Welcome Angela Shimek Valis to The Firm

Posted by on Jul 1, 2016 in Uncategorized | 0 comments

We are pleased to announce the addition of Angela Shimek Valis to our firm as an associate attorney.

Mrs. Valis comes to us from Gonzales Texas where she was a partner in the firm of Reese, Escobar, Valis & Symms, LLP.
She is married to Garrett Valis who coaches at Sam Houston State University girls softball.

Mrs. Valis is a native of Shiner, Texas. She attended Texas A&M University where she attained her Bachelor of Arts degree in Speech Communication, graduating magna cum laude with both University Honors and Foundation Honors. After leaving Aggieland, Angela earned her Juris Doctorate at St. Mary’s University School of Law in San Antonio, Texas.

While at St. Marys, Angela was Editor-In-Chief of The Scholar: St. Mary’s Law Review on Minority Issues. Upon graduation from law school, she received the “Law Student of the Year Award” from the National Association for Women Lawyers.

Angela has experience in Real Estate, Trademarks, e-Discovery, Business Organizations, Wills & Estate Planning, Probate, and Oil & Gas.

Please help us in welcoming Angela to our practice.

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Worries of the Sandwich Generation

Posted by on Jul 1, 2016 in Estate Planning, Uncategorized | 0 comments

THE LEGAL CORNER

By Sam A. Moak

Worries of the Sandwich Generation

The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

The Sandwich Generation is getting worried. Who are they? Adults stuck between young children and older parents, both of them requiring the adult’s supervision and/or financial care.

What are they worried about? Well, a lot of things, but in specific: how to pay for their parents’ medical care now while also planning for their own future long-term care costs. (Not to mention taking care of the little kids too.) According to a new Associated Press poll, nearly 10% of adults age 40 or older are currently supporting at least one child while also providing regular care for an older relative. In other words, they’re “sandwiched.” Understandably, that gives rise to financial fretting.

Unfortunately, the worrying doesn’t seem to translate to action. The same poll finds that 54% of those sandwiched Americans have done “little or no planning.” Worrying but not planning is a recipe for unhappiness and misfortune. Proactive measures are surprisingly easy to take, and they can afford you tremendous peace of mind — not to mention a better forecast for the future. So why not make those next steps? Or at least look into them?

You might say, “Sam, we don’t have kids.” Procrastination is common across all walks of life, but studies show that those without children are the most likely to postpone planning for the future. That’s curious, given that providing for one’s progeny accounts for only one small part of a comprehensive estate plan.

No one is immune from worst-case scenarios. Being childless doesn’t make you any less likely to suffer from sudden tragedy, nor does it make the legal realities of what will happen after a tragedy any less complex. In other words, an estate plan is equally important for all adults, regardless of whether they have kids. Just this week a friend of our family had a younger brother working on some playground equipment and a pipe swung, hitting him in the head. He is now in ICU and facing a tough battle.

That’s an unsettling thought and an uncommon scenario, but it makes a point. None of us know what tomorrow may bring. Should we end up in an accident, we may face urgent healthcare decisions, choices we may no longer have the capacity to make. And should we unexpectedly perish, we will have assets that must pass to someone else. If today were your last day on earth, who would get your stuff? When it comes to what you’ll leave behind, there are only three buckets: Uncle Sam, charity, or individuals. Generally speaking, Uncle Sam is the least appealing. That concern is as pressing for the young and childless as it is for parents.

I urge you, whether you find yourself taking care of parents and young children or even if you have no children, make the time to sit down with an attorney experienced in estate planning. Such an attorney should be trained and familiar with estate planning and probate. The advice they provide will assist you in making the best and least complicated plan to take care of both parents and children if that is the need.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

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IS A CHANGE TO THE ESTATE TAX ON THE HORIZON?

Posted by on Feb 6, 2015 in Estate Planning | 0 comments

“THE LEGAL CORNER”

By Sam A. Moak

IS A CHANGE TO THE ESTATE TAX ON THE HORIZON?

The information in this column is not intended as legal or tax advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

Well President Obama has come out with a comprehensive plan for changes that could take away many of the strategies that save families estate taxes.  Annual exclusion gifts, generation skipping trusts, grantor retained annuity trusts (GRATs) and many more estate tax vehicles are in his target.  Obama would like to turn the clock back to 2009 when the estate tax exemption was $3.5 million per person (currently $5.43 Million), the lifetime gift/GST exemptions were just $1 million per person and he wants to raise the estate tax rate (currently topped at 40%).

