WHERE THERE’S A WILL THERE’S A WAY

By | Uncategorized

Having a Will properly drafted by an attorney is one of the wisest investments you can make.   A life changing event (such as COVID-19, marriage, divorce, having children, etc….)  should trigger each of us to pull out our Will (if we have one) and look at it    to make sure that the Will still reflects our desires and intentions.   If your Will needs to be revised or you don’t have Will, a life changing event should motivate you to set an appointment an attorney to discuss your Will.

Basically, a Will is a written document in which the testator (person signing the will) states to whom his or her property should pass upon death.   The Will should contain a provision for the appointment of an independent executor and alternate executor.   The executor is the person who handles the probate of your estate.   The Will can also establish a trust and name a guardian and alternate guardian for minor children.    It is important that the Will is correctly written and properly signed – hence the need for an attorney.

Probate occurs after a person dies.    Essentially, probate is the process by which the deceased person’s property is transferred to the people named in the will.    In Texas, provided the Will is properly drafted and executed, probate is a fairly streamlined process.    On the other hand, if a person dies and does not have a will, administering the estate is often complicated, time consuming, and very costly.

Bank accounts, IRA’s, investment accounts, life insurance, and any account for which there is a beneficiary do not pass through the will and are not a part of the probate.   Instead, these kinds of property go to the named beneficiary.

A person can also simplify things by doing the following:

  • By making sure that all bank accounts have right of survivorship provisions,
  • By authorizing another person to have access to all safety deposit boxes,
  • By providing the executor and alternate executor with a copy of the Will,
  • By providing the executor and alternate executor with a list of all accounts, life insurance policies, stocks, debts, and
  • By providing the executor and alternate executor with a description of and the location of all big-ticket items property.

The process to obtain a will is simple and does not require a face to face meeting with an attorney.   Although strategizing with an attorney about your Will can take place in person, those meetings can also be accomplished by phone calls or zoom.    After you provide your attorney with the necessary information, the attorney drafts the will and then sends it to you for you to read.   Once the will is in final form and each of your questions have been answered, you sign the will.

By taking the time now to make these plans, you will save those you love lots of money, time, and stress in the future.

RESIDENTIAL EVICTIONS AND COVID19

By | Construction & Real Estate News|Firm News, Domestic Violence, Real Estate Law

Under the “old normal,” when a tenant violated a lease agreement, the landlord could evict the tenant by filing a lawsuit, serving the tenant with notice of the lawsuit, and having a hearing.

Recently, the Supreme Court of Texas (which is the highest  civil court in the State of Texas) has issued orders to address some of the problems caused by the spread of the coronavirus, including delaying evictions.   On March 19, 2020, the Supreme Court of Texas issued its “Fourth Emergency Order Regarding the COVID-19 State of Disaster.”

The Fourth Emergency Order applies only to residential tenants.  Trials, hearings, or other proceedings cannot be conducted until after April 20, 2020 and a writ of possession may not be executed until after April 26, 2020.    This means that a court cannot have an eviction trial until after April 20, 2020 and landlord cannot regain possession of the property until after April 26, 2020.

Before April 20, 2020, a landlord can file an residential eviction lawsuit at any time; however, the landlord cannot serve a tenant with notice of the eviction until after April 19, 2020.

The Supreme Court carved out an important exception –a “Sworn Complaint for Forcible Detainer for Threat to Person or for Cause.”  If the landlord believes that a tenant is being threatened or a crime is being committed, the landlord can file a Sworn Complaint for Forcible Detainer for Threat to Person or for Cause.    That complaint must be sworn to or have an affidavit attached to it which describes:

          1) that the actions of the tenant or the tenant’s household members or guests, pose an imminent threat of physical harm to the plaintiff, the plaintiff’s employees or other tenants, or

          2) criminal activity.   

The threats and/or criminal activity must be within the personal knowledge of the person signing the statement.   The complaint and/or affidavit must be signed in front of a notary public.    If the landlord does not have personal knowledge, the landlord can still file the complaint and attach an affidavit signed by the person with personal knowledge to the complaint.   For instance, if the landlord had rented to a husband and wife and the wife physically assaulted the wife.    The landlord could file the complaint and attach the affidavit of the wife to the complaint.   If the court determines that the complaint satisfies this requirement, the court can proceed and have a hearing.

