by Jen Green, Burch Law

You may never have heard of apostilles; and to be fair, you may never need one. But if you do need one or more apostilles, time is usually of the essence, international transactions are pending, and you need someone familiar with the apostille process to help you obtain them in a timely manner.

When you have a transaction that crosses international borders, for example: if you are opening a business office abroad, buying property overseas, or inheriting an estate outside of the U.S., you may need various documents with apostilles to document the authenticity of the document or the identity of the signatory.

An apostille basically is a form of document authentication established by treaty that can be used in nations that participate in the Hague Convention of 1961. The Apostille Treaty (or Apostille Convention) is an international treaty that came out of the Hague Convention on Private International Law. Various nations signed on at different times and under different conditions, so you need to know the apostille requirements for the country that will receive your document with its apostille. This variety makes the process fun.

There are several types of apostille authentications that you can obtain in Texas: recordable documents issued by a Texas officer such as a County Clerk, for instance – you will need to submit the original or a certified copy to the Texas Authentications Unit in Austin; non-recordable documents that are notarized by a Texas Notary Public – you will submit the original document with an original, notarized signature; copies (such as of a passport photo page) that are verified by the signatory/person making the copy and notarized by a Texas Notary Public; requests relating to child adoption; and Texas corporations documents on file with the Texas Secretary of State that can be authenticated by the Texas Secretary of State corporations unit. Some of the apostille requests require different request forms from the standard request, and all require payment of fees and specification for the apostille agency of the nation to which you will send the apostilled documents.

In Texas, the turnaround time for receiving your apostilled document back is relatively quick compared to most government processes, but you want to make sure that you have submitted your documents in a form that the agency can validly authenticate and apostille, along with the proper request and fee payment, or your much-needed apostilles may be delayed for failure to follow the specific requirements of convention and treaty.

So if you find yourself in need of one or more apostilles, contact us. We have experience in obtaining apostilles and in formatting documents and requests to comport with treaty and convention requirements. Let us help you navigate the maze of cross-border document authentications.

Rainbow Marriage; Green Card

by Jen Green, Burch Law

OK, so the federal government has finally recognized that love is love and a true marriage of souls is valid whatever may be the physical gender(s) of those uniting in matrimony. The U.S. federal government now recognizes the validity of same-sex marriages, even though some of the individual states of the United States do not. Fortunately for those whose marriage partner is of the same gender but of another nation, the marriage-based immigration process is a federal matter.

So, if you are a U.S. citizen, and your true love is from abroad and happens to be of the same gender as yourself (as gender is commonly defined – the full continuum of gender identity being beyond the scope of this particular blog entry), you now have the opportunity to sponsor them for legal permanent residence in the United States! Yes, your partner may now obtain a U.S. green card through marriage. For purposes of this blog, let’s call it the U.S. rainbow card!

The marriage itself is just the first step though in the green card process. If you are a U.S. citizen, a visa is immediately available for your spouse. If you are a U.S. permanent resident and your spouse is from abroad, they fall into the second preference category, and may have a lengthy wait (currently around two years) before a visa becomes available for them.

In either case, there are forms to fill, documents to gather, and a medical exam with a government-approved physician to undergo. If you married and live together in the USA, you may file everything by mail, and simply wait. There will be a biometrics appointment in your local community for photos and fingerprints of your spouse, and an interview at the local USCIS office.

The marriage-based interview can be notoriously difficult. The interview process is designed to weed out fraudulent applications. It isn’t infallible, clearly, but it does have some success here and there. People might fail even with a genuine marriage if they don’t pay attention to their spouse’s habits or preferences (does anyone else know people who don’t pay close attention to their spouse’s habits or preferences?), or if they guess at the answer to a question where they don’t know. There are other challenges if your chosen life mate has criminal convictions or has associations with groups the government is not fond of. Basically, there is a long list of questions about your spouse’s background and activities in the permanent residence application, and even if they choose to answer untruthfully, the truth is out there and may well be found during the background check phase. And falsifying information on an application can make your spouse permanently ineligible for permanent residence.

