Our Facebook posts contain generic discussions that are not intended as legal advice. Each situation is different. You should hire an attorney to discuss your specific situation.
FRAUD ALERT:![]()
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To all real estate agents, title companies and property owners,![]()
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THE SCAM: Someone claiming to be a property owner contacts a real estate agent to list a vacant lot for sale. That person must close remotely and quickly. The person is not actually the property owner and either has a fake ID or has a notary in the bag for a remote closing. Before the actual property owner finds out, an innocent buyer holds title to their land and the bad guy has runoff with the buyer’s money.![]()
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This actual thing is happening more often in our area and was actually attempted within the last couple of days in my neighborhood. ![]()
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If you are an agent or title company, be skeptical of such contacts, without meeting an owner face-to-face, or at least with better credentials.![]()
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If you are a property owner, you may be able to file a title company notice in the property records of your actual contact information. It’s not a perfect solution, but it may be something to help until we get a better handle on this problem. 
SURPRISE! MY STEP CHILDREN SUDDENLY OWN HALF OF MY HOUSE?! ![]()
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~ Scott Hively![]()
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One of the most common mistakes a couple makes in the context of estate planning (or lack thereof), is assuming that the spouse is automatically the heir. When one spouse dies, the expectation is that the surviving spouse assumes ownership of everything, right? Well...it's not that simple. ![]()
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Texas is a community property state. That means that all property acquired during marriage (with limited exceptions) is characterized as community property. ![]()
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For example, consider your home: regardless of whose name appears on the deed, each spouse owns an undivided 1/2 community property interest in the home. When one spouse dies, only their 1/2 community property interest passes to their heirs. The surviving spouse keeps (does not inherit) their own 1/2.![]()
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So who are the deceased spouse's heirs? Well, that depends. It could be the surviving spouse. On the other hand, if the deceased spouse had any children from outside the current marriage, then the surviving spouse will not be the heir--the deceased spouse's children will be! ![]()
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In the example above, this means that you will own only 1/2 of your own home! Your step-children will own the other half! To make matters worse, if any of your step-children are under 18, you will not be able to clear title to your home, sell it, or otherwise transfer any portion of such minor's interest until that minor becomes an adult (unless you go through a guardianship--which is often more time consuming and expensive than a probate, in Texas)! ![]()
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This is obviously a huge, expensive problem, and is just one of the many reasons why everyone should have a Will--which can easily prevent such unfortunate events. That goes double for anyone who has been (or is married to someone who has been) married more than once, or who has children from outside the current marriage!
We have had a flood of compliments on these charcuterie spreads! As tasty as they are beautiful. Thanks, Michelle!![]()
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Support local business!![]()
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Amazin’ Grazin by Michelle
www.facebook.com
An array of cheese, meats, fruits, dried fruits, snacks, and chocolates for all occasions. Beautiful charcuterie boards created differently for events and special occasions. Grazing Boxes for all occasions, or just to treat yourself.