This all seems to boil down to our government’s inability to manage money.  Obama sees these changes as an opportunity to bring in an estimated $214 billion dollars over 10 years.  Just reverting how estates and gifts were taxed in 2009 would bring in $189 billion of that.  Republicans are not on board with this and are actually still trying to kill the federal estate tax entirely.  Let us hope they prevail.

The proposal to restrict GRATs has been around awhile.  This is a type of trust in which you can put an asset you expect to appreciate a lot, and any appreciation over a low Internal Revenue Service hurdle rate (just 2% for February 2015) goes to the heirs tax free.

Another proposal that could impact life insurance needs is a so called “simplification” of the gift tax exclusion for annual gifts.  Currently individuals can make a gift of $14,000 to as many people as he/she wants without having to worry about estate or gift taxes.  However, under the new proposal, a $50,000 overall limit for certain gifts such as transfers to trust or family limited partnerships would be put into place.  If this is enacted, then the change would limit life insurance trust planning through irrevocable life insurance trusts to $50,000.

Another very troubling proposal is the elimination of the stepped up basis.  When property is passed upon death to another, then the basis (cost) of the property passed is “stepped up” to the current fair market value.  This eliminates years and potentially thousands of dollars in gain.  Thus, when the property is sold by the heirs they have to pay a greatly reduced capital gains tax.  Elimination of the stepped up basis would me heirs have to pay more capital gains tax.  Oh, and yet another of Obama’s proposals is to increase the capital gains tax from 20% (it has already been increased from 15%) to 28%.

The estate tax related matters I have discussed are not the only items targeted, here is a list of more:

Limiting the Duration of the GST tax exemption

Limiting certain tax expenditures like home mortgage interest by capping their value at 28%

Close the S corp payroll tax loophole

Repealing Coverdell education savings accounts

Repealing workplace child and dependent care spending accounts

And for those college sports fans, eliminating the deduction for charitable contributions that entitle donors to a right to purchase tickets to sporting events.

You should always keep an eye on what your government is doing, particularly with your money and taxes.  Do not rely on this article, but instead watch what is going on and seek the assistance of a tax professional like your CPA.

If you have a question regarding Elder Law, Estate Planning, Living Trusts or Probate in the Huntsville area, please contact us at 936-295-6394 or visit our website. Call today and we will connect you with an experienced Elder Law and Probate Attorney. We can schedule you a face to face appointment to discuss your circumstances. If you have questions or are considering any aspect of your estate plan, probate, your health care directives, etc. we can help! Call us now at 936-295-6394 . We look forward to hearing from you and assisting you with any and all elder law and estate planning needs.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

www.moakandmoak.com

 

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Medicaid Estate Recovery Program MERP

Posted by on Aug 22, 2014 in Elder Care Law, Estate Planning | 0 comments

“THE LEGAL CORNER”

By Sam A. Moak

Medicaid Estate Recovery Program MERP

The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

There is no free lunch. These words ring true when it comes to Medicaid. Since 2005, the state is allowed to recover some of the Medicaid money spent on individuals by tapping patients’ estates after they die. In most cases, the most valuable asset is the home.

On March 1, 2005, Texas implemented the Medicaid Estate Recovery Program in compliance with federal Medicaid laws. The program is managed by the Texas Department of Aging and Disability Services.

Under this program, the state may file a claim against the estate of a deceased Medicaid recipient, age 55 and older, who applied for certain long-term care services on or after March 1, 2005. Claims include the cost of services, hospital care, and prescription drugs supported by Medicaid.

The Texas Health and Human Services Commission may not file a claim if one of the following conditions exist:

There is a surviving spouse.

There is a surviving child or children under 21 years of age.

There is a surviving child or children of any age who are blind or permanently and totally disabled under Social Security requirements.

There is an unmarried adult child residing continuously in the Medicaid recipient’s homestead for at least one year before the time of the Medicaid recipient’s death.

An undue hardship waiver may be filed when:

The estate property is: a family business, farm, or ranch; is the primary income producing asset of the heirs; produces at least 50 percent of the livelihood for heirs for at least 12 months prior to the death of the Medicaid recipient; and recovery by the state would affect the property and result in heirs losing their primary source of income.