Alternatively, if you were married abroad, you may have to travel back to the U.S without your spouse and wait for a time until they receive their immigrant visa and can rejoin you in the U.S. You will need to file a marriage-based petition, and they will need to fill out the immigrant visa application and submit it to the U.S. Consulate in their home country (or sometimes in a nearby country, depending on the status of diplomatic relations). When their application is reviewed and approved, they will schedule an interview at the Consulate, take their original biographical documents with them, and with luck, receive their passport back with an immigrant visa stamp allowing them to enter the U.S. as a permanent resident. The actual “green card” or permanent resident card is received in the mail afterwards.

The initial green card received by someone sponsored through marriage is a conditional one however, good for two years only. Slightly before the end of that two years, you will file a petition to remove the conditions on your spouse’s permanent residency. Timing of the filing is critical; if you miss the deadline, you may find your spouse in removal proceedings. An interview at the local USCIS office may be required with this petition also. If all goes well, and the conditions on your spouse’s permanent residence are removed, your spouse receives a non-conditional green card, and is eligible top apply for naturalization as a U.S. citizen in another 3 years. And you could live happily ever after. (Or not. But that’s marriage.)

If you are ready to undertake the well-papered path of the marriage-based green card process, or if you already have and now need to apply for your citizenship, contact us. We can help. We have been down those paths with many people before. Your success is our goal.

Rental Properties & LLCs: How to Protect your Investment

by Jen Green, Burch Law

You may be one of the many people contemplating how to expand your investment and income possibilities. In an era of uncertain economic outlook and roller coaster returns in the stock market, many people are turning to real property as the more certain investment. Whether it is flipping houses or acquiring rental properties, real property represents to many people a solid investment offering real returns in an age of unreal and insubstantial wealth offerings, like derivatives. Unlike less tangible assets, you can insure your real property against most worst-case scenarios.

However, real property can also be a real target for lawsuits, frivolous or genuine, so you want to shield yourself and your assets from liability exposure as much as you can. Slip and fall incidents, landlord-tenant disputes, breach of contract, all kinds of issues and unexpected situations are out there waiting to complicate your life.

One way to shield yourself from unnecessary liability exposure in Texas is the limited liability company (LLC). The traditional LLC is a favorite of real estate investors. And the LLC is a flexible vehicle that generally allows you to register your LLC in other states, as a foreign entity, when you find your business and opportunities expanding. The flexibility is one of things investors and business owners love about the LLC. It has pass-through tax treatment, you can easily you’re your entity and customize your operating structure as needed in your LLC Agreement, and decrease your personal and asset exposure to liability, all in a user-friendly package.

For an investor with numerous properties, there is even an additional level of protection that you can find: the Texas Series LLC. The ancestor of the Texas Series LLC evolved in Delaware, initially as a vehicle to allow different classes of mutual funds to be treated as a single whole for SEC filing purposes. And the Texas LLC for real property investments also allows you to have different classes of property located in different series of a single LLC. The entire Series LLC is taxed as a single entity, but the separate series can engage in their own contracts and business transactions. The annual corporate filings with eth Texas Secretary of State are also for the single, overall Series LLC; no separate filings are required from the individual series within it. Whether you choose to have separate bank accounts for each series, or account for them separately within a single account, depends upon the complexity of their transactions and your own (or your accountant’s) love of detail. Single entity tax and filing treatment can streamline operations for those who plan well.

If you have rental properties, you could hold each one in a separate series of your Series LLC. You could obtain assumed names (d/b/a names) for each to make it easier to interface with your market. You could have single family residences, duplexes, and other types of rental properties in separate series. If you are fortunate enough to have multiple properties with vastly different tax treatments (farm/agricultural, urban commercial, and residential rentals), you may want to set up separate Series LLCs for each tax type of property, since your overall Series LLC(s) will (each) get treated as a single entity for tax purposes. Word to the Wise: creating complex tax headaches for the tax man could create tax headaches for you too.

And to keep your liability shield in place, you must clearly account for the transactions of each separate series, even if it is all within one bank account, so that anyone looking at the account can tell which income, expense, and other transactions relate to which individual series. Mixing and muddling the accounting loses you the protection of your Series LLC, so don’t skimp on record-keeping.

