BE PREPARED!!

By | Estate Planning

“BE PREPARED!”   My brother was an Eagle Scout, and I heard that phrase many times. As an uber planner, I’m all over preparation.  But, even procrastinators need to plan for the future (like when you about to have a medical procedure or are ill or when there’s a world pandemic).

NEWS FLASH – having a plan gives us control and when we have control, we feel better.      A little preparation also helps our family and friends.   The “little preparation” I suggest is to have a Statutory Durable Power of Attorney, a Medical Power of Attorney, and a Directive to Physician.

I have personal experience with the benefits these documents provide because my mother signed these documents.  When she was no longer able to make decisions for herself, these documents made caring for my mother much easier and less stressful.

  1. Statutory Durable Power of Attorney is a written document in which you give someone the authority to conduct business on your behalf – banking, paying bills, dealing with health insurance, Social Security, Medicaid, and Medicare issues, etc….
  2. Health Care Power of Attorney is a written document, prepared by an attorney, in which you give a trusted person the authority to make medical decisions on your behalf.      The medical decisions this person makes cannot contradict your Directive to Physician.
  3. Directive to Physician  is a written document in which you decide whether to be put on life support in the event you become terminally ill.    This document is different from a DNR (Do Not Resuscitate Order).   A DNR is an instruction to health care providers not to do CPR if your breathing stops or if your heart stops beating.

What happens if you become incapacitated (i.e. unable to make decisions and/or to care for yourself) and you do not have these documents?   Most likely, a family member will have to hire an attorney and request that the Court appoint a guardian for you.   That process is very expensive and time consuming.

So, to quote Tony Rea – “Being prepared is about anticipating what comes next and getting ready for it.   If there is a barrier to the next step or some action that needs to happen, it’s you who has to make sure it does.”

 

WHERE THERE’S A WILL THERE’S A WAY

By | Estate Planning

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 – UPDATED

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

On April 6, 2020, the Supreme Court of Texas extended the deadlines regarding residential evictions.

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

The Ninth Emergency Order applies only to residential tenants.  Trials, hearings, or other proceedings cannot be conducted until after April 30, 2020 and a writ of possession may not be executed until after May 7, 2020.    This means that a court cannot have an eviction trial until after April 30, 2020 and landlord cannot regain possession of the property until after May 7, 2020.

Before April 30, 2020, a landlord can file a residential eviction lawsuit at any time; however, the landlord cannot serve a tenant with notice of the eviction until after April 30, 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.