The rationale behind the Supreme Court’s order is obvious – during this time when many people are not able to work, tenants should not fear being kicked out of their homes.   At this same time, landlords can still file eviction lawsuits and tenants who are threatened can still be protected.

 

QUARANTINE 2020– Do I have to pay rent? What can my landlord do? What should Landlords do?

By | Real Estate Law

These truly are unprecedented and uncertain times. I’m fielding questions from business owners and building owners alike about what to do when rent is due and not paid on April 1st and beyond.

The short answer is every tenant should pay rent as required under their respective lease agreements. Failure to do so triggers the default provisions in the lease. Most, if not all leases are devoid of force majeure or excuse-of-performance provisions. So, if a tenant is in the incredible situation of not being able to pay rent because of the current pandemic and accompanying economic downturn, what options exist?

Both residential and commercial lessees should first talk to their landlords. See what options exist and what the landlord is willing to do in light of these unprecedented and uncharted times. Maybe nothing. But, landlords generally prefer to keep a good-paying tenant rather than dealing with the expense and hassle of an eviction, or the self-help remedy of a commercial lock-out, and might be willing to agree to a short-term arrangement without waiving any of the other lease obligations.

Landlords also have expenses and obligations, however. But, landlords would rather have a building with tenants who have been able to survive this as opposed to a vacant building because tenants had no choice but to default and walk the lease. Every landlord/tenant relationship will be different but an open conversation about the current realities is a good place to start.

This is a difficult time for both landlords and tenants and having the conversation now is better than waiting until rent is due and nasty letters and notices are being sent and received.

Additionally, with regard to residential properties, the Supreme Court of Texas has postponed all eviction hearings and trials until after April 19, 2020, to prevent non-paying residential tenants from losing their homes. There are some exceptions in the March 19, 2020 Order, but the expectation is that Landlords will file eviction suits after the Order expires.

I will follow up with the eviction process, the commercial lock-out process, the damages a landlord can seek and how personal guarantees (in the commercial lease context) play in the process. Stay tuned. And stay healthy.

No information in this article is intended as legal advice. For specific legal advice you should contact an attorney. If you have questions or would like more information about landlord/tenant matters, please contact Olyn Poole at 817.348.9060 or olyn@deckerpoole.com.

 

Sharing Children in a Quarantine

By | Alienation, Child Abuse, Child Support, Co-Parenting, Custody and Conservatorship, Domestic Violence, Uncategorized, Unsolicited Opinions

I came across this article during one of my episodes of insomnia this week and it really brought home the need for this blog. “I just want this to be over soon. I can’t wait to hold my kids again” said a father with COVID-19 in a crowded hospital in the middle of Wuhan, China. I pictured how I might feel alone in a hospital, wondering if I was going to die and wishing I could see my children. The sinking feeling that touching your own child would expose them to life and death danger. Candidly, I already hesitate to hold them like I did pre-COVID-19.

As a family law attorney, I have seen mothers be forced to stop nursing their babies so that the fathers can have thirty days of summer possession. I have seen a father in congestive heart failure beg a judge to give him more time with his baby. I have listed to audio recordings of spouses physically assaulting one another over the whimpers of their children. I have seen children be returned to parents who have hurt them.

As we face the prospect of quarantine and lack of ventilators, I am going to see parents crippled with the thought of not seeing their children indefinitely, penniless to support their hungry children, and worse. I could see a child lose a parent in a matter of four days without warning or the last chance to be held in their arms. With the #flattenthecurve movement, none of this could happen. Here are my recommendations if it does:

