TOP 5 Estate Planning/Probate Mistakes

These are my top five I have seen in doing probate and estate planning.
1. I don’t have enough money for it to matter/Can’t I avoid probate?
There are provisions where you can get sometimes get by without opening an administration but why risk it? If you have debts an administration will be needed. If there is real estate there will need to be an administration. Texas probate is not as bad as you have been told. As much as I enjoyed Bleak House by Dickens where the entire estate was consumed by legal costs, Probate in Texas is much easier. With a properly executed will the duties of the executor are generally simple and not costly.
2. I can do it all myself with stuff off the internet or a form book. You may be able to. However, there are pitfalls in the probate code that flumox even experienced attorneys. Every estate has a different set of needs. An attorney familiar with the process can more effectively draft a plan to accomplish your goals.
3. Failure to account for the entire estate. It’s important to account for everything and understand where it will go under your will. I often draw flow charts to help clients visualize where everything will go. Often, clients will forget collections and personal items that they want to pass on to specific heirs. Do you have jewelry, collections or family heirlooms that you want to pass on? Are there mineral rights or royalties you have forgotten? You should talk to your attorney about these items and plan who will received these assets.
4. Failure to plan for incapacity. This is not a fun area to discuss, but there is a real chance that you or someone in your family may face long term incapacity. There is a court proceeding called guardianship, covered in a previous post, which appoints someone to make decisions for you. A court appointed guardian can handle financial matters, make health decisions and generally take care of the daily decisions that an incapacitated person needs. A good estate plan, however, will include documents appointing persons to handle these duties without the need for court intervention. You can decide who will care for you in the event of incapacity. More important in some families, you can decide who you do not want to make these decisions for you.
5. Failure to have an advanced directive or Living wills. The nation saw what a worst case advanced directive or living will scenario could be like in 2005 with the Terry Shiavo case. End of life decisions that should be personal and private, were debated by the entire nation, in congress and in courts. In Texas, one can complete a simple form that makes your end of life wishes clear. Had Terry Shiavo had this simple form the controversy surrounding her case would have been avoided. Because of the attention that end of life issues are getting as part of the health care reform agenda, I’ll be covering the advanced directive in greater detail in a later post.

So those are my top 5. I recommend talking about your plan with your attorney and your family prior to needing it. No one likes to think about these matters but planning ahead makes these transitions easier for all involved.

New Mechanic's Lien Bill HB 346

Over the last few years the Texas lege has made numerous revisions to Texas lien law. Mechanic's and Materialman's liens are an essential part of the the construction process. Liens give even a low level subcontractor a way to protect his or her rights on a job. I've filed numerous lien and been happy to have the lien procedure available. I'm always careful to review invoices, real property records and send the required notice letters. Not everyone is. A few years back there was a rash of bad liens filed as harassment. The legislature responded by granting civil and criminal penalties for erroneous liens. This was a great step to deal with abuse but drafting errors had the effect of subs paying for simple typographical errors. The last session fixed this problem making only bad faith filings subject to penalty.
Now in 2011, we have HB 246 filed by Rep. Kleinschmidt which amends the Property Code to allow attorney fees and costs to be awarded in a suit to remove an invalid lien. This is a great amendment of the code. Lien filers would be aware that invalid liens would be subject to removal at their expense. Valid liens would still serve to protect the rights of labor. This bill has left committee with a unanimous yes vote and has been sent for calendering so it looks like it is on track to pass. Hopefully the lege will, in some future session, streamline the lien process so that the deadlines and notice period is more comprehensible. I recently talked with a Louisiana construction lawyer who was shocked that anyone could work out Texas Lien law. He has a point. This new law would do a long way toward holding fraudulent lien filers accountable.