal requirement in Texas and a critical step in maintaining your business entity.  This agent is your business’s official contact for all legal and state communications, including service of process and tax notifications.  The choice of a registered agent is strategic and significant, as they ensure that you receive important legal documents promptly and keep your business compliant with state laws.  For businesses with home offices outside Texas, many services provide a registered agent to meet this requirement.  This step is about securing a dependable intermediary between your business and the state, ensuring that you remain informed and responsive to legal matters.

Filing Business Privilege Tax Returns and Annual Reports:

Annually, your business entity must file Business Tax Returns by April 15th.  These documents are critical in providing a comprehensive overview of your financial and operational status, helping the state assess taxes and verify compliance.  This process requires a meticulous compilation of financial records, an understanding of your business activities over the past year, and often consultation with financial advisors to ensure accuracy and completeness.  It’s a step that underscores your business entity’s transparency and accountability, affecting your legal standing and financial health.  Late submissions can result in penalties, emphasizing the importance of timeliness and precision in this process.

This step goes beyond simply issuing payment; it involves a deep understanding of your financial obligations to the state, which can vary based on factors such as income and assets.  It requires careful financial review, planning, and budgeting to ensure all obligations are met fully and on time.  Misunderstandings or under payments can lead to penalties, making it crucial to allocate sufficient time and resources to this task.  This step is not just about financial compliance but about strategic financial management and planning for your business entity’s future.

Maintaining State Records:

Your business entity’s involves updating any changes in your business entity, such as modifications in ownership, address, or management.  This must be reflected in an updated report to the state.  This step is about ensuring that your business’s legal document accurately represents its current structure and operations.  It’s a task that requires a keen understanding of how structural changes impact your legal obligations and an attention to detail in documenting those changes.  Keeping this information current is essential for legal transparency and operational clarity.

Handling Licenses and Permits:

Depending on the nature of your business and its location, various licenses and permits are required to operate legally.  This step involves identifying, obtaining, and regularly renewing all necessary licenses and permits.  It’s a task that requires staying informed about local, state, and federal regulations and understanding how they apply to your business activities.  Regular reviews and renewals are necessary to avoid lapses that could lead to legal troubles or business interruptions.  This step is critical in maintaining the legality and integrity of your business operations.

Registering a Business Entity with a Doing Business As Form:

If your business operates under a name different from its legal name, registering a ‘Doing Business As’ (DBA) name is necessary.  This step allows your business the flexibility to engage in the market under a name that best suits your brand or operational focus. It involves understanding the state’s requirements for DBA registration and maintaining this registration as needed.  While it doesn’t change the legal structure of your business entity, it’s an important aspect of your business’s public identity and marketing strategy.  Proper management of your DBA ensures that your business can operate and be recognized under its preferred name.

Navigating the complexities of maintaining an corporation or LLC in Texas can be challenging.  Seeking professional consultation is a crucial step in this process.  Whether it’s legal advisors, financial experts, or business consultants, professional guidance can provide clarity, ensure compliance, and offer strategic insights for your business’s growth and stability.  This step involves identifying the areas where professional advice is needed, selecting the right experts, and integrating their recommendations into your business practices.  It’s an investment in your business entity’s compliance, stability, and future success.  Leveraging expertise helps you navigate complexities and make informed decisions, ensuring that each step in maintaining your business entity is well-informed and strategically sound.

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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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I have address this topic several times in the past, but it is a continuing problem and one of my personal pet peeves.  While in the past, many trust salesmen used the offer of a free meal to discuss a LIVING TRUST SEMINAR, today the preferred method is social media.  So, I continue my battle against these Snake Oil Salesman.

The Promises of a Revocable Living Trust

The promise is that a revocable living trust is the end all be all for transferring your assets.  However, the presentation amounts to a scare tactic to talk folks into buying their product, a living trust.

However, these ads are just another clever marketing ploy to attract senior investors and the product they are selling is useless, costly and quite frankly, a pain in the rear to maintain.   This large segment of our society is often invited to “seminars,”  “free lunches” or social media ads for the senior investor.  But remember the wise old saying,  “There is no such thing as a free lunch.”

Offers to Entice

“Free educational seminars” are often offered by some group (as this upcoming one is, from out of state or backed by an out of state company) promising to show those over 55 how to avoid probate, avoid the high cost of probate,  reduce or eliminate taxes (cut the IRS out of your Will), protect your privacy and promoting the need for a living trust.  Some offer unnecessary partnerships, limited partnerships, “family” partnerships, and limited liability companies.

State Bar of Texas Advisory

The State Bar of Texas has issued an advisory opinion regarding advertising and promoting living trusts for attorneys.  Attorneys are not supposed to advocate a living trust over a Will or vice-versa.  They should give you the pros and cons of both documents.  However, these con artists are not bound by any such rules.

It’s easy enough to become a victim.  Living trust sales are a growing area of consumer fraud.  Con artists make millions of dollars every year selling unnecessary trusts.  Each year, thousands of consumers lose from $500.00 to $5,000.00 through the purchase of living trusts.  Often, families face potentially greater costs after the consumer’s death, resulting from problems associated with the trusts.

What You Can Do To Protect Yourself

It is very difficult to get your money back if you are cheated in a living trust scam.  So before you buy, and better yet, before you allow a salesperson in your home, remember:

1. Take time when making your decision.  Do not fall victim to high-pressure “act immediately” sales tactics.  Avoid buying on impulse.

2. Never respond to an offer you don’t thoroughly understand.  Legitimate advisors understand when you want more information about their services or products.

3. An age old adage works well here, “If it sounds to good to be true, it probably is.”  Often a trust sounds like just the right solution, but in reality it can cost 4 to 5 times as much to create a trust as the cost of a good Will and you receive no more benefit.

4. Seek the advice of someone knowledgeable whose advice you value when considering an estate plan.  Seek the advice of your accountant, estate planning attorney, banker or reputable financial advisor.  Be sure you are working with someone with the necessary training, education and experience for your particular state (Texas).

5. If you conclude that a trust may be right for you, deal directly with a licensed Texas attorney who has substantial expertise in estate planning and Elder Law.

An Estate Attorney is Best

The laws which apply to trusts vary from state to state.  Forms, kits or computer software programs may not be tailored to the requirements of Texas law.  A licensed Texas attorney with expertise in estate planning and Elder Law should prepare, or at least review, your living trust.  Also, a trust prepared by an attorney will generally cost less than the prices charged by trust salespersons.

Next week I will discuss some of the more common tactics employed by Snake Oil Salesmen.

The post REVOCABLE TRUST OR WILL? Part 1 of 2 appeared first on Moak & Moak, P.C. -Attorneys At Law.

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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