How to Experience Loss

I was in the courthouse the other day waiting for justice and the door of the courtroom opened. As quickly as the door opened, the noise of the court room fell into the hall.  A woman appeared, crying.  She looked at her lawyer and said, “I always thought I would get the house.” He did not answer.  As her appearance witnessed, she did not get the house. She was still crying as she walked down the hall. Her lawyer said nothing as he trailed her down the long and empty hall. And, as I watched they cleared the elevator. Silence.

It made me think once again … law school teaches us everything about the law and nothing about how to practice it.  It definitely doesn’t teach us to face the human side of the law.  Often times we confront loss, grief and individual trauma.  These are all individual human experiences, but as lawyers we are also experiencing these events with the client.

As a probate lawyer of over eighteen years, I have been taught about the Texas Estates Code, civil procedure, how to act in court, how to prepare tax returns, … etc., but not how to experience human grief as a professional.  Yet, as an estate planning, probate or guardianship attorney we are surrounded by loss, trauma and grief daily – the loss of a spouse, parent, sibling, child or close friend. The other day, I asked one of my colleagues who was an older lawyer how he was doing and he responded “dealing with the loss of many friends.”  Professionally and personally, the feigned response that most of us can offer is merely  – “Sorry for your loss.”

Recently, I was listening to David Brooks, The Road to Depth, Thinking About what Character Is, Aspen Ideas to Go, April 27, 2015.  Now, I have always been a fan of Brooks, but the first few minutes of the podcast were amazing -a rare gift of true life skills. How do you address someone in a state of grief or trauma?  How do you act?  Frequently lawyers think they have to have something to say, or a way to act.  Truthfully, most lawyers don’t know how to act.

I am reminded of the first hour after my mother died; we were in her hospital room, and the hospital Chaplain appeared. Personally, it was a moment when all time in my life just stopped.  The Chaplain looked at my father, brother and I and noted “She had never experienced grief like that.”  Then as quickly as she had appeared, she left.  True, we were a mess, but it was obvious, she didn’t know how to experience grief.

The life skills that Brooks presents should be taught to every law student, in fact every medical student … every person.  I’ll summarize Brook’s points below. Forgive me David, if it’s not exact. So, how do you address someone experiencing a loss, trauma or grief?

  • Just bring it up in conversation and if I want to talk about it, I’ll talk about it and if not I’ll let it pass. The loss is always on their mind.  Mention it.
  • Just show up –come like the milkman bringing Milk, not the Calvary trying to save the day, just show up, be there, sit alongside and keep company;
  • Don’t compare one trauma to another, never compare, – don’t turn the other person’s trauma into a story about your-self;
  • Be practical, make sure the things you offer are not supply driven, make sure its demand driven, offer what the individual needs, not the meal that you cook best;
  • Don’t offer false counsel or false hope, don’t say “you will get over it,” don’t rationalize it, don’t say it’s all for the best, don’t try to make sense of what has happened, don’t try to impose any view upon it; and
  • Don’t try to take over, practice a passive activism, don’t try to fix the problem, solve the problem, explain the problem, allow the sufferer the dignity of their own process.

It’s a manner of presence, or just being there.  It’s really about the art of presence.

See David Brooks, The Road to Depth, Thinking About what Character Is, Aspen Ideas to Go, Podcast, April 27, 2015.

It’s really hard to add to what David has already said.

IRS Notice 2017-12: Guidance Relating to the Availability and Use of an Account Transcript as a Substitute for an Estate Tax Closing Letter

In Notice 2017-12, the IRS clarifies that an IRS account transcript is a substitute for an estate closing letter.  Estates and their authorized representatives can request an account transcript at no cost, by filing Form 4506-T, Request for Transcript of Tax Return.

See https://www.irs.gov/pub/irs-drop/n-17-12.pdf

Prior to June 1, 2015, executors, courts, state taxing departments, tax preparers and attorneys relied on the estate tax closing letter (Letter 627) to confirm that the IRS had either completed their examination of the estate tax return or closed their file.

After June 1, 2015, the IRS changed it’s policy and indicated that an estate tax closing letter would only be provided if requested and providing that the request was made four months after the filing of the estate tax return.

Notice 2017–12 now provides clarification for practitioners and others alike that we may use an account transcript as a substitute for a tax closing letter.  The IRS notes that if an account transcript shows a transaction code of 421 and the explanation “Closed examination of tax return,” then this code can act as an equivalent of a tax closing letter.