  1. COVID-19 DOES NOT EXCUSE YOU FROM THE ORDER. Every effort has to be made to follow the court ordered schedule. If you are the family that follows orders and doesn’t agree on a weekly basis to how to share time, then you need to continue to follow the details. Surrender on time and at the right location. If your community is “locked” down, then you still need to try to meet that schedule. Adjust on the time and the location by agreement as needed, but wholeheartedly try to get there. If you do not comply with the order and have no documented history of meaningful attempts to return the children, then you better have one heck of a lawyer.
  2. HIGHER COURTS.  We have seen the great emergent work of the Texas Supreme Court and the collaborate effort of District Courts in distributing interpretations of never before seen issues. Last week we got orders that courts were going to consider the original calendar of the school before the COVID-19 cancellations. That quick move, ensured most kids were returned to the other parent before school was supposed to resume rather than permitting a parent to keep the child based upon the technicality that spring break had been “extended”. This could happen again as the crisis unfolds. Look for these before you draw any hard lines.
  3. YOU CAN ALWAYS ALWAYS AGREE. Always always, you can agree to something other than what your order says. Best practice to is to get it in writing – email is best. There are too many ways to misread a text.
  4. PROTECT THE CHILDREN. Children need to be in the safest environment possible. Do what you have to do to keep the children safe from this virus. There is some data that children are getting sick, so allow them to be in the best environment for that. That means houses are better than shared apartments, parents with the resources to actually attempt the home-school environment, parents who are less likely to be exposed to the front lines of the pandemic. If you are a first responder, and you feel compelled to keep a distance from your children, then do it. You will not be punished by the courts (or shouldn’t be) for that selfless decision.
  5. NOTICE. Parents should inform the other of any symptoms in their households immediately.
  6. ELECTRONIC COMMUNICATION. There are so many options for parents now. There is facetime, marco polo, video games, apps, and so forth that allow kids and their parents to communicate. No rules during this crisis, do it as freely as possible.
  7. CHILD SUPPORT. This is a real thing. People are losing their jobs left and right and wild predictions are being made that unemployment will surge to 20%. If a parent who normally pays child support loses his or her job, he or she is entitled to a modification of his child support. The Courts are mostly closed but still, there is a way to put a pin in the arrears (total amount owed) by filing a modification action and asserting that the new calculation should be made retroactive to the date of the filing. Because unpaid child support can land a person in jail, its important to change the amount as soon as possible. Generally, the lowest child support can go is based upon minimum wage, therefore: $227 for one child, $284 for two children, $340 for three and so on. This does not include the ongoing obligation to insure the child and cover uninsured expenses.If you are left with nothing and you have primary conservatorship of a child, you have grounds to file an emergency motion. Emergency motions are currently being heard by the local courts. 
  8. SUPERVISED VISITATION. If you are currently visiting your child under terms of supervised possession, it could foreseeably be cancelled. Be ready for that. At this time, exchanges at the courthouse have been cancelled and as people become more sick, there will be fewer willing supervisors.
  9. CPS and VIOLENCE. We may see an uptick in reports of violence and child abuse. If CPS is backlogged, you are free to hire a private attorney and seek to have an emergency motion. Again, emergency matters are being considered by our fearless judges.
  10. MAKE UP TIME. Yes, there is such a thing as a motion for make up time and those hearings will be filling the courthouses to settle the score against parents who did not play fair during this crisis. Here is how you ask for it and how you set up the best case to get it.

Scenario 1: A parent is a first responder and feels it would be best not to expose his or her daughter to the virus during the height of the crisis.

Dear John/Jane Doe,

The Fire Department has asked me to work four 12 hour shifts over the next six days which could be the height of the crisis. As much as I would love to keep Sal during this time, I don’t think its in her best interest to be exposed to what I may bring home. Would you mind keeping her during my regularly scheduled time and if so, would you agree to allow me to take her 4 extra days as soon as the crisis is over?

Response: 

Ill keep Sal. But on the four extra days, it really depends. I have Sal signed up for a bunch of camps and she is really looking forward to it. We also planned to go to Florida but I’m not sure. It depends if my new spouse can get off of work. 

Now, in the above scenario, the other parent may gladly take the days off your hands but not firm up the other side of the deal. If this is a case, continue to put Sal’s interest first by avoiding her until you are cleared, then lawyer up and get those days back.

Scenario 2: A parent becomes symptomatic and fears the worst. That parent is stuck between getting their child sick, exposing their other family to it and ya know, their own mortality. But whose to say the other parent has a sterile residence ready to go?

Dear John/Jane Doe,

This morning I wasn’t feeling well and by lunch I was running a 101 degree fever. I haven’t been to China and I have no other symptoms. I just wanted to let you know. Sal has been good, she has completed two online courses and I’ve been sure to keep my distance.

Response:

Thank you for letting me know. Do you think you have COVID-19? I think Sal should stay with me until you are better but my mom is with us and she has COPD so I don’t know what is worse. Can you get tested?

In this scenario, you have to assume there won’t be any tests and neither one of these parents will know what to do. They will have to figure it out together. Sal may be carrying the virus and its not ridiculous to think she should stay with the symptomatic parent. This is a close call. Either way, a Court would freely grant make up time so do it on your own and get it in writing. Land the plane.

DM us on Facebook @DeckerPoole or Insta @deckerpoolepllc with other issues/concerns.