What is a “Self-Proven” Will? In simple terms, a Self-Proven Will is a Will that contains the necessary information to prove-up the due execution of the Will, including the statutory formalities and the Testator’s capacity at the time of the Will’s execution—usually in the form of an affidavit sworn to by the subscribing witnesses that is attached to the Will, or baked into the attestation clause of the Will.![]()
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When you submit the Will to the Court for probate, you are also simultaneously submitting admissible evidence that the Will was validly executed. The alternative is to do things the old fashioned way—by having the subscribing witnesses personally appear in Court to provide their testimony.![]()
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The problem with the old fashioned way of proving up a Will is that often times, the subscribing witnesses are unavailable, cannot be located, or have already themselves died. From time to time, a client will provide a Will that is not Self-Proven, and immediately the cost of their probate (in both dollars and time) will go up sharply due to the additional hoops that now have to be jumped through in order to get the Will admitted to probate.![]()
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A major cause of a Will not being Self-Proven is a homemade, self-prepared (or internet sourced) Will—for the obvious reason that most people are not aware of the Self-Proven concept or how to make it work. The relatively small amount of money saved by using a free self-prepared Will (rather than paying an attorney to draft it) is later more than off-set by the increased costs of probate. Simply put, it may cost more to use a free, self-prepared Will than an attorney drafted Will—on the issue of its Self-Proven character alone!![]()
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Another common reason why a Will fails to be considered Self-Proven, even if drafted by an attorney, is because it was drafted according to the laws of a State other than Texas—perhaps a State that does not have the Self-Proven concept, or one that differs substantially from the Texas requirements for a Self-Proven Will.![]()
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If you are a Texas resident and you have a self-prepared, non-attorney drafted Will, or one that was drafted outside the State of Texas, you should speak with a Texas estate planning or probate attorney to verify that your Will is in fact “Self-Proven.” Doing so could save you and your loved ones some money during the probate process.![]()
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~Scott R. Hively, Associate Attorney ![]()
(not certified by the Texas Board of Legal Specialization)
The Texas Series LLC ![]()
by Scott Hively![]()
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After many decades of creative business entity innovation, the gold standard for today’s privately owned and closely held businesses is the Limited Liability Company (LLC). But does it get any better than the LLC? For real estate investors especially, the answer is yes! Meet the Series LLC. A Series LLC is an LLC, except that the owners can create multiple sub-entities within the LLC, which are called “series.” If done correctly (see a lawyer), each series is responsible for only the liabilities and obligations of that series, and the LLC generally is responsible for only the liabilities and obligations of the LLC generally. This is especially valuable to real estate investors who may own several properties. For example, if you own 15 properties, you could either: (i) leave them all in a single liability bucket with an ordinary LLC, leaving all properties exposed to the liability of each other property; or (ii) place each property in its own series, all within a single Series LLC—where the potential liability to which each property is exposed is limited to that specific property (assuming one property per series). The former option leaves all the properties exposed to all potential liabilities for the LLC, where the latter option effectively places each property in its own liability silo. As an added bonus, while the State of Texas treats each series as its own entity for liability purposes, the Series LLC is generally treated as a single entity for tax purposes—providing ultimate administrative efficiency. If you think a Series LLC might be right for you—especially if you are a real estate investor—then you should speak with a real estate and business lawyer to explore your options.
Why are LLCs so popular? By Scott Hively![]()
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You may have noticed that most new businesses formed over the past decade or so have chosen to use the LLC (Limited Liability Company) form of business entity. It wasn’t always this way. In the past, the most popular business entity forms were partnerships or corporations, and the various hybrids of the two—LPs, LLPs, LLLPs, etc. So what makes the LLC special?![]()
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In short, the LLC is the best of both worlds—partnership law and corporation law—and is the most flexible form of business entity. The laws governing partnerships and corporations are at two ends of the spectrum, with the other entity types falling between the two. Unlike the other entity types that are relatively fixed along this partnership-corporate spectrum, an LLC can be structured to weave through both ends of this spectrum to capture the most advantageous aspects while avoiding the disadvantages associated with each other entity type. Take taxes for example: an LLC is the only entity type that can tell the IRS whether it wants to be taxed as a partnership or as a corporation. Depending on your particular situation (and tax bracket), one option or the other may be more beneficial to you. The same is true for other aspects of the business entity: management and control (day-to-day), authority for fundamental transactions (i.e., mergers), liability protection (generally, and liability for acts of other owners), corporate formalities, economic rights (who gets paid what and when), etc.![]()
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Because of the extreme flexibility of an LLC, the one-size-fits-all approach typical of a form downloaded from the internet is statistically more likely than not to frustrate your goals, rather than further them. If you are considering forming a new business entity, I would encourage you to consult an attorney familiar with such matters to guide you through the vast labyrinth of business entity options.