Similar to an estate closing letter, an account transcript with a 421 code is not a formal closing agreement and as such does not prevent the IRS from reopening or re-examining an estate tax return as set forth in Rev. Proc. 2005-32.  As set forth in the notice, and as provided in § 2010(c)(5)(B) and §§ 20.2010-2(d) and 20.2010-3(d), the IRS may examine the estate tax return of the decedent after issuance of a closing letter or 421 transcript for the purpose of determining the transfer tax liability of the surviving spouse or the decedent when portability has been elected.

Again, the IRS has indicated that a transcript may be obtained by filing a Form 4506-T, Request for Transcript of Tax Return.  The request should be made no earlier than four months after the filing of the estate tax return.

In the notice, the IRS also has provided a phone number at the IRS – (866) 699-4083 to request an estate tax closing letter.  The request should be made no earlier than four months after the filing of the estate tax return.

This new procedure should provide clarity and some peace of mind for accountants, estate attorneys, probate courts and personal representatives alike.

The following is for informational purposes only, shall not constitute legal advice and does not constitute the establishment of an attorney-client relationship.  More importantly, the following information is not a substitute for a Board Certified Texas Estate Planning & Probate Attorney. You should always consult with a qualified attorney.

Find more at www.wrightprobate.com. A website of the Wright Firm, LLP network www.thewrightlawyers.com.

Will Texas Recognize Tortious Interference with Inheritance Rights?

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On February 16, 2017, the Texas Supreme Court will hear the Kinsel case regarding whether Texas recognizes the legal cause of action for tortious interference with inheritance rights. See Longview News-Journal. the https://www.news-journal.com/news/2017/feb/15/texas-supreme-court-to-hear-weighty-issues-thursda/.  This is a big case tomorrow for Texas probate law.  A majority of jurisdictions recognize this cause of action.  Lower courts in Texas are divided.

The following is for informational purposes only, shall not constitute legal advice and does not constitute the establishment of an attorney-client relationship.  More importantly, the following information is not a substitute for a Board Certified Texas Estate Planning & Probate Attorney. You should always consult with a qualified attorney.

Find more at www.wrightprobate.com. A website of the Wright Firm, LLP network www.thewrightlawyers.com.

 

Why Use A Texas Board Certified Estate Planning & Probate Attorney?

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I have to admit up front that I’m a Texas Board Certified Estate Planning & Probate Attorney. I’m also a CPA. Like the CPA exam – only the strong survive the Board Certification process. Yes, it is hard to quality and even after you have the professional relationships and experience, the exam is really hard. I believe that Board Certified Attorneys are like the Jedi Knights of the legal profession. In an age of DIY and form services we select few are dedicated to the “craft” of law.

The Answer – why would you not want to Use a Texas Board Certified Estate Planning and Probate Attorney.

Consider the following facts from the Texas Board of Legal Specialization:

• There are more than 100,000 attorneys licensed to practice in Texas. Only 7,450 are Board Certified.
• Only Board Certified lawyers earn the right to publicly represent themselves as a specialist in a select area of the law. In fact, they are the only attorneys allowed by the State Bar of Texas to do so. This designation sets them apart as being an attorney with the highest, public commitment to excellence in their area of law.
• The process is voluntary and can only take place after an attorney has been in practice for five years, with a minimum of three years experience in the specialty area.
• Board Certification is not a one-time event. It requires an ongoing involvement in the specialty area which is periodically substantiated with references from peers in that field. It also requires annual professional refreshment through Texas Board of Legal Specialization approved, continuing legal education course work to stay abreast of current trends in law.

See http://www.tbls.org/. Also, see this site to find a Texas Board Certified Attorney.

The following is for informational purposes only, shall not constitute legal advice and does not constitute the establishment of an attorney-client relationship. More importantly, the following information is not a substitute for a Board Certified Texas Estate Planning & Probate Attorney. You should always consult with a qualified attorney.
Find more at http://www.wrightprobate.com. A website of the Wright Firm, LLP network http://www.thewrightlawyers.com.

What is The Texas Small Estate Affidavit?

The Small Estate Affidavit is an ancillary probate procedure that allows the heirs of a small estate consisting primarily of a homestead, furniture and furnishings, automobile and pension/profit sharing plan, to transfer title to same. The Small Estate Affidavit may be used in the following situations:

• No petition for the appointment of a personal representative is pending or has been granted;
• Thirty (30) days have elapsed since the death of the decedent; and,
• The value of the entire estate, not including homestead and exempt property, does not exceed $50,000.