There are several ways to structure your LLC or Series LLC that we could discuss with you. You might prefer a single traditional LLC for its simplicity. Or you may prefer to have a traditional LLC conducting all of the business operations while a Series LLC acts as a holding company for the assets. You may prefer to own the LLC directly as Managing Member or have one entity own another. You can throw in trusts and additional structures too as additional layers of shielding from liability, but the more you add, the more you must keep track of, and you may find the complexity adding time and expense to your operations. The LLC’s flexibility ensures that you should be able to find a structure that works best for you and your investment goals, with the level of protection you need from liability.

And if someone has a slip-and-fall, for example, at one of your properties and obtains a judgment, they can only collect against the series that contains the property at which they allegedly fell. They cannot collect against any of the other series within that Series LLC or against the Series LLC itself. Or against you personally. They are limited to that one series asset. Note: when you are transferring properties in and out of your business(es), especially if you will be holding it for a long term, ensure you transfer them into an individual series, and not just into the name of the overall Series LLC. That missed property is a sitting duck for collections of judgment – it doesn’t have the extra shielding that slipping it into its individual series affords. If someone wants to assault your business battlements, make them work for it.

Let us help you build your fortress LLC as you build your business. Texas is a business and property-friendly state, and that’s the goal behind the extra liability protection in a Texas Series LLC – to tend your assets so that they are there to help your business grow and conquer.

Do I Need a Living Trust?

What is a Revocable Living Trust?

Much has been written regarding the use of “living trusts” (also known as a “revocable trust,” “inter vivos trust,” or “loving trust”) as a solution for a wide variety of problems associated with estate planning that wills cannot address. Some attorneys regularly recommend the use of such trusts, while others believe that their value has been somewhat overstated. The choice of a living trust should be made after consideration of a number of factors.

The term “living trust” is generally used to describe a trust that you create during your lifetime.  A living trust can help you manage your assets or protect you should you become ill, disabled or simply challenged by the symptoms of aging. Most living trusts are written to permit you to revoke or amend them whenever you wish to do so.  These trusts do not help you avoid estate tax because your power to revoke or amend them causes them to continue to be includable in your estate.  These trusts do help you avoid probate, which may not always be necessary depending on the cost and complexity of probate in your estate.

A “living trust” is legally in existence during your lifetime, has a trustee who currently serves, and owns property which (generally) you have transferred to it during your lifetime. While you are living, the trustee (who may be you, although a co-trustee might also be named along with you) is generally responsible for managing the property as you direct for your benefit. Upon your death, the trustee is generally directed to either distribute the trust property to your beneficiaries, or to continue to hold it and manage it for the benefit of your beneficiaries. Like a will, a living trust can provide for the distribution of property upon your death. Unlike a will, it can also (a) provide you with a vehicle for managing your property during your lifetime, and (b) authorize the trustee to manage the property and use it for your benefit (and your family) if you should become incapacitated, thereby avoiding the appointment of a guardian for that purpose.

Advantages of a Living Trust:

  • It’s a smart way to avoid probate.
  • Keep more money in the family by avoiding potentially lengthy and expensive court proceedings.
  • Your personal and financial matters remain private. By creating a living trust, the public doesn’t get to see what you owned, who you owed, or who will inherit your assets.
  • Your affairs get handled if you’re incapacitated. Avoid going to court by appointing a trustee to take charge of your finances according to the instructions provided in your living trust.
  • A living trust doesn’t change your financial affairs. A living trust lets you do whatever you want with your money – buy and sell assets, open bank accounts and make investments just like you do now. You can amend or change the trust any time, or even revoke it and pull your assets out. It remains on the shelf, ready to act if something happens to you or your spouse.
  • Avoids probate in multiple states if you own real estate outside of Texas.

Disadvantages of a Living Trust:

  • Time-consuming to maintain – you will need to transfer all of your property, beneficiaries, bank accounts, and other assets to the trust AND you will need to remember to acquire any new assets in the trust throughout your life in order to avoid probate.
  • More expensive. Now, if you are successful in transferring your assets to your trust, then the trust will ultimately save money as it can avoid or at least significantly reduce probate costs.