On Thursday, June 25 at 11:00am, Wise Capital Partners will be hosting a Virtual Seminar on the topic of Estate Planning. ![]()
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Our very own Scott Hively will give a high-level overview of the nuts and bolts of Estate Planning (in plain English for non-lawyers)!![]()
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A link will be provided at a later time, but prior to the Virtual Seminar. If you have any questions, or would like to register for this seminar, please see the link below or give Miriam O. Angel (of Wise Capital Partners) a call at 281-360-9473 ext. 304. ![]()
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Feel free to share with others, and we look forward to seeing you all there!![]()
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Please register in advance for this meeting at![]()
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us02web.zoom.us/meeting/register/tZUlfu6vqjosGdAzqJBqgOhu0KtpIg0n0RnJ
Extramarital Children and the Testamentary Trust![]()
by Scott Hively![]()
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When drafting Wills for a married couple, one common issue that often arises is that one spouse (or both) has children from outside the current marriage, and wants to leave everything for their surviving spouse (the most common scenario)--yet also wants to protect their extramarital children from being effectively disinherited later on down the road. The precise issue is that by leaving everything to the surviving spouse, all of the estate could be spent, wasted, or given to others either during life or by the surviving spouse changing his or her Will, with the extramarital children, not being children of the surviving spouse, never receiving a single dime from their parent's estate.![]()
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One solution is to leave everything to the surviving spouse in a testamentary trust, with the surviving spouse serving as the trustee and the primary beneficiary--and the extramarital children as remainder beneficiaries. The trust can be set up to allow the trustee/primary beneficiary to enjoy all, most, or some of the property during life, and can provide for certain restrictions (i.e., may not sell my sports car). Upon the death of the surviving spouse (primary beneficiary), all trust assets would be distributed outright and free from trust to the extramarital children (remainder beneficiaries), thereby preventing the surviving spouse from doing anything, whether during life or in their Will, from effectively disinheriting the extramarital children.![]()
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If you have children that are not also the children of your current spouse, you should speak with an estate planning attorney to see if setting up a such a testamentary trust in your Will is the right move for you.
Private Financing and Bank Regulations ![]()
~by Jeffrey W. Burnett![]()
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You may one day choose to sell real estate via seller financing or even loan a friend some money to purchase real estate from a third party, in either of which case you basically serve as the buyer's lender - you have a lien against the real estate, and the buyer pays you over time.![]()
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There are all sorts of federal and state laws (RESPA, Dodd-Frank, SAFE Act, etc.) that could potentially put you into the same regulatory category as a bank, requiring formal loan applications, good faith estimates and other documentation that you may not be aware is required, with pretty severe penalties for violation. ![]()
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Private lenders should definitely consult with a lawyer regarding memorializing the transaction, but they should also consider consulting with a licensed mortgage broker to determine whether they are within the safe harbor for or, if not, then in compliance with, these lending laws.
My Irresponsible Child – The Spendthrift ![]()
~by Scott Hively![]()
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As most people do, you may be considering leaving some (or all) of your estate to your children after you pass. A common issue arises where one (or more) of your children have demonstrated a clear inability to prudently manage his or her financial affairs. If such an individual receives their portion of the estate outright, you are sure it will be quickly squandered away. How do you prevent this?![]()
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One of the most common ways to ensure that such an individual receives the benefit of their portion of your estate for as long as possible is to create a Spendthrift Trust. Simply put, such individual’s portion of your estate would be irrevocably transferred into a trust (either during life or at death). The trustee would then make distributions to the beneficiary as needed, according to the terms of such trust. The undistributed principal and income of the trust assets remain legally in the name of the trustee—and therefore beyond a creditor’s reach until a distribution is made to the beneficiary (and then only to the extent of such distribution). There are pros and cons of setting up such a trust, so you should speak with an estate planning lawyer to learn more and find out whether a Spendthrift Trust is right for you.