Beneficiaries of the estate will be eligible for public or medical assistance if recovery claim is collected.

Allowing one or more heirs to receive the estate enables them to discontinue eligibility for public or medical assistance.

The Medicaid recipient received medical assistance as the result of being a crime victim.

Additionally, the Medicaid Estate Recovery Program claims will only be filed when it is cost-effective. Claims that are considered not cost-effective are those where:

The value of the estate is $10,000 or less.

The recoverable amount of Medicaid costs is $3,000 or less.

The cost of the sale of the property would be equal to or greater than the value of the property.

For more information you can log onto the Texas Health and Human Services Commission website at www.dads.state.tx.us

Remember, nothing from the government comes for free. There are always strings attached and before you blindly apply for Medicaid, know all the facts so that you can make an informed decision. There are a lot of myths and untruths out there about Medicaid, seek legal advice from somewhere other than the coffee bar.

If you find yourself in the age group of 50 to 70 you should start researching long-term care insurance. The younger you are when you apply the better. Why should you consider buying long-term care insurance? The most common reason is to insure against impoverishment. However, you may just want to ensure that you do not have to use any of your life savings or assets to pay for your living expenses. Finally, you may want to leave an inheritance to your children or grandchildren. Another common belief is you can’t take it with you, so you might as well spend it all before you go. Your choice to purchase long-term care insurance can only be determined by your personal values and goals.

I hope the information provided here is helpful. If you have any questions regarding this, please consult with an attorney.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

www.moakandmoak.com

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ENSURE YOUR FINANCIAL PRIVACY

Posted by on Jul 25, 2014 in Articles, Uncategorized | 0 comments

 

“THE LEGAL CORNER”

By Sam A. Moak 

ENSURE YOUR FINANCIAL PRIVACY

The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

There is a federal law that affords consumers significant say over the privacy of their financial information while still allowing financial institutions to share information for normal business purposes. This Act covers banks, savings and loan institutions, credit unions, insurance companies, securities firms, and even some retailers and automobile dealers that extend or make arrangements for consumer credit.

There may be more forms of personal information gathered by the institutions than you realize. They may have credit reports and records of how much you buy and borrow, where you shop, and how well or poorly you pay your bills on time.

The Act protects your financial privacy in three basic ways: First, in a privacy notice, the institution must tell you what kinds of information it collects and the types of businesses that may be provided with it. Institutions must send out a privacy notice once a year. Second, if the institution is going to share your information with anybody outside its corporate family, it must give you the opportunity to “opt out” of that kind of information sharing. The third layer of protection requires the institutions to describe how they will go about protecting the confidentiality and security of your information.

A privacy notice from your bank may not be the kind of mail you rip open with eager anticipation, but you should take the time to look it over carefully all the same. Somewhere in the formal verbiage you should look especially for these items:

What kinds of information may be shared, both with affiliated companies and with outsiders? Don’t expect great specificity on this in the notice itself. The Act requires only a description of basic categories of information, with some examples.

What information can you not prevent your financial institution from sharing? Recognizing some circumstances in which the institutions should be allowed to share financial information with outsiders without the consumer’s consent, the Act does not allow you to stop the sharing of information that is needed to help conduct normal business (such as for outside firms that process data or mail statements); to protect against fraud or unauthorized transactions; to comply with a court order; or to comply with a “joint marketing agreement” entered into with another institution.

How do you go about “opting out” of the sharing of information of outside entities? Sounds simple enough, but the institution may require you to exercise this option by calling a specific phone number or by completing a form and mailing it to a particular address. If you opt out by phone, to be safe you may want to follow up with a written version, keeping a copy for your records.

Our privacy rights are particularly sensitive, especially when dealing with finances. Take the time to carefully read the notices you are sent and make sure you are protecting your privacy. It should reduce the number of solicitors and may prevent the theft of your identity.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

www.moakandmoak.com

 

 

 

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Co-Owning Property in Texas May Have Unforseen Issues

Posted by on Jul 11, 2014 in Real Estate | 0 comments

sam-moak

“THE LEGAL CORNER”

By Sam A. Moak

Co-Ownership of Property in Texas

The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

 Occasionally I run into situations between unmarried individuals owning property together. This can be a result of two or more people purchasing property together, but more often it is a result of two or more people inheriting property from a deceased individual.