Frequently Asked Questions:
What is a living trust?
It’s a legal document that states who you want to manage and distribute your property if you’re unable to do so, and who receives it when you pass away. Once signed, you transfer ownership of your assets into the trust and you remain in complete control of your property. The trust property can be managed and distributed without going through the probate court.

Can I transfer property into and out of the trust while I’m alive? Yes. If you have an individual trust, you can transfer property whenever you want. If you have a shared trust, you’ll need your co-trustee’s consent if you own the property together.

Do I still need a Will if I have a living trust? Yes, because you may not have transferred your property into your trust before you pass away. A Living Trust includes a pour over will. It transfers property still in your name alone when you pass away to the trust to be distributed to your beneficiaries. It also lets you name guardians for your minor children.

Aren’t living trusts just for the wealthy? Not at all. People of all income levels can set one up to manage their finances in case they become disabled, or to provide for loved ones without going through probate court, which may be required of relatively modest estates.

2B or not 2B: The H2B Visa Solution for Employers seeking Temporary, Nonagricultural Workers

by Jen Green, Burch Law

The H2B visa option is an increasingly popular, yet still often overlooked, solution for employers needing to fill temporary labor needs. Often used in the construction or hospitality industries, this visa classification allows an employer to bring over several workers at once via a streamlined process (relative to most other employment-based visas).

The H2B, like other visa classifications, has its particular restrictions, which an experienced immigration attorney could guide you through. For example, the H2B can only be used for workers from designated countries, but the list of designated countries is quite long. Another key thing to remember about the H2B visa is that it is for temporary employment, and only for nonagricultural workers. Employers may use the visa to fill seasonal, peak load, intermittent, or one-time needs. A “season” can be surprisingly long for H2B purposes and is not clearly defined under the regulations. Basically, the employer needs to be able to show that the period where he doesn’t need the workers is predictable (for instance, during the dead of winter when work can’t be done). An experienced immigration attorney could help you understand how your work requirements fit into the H2B framework.

H2B visas can be extended in increments of one year, for a maximum stay of 3 years for a worker. But at the end of that period, the worker only must leave the USA for an uninterrupted period of 3 months before seeking readmission in H2B status. So, although the H2B visa does not provide a path to the green card, like some other “temporary” visa classifications it does allow for a basically indefinite stay in working status, with minor interruptions of mandated stays abroad. And the worker’s spouse and unmarried children under age 21 may come too – in H4 status; they just cannot work in the U.S.

The H2B classification currently has 66,000 visa numbers available each year, which are allotted in two groups of 33,000 each – the first 33,000 for the first half of the USCIS fiscal year, and the other 33,000 in the second half of that fiscal year. The 33,000 available visa numbers for the first half of fiscal year 2018 are already all taken. The H2B visa category, like most other U.S. visa categories, is oversubscribed, so employers should prepare to gather their worker and job information efficiently and be able submit it as soon as a new petition period opens. This involves careful timing and planning; the employer must submit a temporary labor certification application to the Department of Labor and obtain its certification before the employer can submit the H2B petition to the USCIS with the required documentation.

As you may perceive just from this brief overview, obtaining H2B visas for your temporary workers takes careful coordination of paperwork and timing; so employers could benefit from the help of an experienced immigration attorney to navigate the requirements and steps. If the H2B visa might help you solve your labor needs and you need help with the petition process, contact us. We’re here to help.

Elder Law – Planning for Incapacity

by Jen Green, Burch Law

No one wants to think about the possibility of becoming incapacitated. But as estate planning lawyers are all too aware, it can happen to anyone at any time. If you don’t plan for incapacity, incapacity may plan for you. It is an especial concern now that modern medicine has vastly lengthened the quantity of life, but not necessarily the quality. Elder law isn’t just for the elderly; we all need to plan ahead for ourselves and our loved ones.

But even when we don’t want to plan for incapacity, most of us are opinionated about whom we want to have access to our stuff. And who we will let make decisions for us.

The time to put systems in place to ensure that your wishes are followed in these matters is when you still have the capacity to make decisions under the law. Just because the standard of legal capacity to make a Will is pretty low is no reason to put off necessary planning. The temptation to procrastinate is great, but better to use your procrastination credits on that long-deferred plan to clean out the garage or those vaguely disturbing dark corners in the back of your closet that are starting to mysteriously expand and make strange mewling sounds….