See TEX. ESTATES CODE § 205.001.

Caution, if a homestead is the only real property in the estate, title to the homestead can often be transferred through the small estate affidavit, but generally only to a surviving spouse. Note, for a single individual the homestead ends at death.

HOW SMALL IS SMALL

A Small Estate Affidavit allows the passage of title to property to the heirs when the value of the estate is less than $50,000.00 exclusive of the value of the homestead and exempt property. See TEX. ESTATES CODE §205.001(3). Exempt personal property is provided for a family having an aggregate value of not more than $100,000.00 or $50,000.00 if owned by a single adult. See TEX. PROP. CODE § 42.001.

Exempt personal property includes:

• home furnishings, including heirlooms;
• provisions for consumption;
• farming or ranching vehicles and implements;
• tools, equipment, books, and apparatus,
• including boats and motor vehicles used in a trade or profession;
• wearing apparel;
• jewelry not to exceed 25 percent (25%) of the aggregate limitations prescribed by Section 42.001(a);
• two firearms;
• athletic and sporting equipment,
• including bicycles;
• a two wheeled, three wheeled or four wheeled motor vehicle for each member of the family or a single adult who holds a driver’s license or who does not hold a driver’s license but who relies on another person to operate the vehicle for the benefit of the nonlicensed person;
• the following animals and forage on hand for their consumption;
• two horse, mules or donkeys, and a saddle, blanket and bridle for each;
• 12 head of cattle;
• 60 head of other type of livestock;
• 120 fowl;
• household pets; and
• the present value of any life insurance policy.

Texas Property Code Section 42.0021 provides an additional exemption for a retirement plan including a person’s right to assets held in or to receive payments, whether vested or not, under any stock bonus, pension, profit sharing, or similar plan, including a retirement plan for self-employed individuals.

The “traditional” IRA remains exempt and Texas Property Code Section 42.0021(a) has been amended to include Roth IRAs as exempt property. The exemption applies to all contributions made before, on, or after the effective date of the statute.

SMALL ESTATE AFFIDAVIT

You should consult with a Texas attorney regarding the preparation of this affidavit. The applicant should file with the clerk of the Court an affidavit sworn to by two disinterested witnesses and by such distributes as have legal capacity, and if the facts warrant, by the natural guardian or next of kin of any minor or incompetent who is also a distributee. See TEX. ESTATES CODE § 205.002.

The affidavit must include all information required by Section 205.002 of the Texas Estates Code including:

• A list of the assets and liabilities of the estate;
• The names and addresses of the distributes; and
• Relevant family history facts concerning heirship that evidence their right to receive the money or property of the estate.

Note, in light of SB 699, it appears that the affidavit should also include the last 3 digits of the applicant’s social security number and driver’s license if the application will be filed in a non-statutory probate court. As of September 1, 2010, a Civil Case Information Sheet should be filed at the same time.

The Affidavit is not automatic and is subject to court approval. Affidavits are frequently rejected after court review. However, upon the court’s approval, it should be recorded as an official public record by the clerk of the county. TEX. ESTATES CODE § 205.004. This occurs automatically in some counties. In others, it is necessary to file a certified copy in the Deed Records.

WHAT DOES A SMALL ESTATE AFFIDAVIT DO?

The Small Estate Affidavit can provide a simplified procedure to clear title. It is utilized to prove the right of the heirs to estate property, and a certified copy of the affidavit can be provided by the estate distributees to persons owing money to the estate, having custody or possession of estate property, or acting as registrar, fiduciary or transfer agent of the estate of or for estate property. See TEX. ESTATES CODE § 205.007. As set forth above, the Small Estate Affidavit should be recorded in the deed records of the county where the homestead is located to effectuate title transfer. See TEX. ESTATES CODE § 205.006.

Persons making payment, delivery, transfer or issuance of title pursuant to the affidavit described in Texas Estates Code Section 205.007 are released from liability, as if made to a personal representative of the decedent, without being required to inquire into the truth of the statements contained in the affidavit. If the person to whom the affidavit is presented refuses to pay, deliver, transfer or issue the property as requested, such property may be recovered by suit by the distributees upon proof of the facts in the affidavit. Distributees receiving payment, delivery, transfer or issuance of estate assets are liable to any person having a prior right or to any personal representative thereafter appointed. Note, persons who execute the affidavit shall be liable for any damage or loss to any person which arises from any payment, delivery, transfer or issuance made in reliance on the affidavit.