Attorneys often face co-ownership issues when advising on inheritance and probate avoidance. Inheritance in such cases may be determined by express language in a deed or a last will and testament, or in the absence of either, by intestacy provisions of the Estates Code. In some circumstances a co-owner may have no survivorship rights at all.

Texas real estate may be owned individually or jointly. Joint owners are called co-owners or cotenants, and the

relationship is known as a cotenancy. Texas law recognizes three forms of cotenancy: community property, joint tenants with the right of survivorship (JTWS), and tenants in common (TIC). In this article I will focus on TIC.

Co-ownership, regardless of the type, gives each cotenant the right to use, occupy and possess each part of the property, but not exclusively. Cotenants may not exclude other cotenants from possessing, using or occupying the same part or parcel. This undivided right of possession forms the basis of the cotenancy relationship. Cotenants may terminate the cotenancy at any time by

partitioning, which changes co-ownership to sole ownership. Partitioning divides the property according to value, not area, and may occur voluntarily or judicially. Voluntary partitioning requires an agreement among the cotenants to divide the property in a certain manner. After

exchanging deeds, each former cotenant owns a certain parcel outright.

 Judicial partitioning, on the other hand, is done by the court. If the court finds the property cannot be divided fairly and

equally, it orders the property to be sold with the proceeds divided among the owners according to their undivided interests. Judicial partitioning is a time-consuming, expensive process. Cotenants have the right to transfer their undivided interests to a third party without the other cotenants’ consent.

 Although co-owners share the nonexclusive right to use and possess the property, the legal relationship ends there. No cotenant is a legal partner or agent of the other. Except in limited circumstances, no cotenant has the authority to bind another cotenant to an agreement or a debt. No fiduciary duty exists among the cotenants unless an express agreement exists. However, cotenants do share some responsibilities.

This is often where problems arise between cotenants.

 Individually and collectively, cotenants have a duty to protect and preserve the property. A cotenant who expends funds

for this purpose is entitled to reimbursement from the others for their proportional share. Equity gives the cotenant making the expenditures a lien on the property to enforce repayment.

 Similarly, cotenants have a duty to preserve and protect the property from waste. Waste constitutes the unauthorized or wrongful destruction or severance of improvements, trees, minerals or other tangible property from the property. Waste does not include ordinary wear and tear. The party committing the waste becomes liable to the others for damages.

 Cotenants are responsible for the payment of a common debt, such as the mortgage and property taxes. A cotenant paying a disproportionate share of these debts may recover the costs from the others. Again, equity holds each cotenant equally liable, and all are bound to contribute proportionately according to their undivided interest. This raises some questions. Assume one cotenant pays all the property taxes for years and the others refuse to reimburse him or her. Rather than sue, the cotenant quits paying the taxes and purchases the property at the tax foreclosure sale. Does this give the cotenant sole title to

the land? The answer is no. Texas law presumes a cotenant purchasing the property at a tax sale does so for the benefit of all the cotenants. The purchaser simply reinstates the cotenancy relationship as it existed before the tax sale.

 Today’s column states just a few examples of the issues that can arise in cotenancy. Therefore, if you find yourself in a cotenancy relationship that is not working out, then you should consult an attorney for assistance.

 Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

www.moakandmoak.com

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FREQUENTLY ASKED QUESTIONS ABOUT GUARDIANSHIPS

Posted by on Jun 27, 2014 in Elder Care Law, Family Law | 0 comments

“THE LEGAL CORNER”

By Sam A. Moak

Frequently Asked Questions About Guardianships

 The information in this column is not intended as legal advice but to provide a general understanding of the law. Some of the information in this column was prepared by the State Bar of Texas and is reprinted in this column with permission. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

 While I am an advocate for the use of a Power of Attorney to avoid guardianships, I realize there are times when a guardianship cannot be avoided. Therefore, in this week’s column I will address some of the more frequently asked questions regarding guardianships.

How does one go about initiating a guardianship?

Any interested party may file an application with the proper court requesting that a guardian be appointed for a person believed to be incapacitated.

 What is the definition of an incapacitated person?