Anyway, back to the plan: an important component of any plan to legally cement your wishes in place is the statutory durable power of attorney (your financial power of attorney). This document will allow your most trusted relatives and/or friends to manage your finances for your benefit while you are incapacitated, whether from a temporary hospital stay or something more long term. It needs to be durable to remain in effect after you become incapacitated (otherwise it basically goes away the moment you become incapacitated). And if something happens such that you can’t manage your finances as usual, you will need someone to access those funds to pay for your bills and your care.

You will also need a medical power of attorney and the accompanying release that allows a trusted loved one to make medical decisions and access your medical information.

Additionally, you will also want to be the one to choose a guardian in the event you become incapacitated. You don’t want this choice made by a court or by a stranger. Always better to plan ahead and set down your wishes in a valid legal document. If you wouldn’t let someone touch your money or make a decision for you now, you sure don’t want them stepping in later when you have no say in the matter. Guardianship comes up in many other contexts than elder law, because incapacity can affect people at all stages of life.

We can’t emphasize enough the importance of planning ahead. Our estate planning lawyers can help guide you through thinking about your choices and choosing the best options for your lifestyle. We can prepare the powers of attorney, directives, trusts, Wills, and other documents you will need to secure your wishes in the face of future eventualities.
If you have a ne’er do well relative or friend who has their eye on your estate, don’t let failure to plan provide their golden opportunity. Stop them now. You can get the last laugh. But it requires proper planning. We can help. Contact our estate planning lawyers to set up a no obligation consultation.

Cover Your Assets – Investment Planning with the Texas Series LLC


by Jen Green, Burch Law

Since 2009, Texas has offered a wonderful tool for investors, particularly those with multiple assets: the Texas Series LLC. With the traditional LLC, which already offered a fair amount of shielding from personal liability, investors enjoyed the benefits of pass-through taxation and informal management structures. With the Series LLC, the investor continues to enjoy those benefits and also gains the benefit of an additional level of shielding. For example, if you owned 10 pieces of real property, placed in Series 1 through 10 of your “RE LLC”, and someone won a judgment against Series 4, they could only collect that judgment from Series 4, not from any of the other series or from RE LLC. RE LLC could for the most part place its assets beyond judgment creditors’ reach, in that it would not enter into contracts or business dealings with other parties, being primarily the holding company for the various Series. And if those Series contained rental properties, for example, you might want to make your property management company a different LLC altogether, perhaps a traditional stand-alone LLC just for the purpose of managing those entities, keeping the assets’ ownership and management activities related to them separate.

You might think that the Series LLC sounds too complex or time-consuming to deal with, but Texas has made it a fairly user-friendly vehicle. Forming a Series LLC is straightforward (easier, in my opinion, than amending a traditional LLC to a series LLC). In filing your Certificate of Formation with the Texas Secretary of State, there is some additional language you need to add to your Certificate filing, which is set forth in the governing statute, that puts people on notice that your LLC is a Series LLC. In effect, it puts people on notice that they are going to have to work extra hard if they want to come after your assets, potentially eliminating frivolous lawsuits and nuisance “slip and fall” type suits in the bud. And you don’t have to already have multiple assets when you form the Series LLC: it will function as a traditional LLC just fine until you are ready to make the leap and start adding series of assets.

One thing to remember when forming your LLC, whether traditional or Series, Texas requires that the LLC file a Public Information Report and pay a relatively paltry franchise tax each year. Yet despite the tiny cost of this tax relative to the sizable protection your LLC could provide your assets, it always surprises me how many LLCs go into “forfeiture” status for failure to pay the franchise tax. But it is not just the LLC which is forfeit, it is also your protection from personal liability for debts, liabilities, and judgments of or against the LLC. Make a recurring calendar entry to remind yourself about this if you have to; you don’t want your shrewd foresight in forming the LLC to go for naught.