The following is for informational purposes only, shall not constitute legal advice and does not constitute the establishment of an attorney-client relationship. More importantly, the following information is not a substitute for a Board Certified Texas Estate Planning & Probate Attorney. You should always consult with a qualified attorney.

Find more at http://www.wrightprobate.com. A website of the Wright Firm, LLP network http://www.thewrightlawyers.com.

Who Can Execute A Texas Will

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As a Texas Board-Certified Estate Planning and Probate Attorney, one thing that has always confounded me is why someone would not have a Last Will and Testament.  Frequently, I’ve heard the following excuses:

  • I’m too young
  • I don’t have any money
  • I’m too busy

Despite the excuses, the requirements of who can execute a Last Will and Testament in Texas are fairly minimal.  In fact, Texas Estates Code Section 251.001 defines who may execute a will.

Sec. 251.001.  WHO MAY EXECUTE WILL. Under the rules and limitations prescribed by law, a person of sound mind has the right and power to make a last will and testament if, at the time the will is made, the person:

(1)  is 18 years of age or older;

(2)  is or has been married; or

(3)  is a member of the armed forces of the United States, an auxiliary of the armed forces of the United States, or the United States Maritime Service.

Anyone who meets the statutory requirements should have a will. The costs and time for opening an Heirship Proceeding and an Administration far outweigh the cost of getting a will.  The short of it is – Get a Will!

The following is for informational purposes only, shall not constitute legal advice and does not constitute the establishment of an attorney-client relationship.  More importantly, the following information is not a substitute for a Board Certified Texas Estate Planning & Probate Attorney. You should always consult with a qualified attorney.

Find more at www.wrightprobate.com. A website of the Wright Firm, LLP network www.thewrightlawyers.com.

Who Should You Choose As Executor?

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Your executor selection should be made with great care and consideration.  In fact, failure to name the proper executor is really creating disaster by document. At the most basic level the following questions should be considered when selecting an executor:

  • Is the individual willing to serve?
  • Can the individual or entity be trusted?
  • Geographic Proximity? –  are they close enough to serve?
  • Is the individual or entity responsible?
  • Is the individual organized?
  • Is the individual tough?
  • How well do you know the individual, or entity?
  • Are they physically or mentally able to serve? – Will they be of sound mind and physically able to serve at the time they are needed?
  • Can they qualify to serve in the role?
  • Can they qualify for a bond?
  • Do they have outside activities that will prevent them from serving in the role? – Do they have enough time?
  • Do they have any experience in matters that they will need to assist with like financial, medical or legal? They can obtain outside assistance, but do you want them to?
  • How well do they handle conflict and stress?
  • Is the individual, or entity otherwise disqualified?
  • Should you consider an institutional trustee or personal representative?

Your Executor Selection is Just Your Suggestion

The executor named in the Last Will and Testament is merely the testator’s suggestion. Just because you are named as an executor does not mean that you are automatically the executor or that you magically have the power to act.  In fact, you must qualify to act, take an oath, and post a bond if required by the court. The Texas Estates Code governs who is qualified to act as an executor in Texas.  Texas Tex. Est. Code § 304.003 provides the following:

  • 304.003. PERSONS DISQUALIFIED TO SERVE AS EXECUTOR OR ADMINISTRATOR. A person is not qualified to serve as an executor or administrator if the person is:

(1)  incapacitated;

(2)  a felon convicted under the laws of the United States or of any state of the United States unless, in accordance with law, the person has been pardoned or has had the person’s civil rights restored;

(3)  a nonresident of this state who:

(A)  is a natural person or corporation; and

(B)  has not:

(i)  appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate; or

(ii)  had that appointment filed with the court;

(4)  a corporation not authorized to act as a fiduciary in this state; or

(5)  a person whom the court finds unsuitable.

See Tex. Est. Code 304.003.

Your executor must meet these qualification points if they are going to be able to serve in the role of executor.  It is important that the executor selected meets both the needs of the testator as well as the statutory requirements of the state where the testator is located.  Adhering to both will insure that your wishes are carried out and the terms of your Last Will and Testament will be fulfilled.

The following is for informational purposes only, shall not constitute legal advice and does not constitute the establishment of an attorney-client relationship.  More importantly, the following information is not a substitute for a Board Certified Texas Estate Planning & Probate Attorney. You should always consult with a qualified attorney.

Find more at www.wrightprobate.com. A website of the Wright Firm, LLP network www.thewrightlawyers.com.