A person may be found to be incapacitated if due to a mental or physical condition he or she is unable to: (1) provide food, clothing, or shelter for himself or herself; (2) care for his or her own physical needs, or (3) manage his or her own financial affairs. A finding of incapacity will allow the person to be placed under guardianship. A minor person (someone under 18 years of age) and missing persons are also considered to be incapacitated.

Once a guardian is appointed, does the incapacitated person lose all rights and powers?

Not necessarily. A judge may appoint a guardian for an incapacitated person, but limit the guardian’s powers so that all rights and powers except those granted to the guardian are retained by the incapacitated person.

 Who may serve as guardian?

The court will appoint a guardian for an incapacitated person in the following order of priority: (1) the incapacitated person’s spouse; (2) the person’s nearest kin; and (3) an eligible person who is best qualified to serve.

 Do the types of guardians vary?

Yes. Generally, there is a guardian of the person and a guardian of the estate. The guardian of the person has the duty and power to provide the incapacitated person with clothing, food, medical care, and shelter. The guardian of the estate has the duty and power to manage the incapacitated person’s financial affairs. One person can fill both positions.

 Who is not allowed to serve as guardian?

A person may not be appointed guardian if the person is a minor, a notoriously bad person, an incapacitated person, a person who is a party to a lawsuit affecting the incapacitated person (with some exceptions), a person who owed the incapacitated person money, unless it is repaid, a person with adverse claims to the incapacitated person or his property, an inexperienced or uneducated person, a person the court finds unsuitable, a person eliminated in a person’s designation of guardian, or a nonresident without a resident agent.

 Are there costs involved in a guardianship?

Yes. Obtaining a guardianship involves filing a lawsuit regarding a person’s rights and is therefore typically, very costly. These cost include attorney’s fees, filing fees, attorney ad litem fees, and bond premiums to be paid out of the incapacitated person’s estate.

What rights are retained by the incapacitated person?

The incapacitated person has the right to receive a copy of the application for guardianship and other documents filed with the County Clerk. He or she is also entitled to be at the hearing to determine whether he or she is incapacitated.

Is an alleged incapacitated person represented by an attorney?

Yes. When a guardianship is filed, the court appoints an attorney ad litem to represent the interests of the alleged incapacitated person. The person can also retain his or her own attorney.

What happens at a guardianship hearing?

The person who filed the application must prove the incapacity through testimony and medical evidence. The alleged incapacitated person has a right to bring his or her own witnesses to court and also the right to speak to the judge. The alleged incapacitated person may also request a jury trial. The judge or jury will determine if the person is incapacitated.

How soon can a guardianship hearing be held?

The earliest date to schedule a hearing is the Monday following the expiration of 10 days after the alleged incapacitated person has been personally served with the application of guardianship.

Upon appointment, how does a guardian qualify?

The guardian must file an oath and post a bond in the amount set by the court to insure proper performance of his or her duties.

Does the guardian have reporting requirements to the court?

Yes. The guardian of the estate must file an inventory within 30 days of qualifying. The inventory must list all assets of the incapacitated person coming into the guardian’s hands and all debts owed to the estate. The guardian of the estate must file an annual account to report all receipts and disbursements. The guardian of the person must file an annual report on the location, condition, and well-being of the incapacitated person.

What if there is an immediate need for the appointment of a guardian?

A temporary guardian can be appointed without notice to the proposed incapacitated person if his or her person or property is in imminent danger. Usually a temporary guardianship will not exceed sixty 60 days. However, if a permanent guardianship application has been filed and is contested or challenged, the court may appoint a temporary guardian to serve as temporary guardian until the contested guardianship action is resolved.

Does the person for whom a temporary guardianship has been appointed have any rights?

Since that person is not presumed to be incapacitated, he or she retains all rights and powers not granted to the temporary guardian. He or she is entitled to be served with a copy of the documents that are filed. The court must appoint an attorney to represent the alleged incapacitated person. The court must hold a hearing no later than ten 10 days after the date of filing the temporary guardianship to determine whether there is a need for continuation of the temporary guardianship.

Pursuing a guardianship for a loved one can be a difficult process, emotionally and legally. An attorney can assist you in determining if a guardianship is appropriate for your particular situation. If you have further questions or are considering a guardianship for a loved one, you should consult your attorney.

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

www.moakandmoak.com

 

 

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