The additional duties involved in operating a Series LLC as opposed to a traditional LLC are basically:

  • Titling your properties or investments in the name of the individual Series and deeding them back out in the name of that Series; and
  • Keeping records of revenues, expenses and activities related to each Series separate for record-keeping purposes. This is very important! If you comingle these items for the various Series, you have lost the Series’ extra layer of liability protection. Think of it in terms of Texas community property law: when spouses comingle their separate property, they convert it to community property. Similarly, when Series LLC operators comingle transactions of their separate Series under a single record-keeping designation, they convert the series to a traditional LLC, where the pool of commingled assets can be reached more easily by creditors. Commingling Series’ transactions makes it easy to pierce the corporate veil and defeats the purpose of creating a Series LLC in the first place.

The Series LLC is treated as a single legal entity; technically, the individual Series which it comprises are not separate legal entities, even though they can largely behave as such in their business dealings. You can even obtain separate EIN numbers for each Series if you wish, though in most circumstances that would simply add unnecessary complexity. You also do not need separate bank accounts for each Series; one bank account for the entire LLC will do, so long as you notate transactions for the specific series to which they belong. For instance: January rental payment received-Series 1-$1600; HVAC repairs-Series 3-$2000, etc.

For ease of transaction tracking and record-keeping, you may want to limit the number of Series held within a single LLC to a dozen or less. You will also want to keep in separate LLCS investments with very different tax or debt structures or liability issues or exposure (for example, as mentioned previously, keep management/activity separate from assets). For instance, if you own several residential rental properties, several commercial rental properties, and several parcels of land for development, you might keep each of those asset bundles in three separate Series LLCs.

Texas is a very business-friendly environment compared to most other U.S. states, and the Series LLC is another tool Texas offers to help make your business and investment activities a little easier. If you have questions about how the Series LLC can work for you, give us a call. We can help you make the Texas Series LLC and its extra layer of liability protection happen!

Chain Migration and the Priority Date

by Jen Green, Burch Law

For any of you who have already immigrated to the United States and petitioned for relatives to join you here, you know that the wait for a priority date to become current can be exceedingly long. And the levels of paperwork and effort involved are strenuous, especially if you try to navigate the process on your own without an experienced immigration attorney.

For applicants from certain countries with high levels of immigration to the U.S., and for certain employment- or family-based categories of potential immigrants, those waits can be half a lifetime or more. And priority dates backlog and become current in a rather arbitrary pattern. Some years ago, there was a specific category where if someone had petitioned for a young relative, by the time their priority date became current, the person would have already been dead for 50 years (based upon then-average government processing times in that category and an average lifespan). Fortunately, that category later became somewhat more current.

Somewhat. Let’s look at some of the current wait times for family-based immigrant petitions. Current “final action” priority dates for married sons and daughters of U.S. citizens, and for brothers and sisters of adult U.S. citizens are in the 10/01/1994 – 11/08/1997 range for people from the Philippines and from Mexico, for example. By the time some U.S. citizen petitioners hear from the government that visa numbers are available for their relatives, both they and their relatives may well have forgotten that the petitions were ever filed. In effective, the chain of migration builds up a lot of rust during the interim between filing and actual immigration to the U.S.

Another snag in the process is that there are limited numbers of visa numbers available in any given year for each category. The two categories mentioned in the paragraph above have 23,400 and 65,000 visa numbers available respectively, and those numbers are not specific to any one country, but to all of them together.

You may have been hearing more about chain migration in the news lately. The administration wants to curtail chain migration. The argument actually makes a certain amount of sense, as no country can sustain unlimited immigration. It’s an argument based on numbers, very similar actually to the argument I run across quite often in dealing with cat rescue: pet advocates recommend neutering your cat or dog because one female cat, for example, left unchecked to reproduce, could produce 100 kittens in her reproductive life, and a single pair of cats and their kittens could produce more than 420,000 kittens in just 7 years. (Fayette Humane Society: That’s way more cat litter than anyone really wants to deal with. Even at the lower end of the spectrum of estimates, you still get nearly 3,000 cats. (Unspayed Cat to Kitten Calculator: Still a lot of cat litter.

So, migration is basically a numbers game. In a numbers game where the chain might be cut off at any time, it is very important to get into the queue while you still can. If you are a legal permanent resident or a U.S. citizen with close relatives abroad whom you would like to bring over, file those petitions for them now. Get a priority date while you still can. We can help. The wait may be long, but at least you and your family members would be on the list.