Needing a Loan for your Small Business?![]()
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Many small business owners are currently experiencing an acute shortfall in revenue due to the COVID-19 crisis, making it difficult to meet on-going expenses. Whether you are having trouble meeting payroll expenses or making your monthly commercial lease payments, if you own a small business you may have considered a loan to get you through these economically challenging times. While your lender will be able to guide you through the loan process, one recurring problem that your lender may be unable to help you with, and which can delay or derail your loan process altogether, is your inability to provide sufficient business entity documentation (as distinguished from financial/accounting documents).![]()
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For all loans, a lender is going to need to see official legal documents showing your entity: (a) legally exists; and (b) is in good standing with its state of formation/incorporation. You will also need to provide the official legal documents evidencing management authority for your entity--corporate bylaws or LLC operating agreement, for example. In most cases, a corporate board resolution or resolution of members/managers of the LLC will also be required to provide specific authority for the contemplated transaction. These requirements are the bare minimum that any lender would want to see before making a loan to your business, so if you are missing an operating agreement or any other type of business entity document, or if you have not been diligently documenting important transactions (such as the transfer of all or part of the business ownership interests from one person to another), then now is the time to get your business affairs in order.![]()
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You would be wise to speak with an attorney familiar with handling sophisticated corporate law matters in order to ensure that your business entity documents are complete, and if necessary, make certain business-entity level changes to prevent ineligibility for certain loans (if applicable). Many headaches can be avoided in the loan process through proper business entity planning and by having your business entity documents in order before you go see your lender.![]()
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Scott R. Hively, Associate Attorney
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Below is a helpful link for small businesses interested in Paycheck Protection Program loans.![]()
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home.treasury.gov/system/files/136/PPP%20Borrower%20Information%20Fact%20Sheet.pdf
home.treasury.gov
Few things are more difficult and emotionally draining than picking up the pieces and resolving the legal issues left behind after a loved one has passed. We often hear from individuals who are simply trying to make sure that they and their siblings maintain and take ownership of “Mom and Dad’s” old home, and who are understandably overwhelmed in dealing with this process. ![]()
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There are several options for how to handle the estate of a decedent, depending on the family situation (natural heirs), the property situation, and whether or not there was a Will. As you are likely aware—a full probate can be expensive! You should speak with a probate lawyer to determine your options so that you do not overpay for unnecessary legal services and court costs, while ensuring the path you choose will accomplish all of your probate-related goals.![]()
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For example, if the only asset of the estate is Texas real estate (no bank accounts, etc.), then a full probate of the Will may often be unnecessary. In such a scenario, a limited probate process called “Probate as Muniment of Title” can be used to transfer title of the Texas real estate to the beneficiaries named in the Will. This process is much quicker and less costly than a full probate, as it does not involve the appointment of an executor and an administration process after the Will has been admitted to probate by the court. In some situations when the beneficiaries named in the Will are the same as the decedent’s natural and statutory heirs (or in certain scenarios where there is no Will), it may be possible to bypass the probate process in the courts entirely with an even quicker and less costly process.![]()
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If however, there is any estate property other than Texas real estate (or if there is any non-mortgage debt of the Decedent, including Medicaid-related debt), a full probate of the Will—or an administration if there is no Will—may be required to properly pay estate debt to the creditors and transfer title of the remaining property to the beneficiaries. Even if a full probate would otherwise be required, in certain cases where the value of the estate falls below a certain threshold, a small estate proceeding may be available to transfer title to the natural and statutory heirs.![]()
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The costs for these options and services can vary dramatically from a couple hundred to several thousand depending on your specific needs and which type of probate-related process is necessary for your specific situation. If you find yourself in the unenviable position of responsibility for handling the affairs of a loved one after they have passed, then you would be doing yourself a favor by speaking with a probate lawyer to bring clarity to an otherwise convoluted process to the uninitiated.
The Mortgage “Due on Sale” Clause. ![]()
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If you took out a mortgage loan to purchase your home, that mortgage almost certainly includes what is called a "due on sale clause". That provision likely says that your FULL loan amount becomes IMMEDIATELY due if you transfer any part of your home to someone else.![]()
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I often receive calls from clients asking to add a child, parent, fiancee, etc. to their home title. I also receive requests to sell a home "subject to" the existing mortgage. These are all likely technical violations of the due on sale clause. ![]()
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So, before you change title to your mortgaged home, please discuss any unintended consequences with an attorney.![]()
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*The above is a generic discussion and is not intended as legal advice. Each situation is different. You should hire an attorney to discuss your specific situation.
Meet Sandy Galvan, our project manager and paralegal. Sandy (together with our attorneys) handles most of our institutional bank and title company matters.