What Your Bank Isn’t Telling You About Your Estate Plan

I often have to unravel misinformation for my clients when it comes to Wills, estate planning, and probate. Perhaps this is most common when it comes to banks. While bankers are not attorneys, they are often put in the position of navigating the legal world of estate planning and probate. It is vital that clients are informed for when, not if, they receive confusing information from a well-meaning banker.

Here are a few keys points to know:

  1. Powers of Attorney: A power of attorney is ONLY valid while you are alive. It is incorrect to ask for a power of attorney in the event of death.
  2. Account Options: You are not always given the advice on how you want to own your accounts. Every bank has its own policies, but here a few generalities to understand:
    • “Putting someone” on your account can mean a lot of things. Did you add him or her as someone who only has access while you are alive, but no ownership interest – somewhat like an internal power of attorney? Or did you add him or her as an account owner, meaning such individual has ownership interest? Or maybe you added someone as a “POD (pay on death)” or “TOD (transfer on death)”, which would only be distributed upon death? There is no right or wrong way to set up your account – the only concern is what is your intent? A POD or TOD overrides a Will, so if you’ve named someone with the desire to assist with your estate, you actually gave such individual a gift with no obligation on how your money is used.
    • Additionally, accounts set up by one or more persons as joint tenants with rights of survivorship will pass to the surviving account holder or holders. Not all joint accounts pass to the survivor. When joint accounts are set up as tenants in common, the portion of the account that was owned by the decedent passes under his or her Will.
  3. When an Account Holder Dies: Perhaps nothing baffles banks more in my experience than when a customer dies. Whether you have a Will, living trust, or nothing at all, the information many of my clients receive is completely contradictory. Often an individual is told they can just do a sworn statement filed with the court called a “Small Estate Affidavit” to transfer an account. Without knowing A LOT more about the estate, there is no way to make such a claim. First, if there is a Will, you cannot use this document. Second, with the exception of the house and some other exempt property, the total assets cannot exceed $50,000…and any debts cannot exceed the value of the estate either. Another misunderstanding is that a Will does have to go through probate BEFORE an Executor can act or have access to any funds. I could write a great deal more about how accounts are settled upon death, but suffice it to say, reach out to an attorney BEFORE you go to the bank when a loved one dies.

There are many other issues when it comes to financial accounts that can conflict with your intent. If you’d like to review your accounts, please let me know. I’m here to navigate the murky waters of Wills, estate planning, and probate!

Parents: Your Kids Need Legal Planning Once They Turn 18!

Did you know that once your children turn 18, you will not have automatic rights to make legal and medical decisions for them? You won’t even have access to medical information in case of an emergency! That’s right, once someone is of legal age, no one, not a parent, not a spouse, has automatic legal rights. Once many parents realize this, they have their kids rush in to sign legal documents, especially before they go off to college.

Here are some of the most important documents to consider:

  1. Medical Power of Attorney – A Medical Power of Attorney (or Durable Power of Attorney for Health Care) designates an agent to make medical decisions if you are unable to make them.
  2. Medical Record Release (HIPAA) – A HIPAA Release Authority is a document that specifies who may have access to your medical records.  For example, most clients will name the same individuals as in their Medical Power of Attorney so that they may have access to your medical records if they have to make medical decisions on your behalf.
  3. Financial Power of Attorney – A Statutory Durable Power of Attorney (or financial Power of Attorney) designates an agent to make financial decisions and control property on your behalf.  A Power of Attorney gives great financial responsibilities.  For example, if you are in an accident and are in the hospital, your agent could help pay your bills and manage your financial affairs in your absence.

There may be other planning that is necessary for your children, which is why it’s vital to consult a qualified attorney to guide you through your specific circumstances. There are other considerations as well in the event your child has a bank account or a vehicle. You may want to ensure that financial accounts are set up with pay on death clauses (POD) or with rights of survivorship to allow a parent to have access in the event of death.

These do not have to be complicated or expensive matters to address. While no parent wants to think of their children being hospitalized, disabled, or dying, it is possible and creates additional heartache to be powerless to act for your child.

For more information, watch our informational video: