The Wright Firm's Weblog

What Happens If You Die Without a Will in Texas

If you die without a will in Texas, what happens to your estate? This is a question that brings much uncertainty, as well as many old wives tales. Contrary to the beliefs of many, the state does not take all your property. However, there are laws that govern the distribution of your estate. Your heirs don’t get to take what they want on a first come, first served basis.

When you die without a will, you are considered under the law to have died “intestate.” The Texas intestacy law clearly set forth rules for the distribution of your property, with the first distinction being made between what is considered community property and what is considered separate property. Under the community property laws of Texas, most property obtained during a marriage is community property and is considered to be owned by both spouses. Exceptions include inheritances, property received as a gift, or property obtained after a period of separation.

With respect to separate property, there are four different situations that can occur:

• A person may die intestate (without a will) leaving separate property, and have a spouse and children. In this case, Texas law gives one-third of the property to the surviving spouse and divides the remaining property between any surviving children. The surviving spouse is also entitled to one-third of any separately held land for life, with that property passing to children on death.
• A person dies without a spouse, but with children. In this circumstance, the property is divided equally among the children.
• A person dies intestate leaving a spouse, but no children. In this case, the spouse is entitled to all personal property and a one-half interest in real property for life. The remaining one-half interest in real estate goes to the parents of the deceased or, if one of the parents is no longer living, one-half to the living parent and one-half divided among all living siblings. If no parent survives the deceased, the one-half share is equally divided among all surviving siblings.
• A person dies without a spouse or children. This is the most complex case under the Texas intestacy laws:
  • If both parents survive the deceased, they receive the estate in equal portions
  • If only one parent survives, one half of the estate goes to the surviving parent and the remaining half is divided among all living siblings
  • If there are no surviving siblings, all property goes to the surviving parent
  • If there are no surviving parents, all property is divided equally among all living siblings
  • If no parents or siblings survive the deceased, the property is divided in two equal parts, with one part going to paternal relatives and the other part going to maternal relatives, as follows:
    • in equal portions to the grandmother and grandfather, if living
    • if only one grandparent survives, then half to the surviving grandparent and half to be divided equally among the descendants of the deceased grandparent
    • if neither grandparent survives, then to the nearest lineal ancestors, but never to the state

With respect to community property, the rules are much simpler, as property can only pass if there is a surviving spouse. Here are the rules:

• If there were no children of the marriage, the entire community property estate goes to the surviving spouse
• If the deceased had children who were also the children of the spouse, all property goes to the spouse
• If the deceased had children who were not children of the surviving spouse, the surviving spouse keeps a one-half share interest in community property and the other half is equally divided among the descendants of the deceased

What Documents You Need to File Your 2010 Tax Return

So you have started receiving tax documents in the mail and have started thinking about what you need to be fully prepared to file your return. Here’s a handy checklist of all the information that you will want to have at hand, whether you prepare your own return or take your taxes to a professional.

1. Social Security numbers. You will want to obtain the Social Security numbers of any dependents, including spouses, children and others you plan to declare as dependents on your return.
2. Information about any income you received. You will need to provide records documenting income received from:
   • Employment, either in the form of a W-2 (for employees) or a 1099 (for independent contractors)
   • Investments, such as
     • Interest income: Form 1099-INT
     • Dividends: Form 1099-DIV
     • Proceeds from the sale of stocks, bonds, etc.: Form 1099-B
     • Schedule K-1 for investments in partnerships or corporations
   • State or local income tax refunds: Form 1099-G
   • Business or farming enterprises, including bank statements, cancelled checks, invoices or billings, payroll records and balance sheet / income statements
   • Alimony payments
   • IRA, 401(k) or other pension distributions: Form 1099-R
   • Unemployment compensation: Form 1099-G from the appropriate state agency, or unemployment check stubs or deposit records
   • Rental Property
     • profit and loss statements
     • mortgage interest payments
     • property tax bills
     • checkbook or cancelled checks to document expenses
   • The sale of property
   • Social Security benefits: Form SSA-1099
   • Miscellaneous income, such as
     • Gambling and lottery winnings (Form W-2G)
     • Prizes or awards (Form 1099-MISC)
     • Scholarships received (if you used the money for anything other than supplies, books or the cost of your education)
     • Jury duty pay
     • Distributions from medical savings accounts (Form 1099-MSA)
     • Directors fees for serving on a corporate or other board
3. Information to support credits and deductions
   • Advance child tax credit - You will want the IRS notice identifying the amount of your credit
   • Child care costs - You will need
     • Name and address of child care provider
     • SSN or tax ID of the child care provider
     • Cancelled checks or invoices from provider
   • Adoption costs - To take the adoption credit or deduct costs of an adoption, you need the SSN or ID number of the adopted child and receipts / cancelled checks to support the cost of legal fees, transportation and other expenses
   • Education costs - You will want a copy of Form 1098-T showing how much tuition you paid, as well as receipts or cancelled checks for tuition
   • Interest payments, including Form 1098 showing the amount of mortgage interest paid, as well as broker or loan statements showing interest paid
   • Theft or casualty losses - You will want records with the description of any property stolen or damaged, as well as receipts showing the cost of the property. You will also want insurance reports indicating the amount of a reimbursement
   • Charitable donation - You need records of
     • cash donations
     • donations of property (with an estimated value of the property donated)
   • Job expenses, such as
     • seminar fees, professional publications, or tools and supplies needed for your job
     • travel information, including mileage, meal costs, hotel expenses and other fees
   • Medical and dental bills
   • Miscellaneous deductions
     • Union dues
     • Gifts to clients
     • Reimbursements from your employer
4. Information about Income Adjustments
   • Homebuyer credit information (Form 5405)
   • Green energy credits (Form 5695)
   • Medical savings account information
   • Moving expenses
   • IRA contributions
   • Student loan interest paid (Form 1098-E)
   • Self employed health insurance costs
   • Pension plan (Keogh, SEP, SIMPLE) contributions
   • Alimony expenses
5. Information about taxes you paid
   • Your last year's state and local income tax return
   • Real estate tax statements
   • Personal property tax bills
6. Other miscellaneous information you may need
   • A completed Form W-9 for any household employee you had last year
   • Information on any estimated or prior tax payments you made
   • Foreign bank information
   • Direct deposit information (if you want your return directly deposited)
   • The bill of sale for a hybrid vehicle if you want to take the appropriate tax break

When You Can File For Protection Under Chapter 7 of the Federal Bankruptcy Code

The two most common forms of consumer bankruptcy filings are Chapter 7 and Chapter 13 petitions. Under Chapter 7, also known as liquidation, you are allowed to permanently discharge certain debts in exchange for the sale of non-exempt assets. Some debts, such as child support arrearages, student loans, and certain tax obligations, may not be discharged in a Chapter 7 proceeding. Furthermore, you generally cannot rid yourself of any secured debt (like a house or car), and still keep that property. With a Chapter 13 bankruptcy, also known as reorganization, you enter into new payment arrangements with your creditors, generally agreeing to repay debts over a three-to-five-year period. Whether you seek protection under Chapter 7 or Chapter 13, you are entitled to the benefits of the automatic stay, which prohibits creditors from calling, writing or taking legal action against you (outside of the bankruptcy proceeding) to collect the debt.

Before the 2005 revisions to the bankruptcy laws, there were few restrictions on who could file for Chapter 7 bankruptcy. One of the goals of the new law was to reduce the number of cases where debtors simply walked away from large amounts of debt. As a result, lawmakers changed the eligibility requirements for Chapter 7, mandating that anyone seeking to permanently rid themselves of debt submit to a “means test.” Under the means test, you must provide the bankruptcy court with information about assets, income and obligations, so the court can determine whether you have the financial “means” to repay your creditors.

The means test is applied based on information unique to the state in which you live. When conducting the means test, the court will look at your average income for the six month period before you filed for bankruptcy and compare it to the median income in your state. If you are below the median, you automatically qualify to file under Chapter 7.

If your average income exceeds the median income for your state, the court will look at other factors, starting with a careful examination of your discretionary income. To determine this figure, the court will subtract your living expenses from your income and multiply it by 60 (the amount of extra income you would have over a five year period). If the funds available for debt reduction exceed $10,000 ($166.66 per month), you may only file under Chapter 13. If the amount available for debt repayment is less than $100 per month, you may file under Chapter 7.

If your discretionary income falls between $100 and $166.66 per month, your eligibility for Chapter 7 is determined based on the percentage of your discretionary income to your debt, with 25% as the cutoff. If your discretionary income over 60 months exceeds 25% of your debt, you must file under Chapter 13. If it is less, you can file under Chapter 7.

You may also be ineligible to file for Chapter 7 if you have previously discharged debt in a bankruptcy proceeding. A debtor cannot eliminate debt under Chapter 7 within 8 years of the discharge of debt in another Chapter 7 proceeding.

Point of Law: Duty to Report Family Violence in Texas

Did you know that there is no mandatory duty on the public to report family violence unless the violence is inflicted on a child.  The State of Texas encourages any individual who witnesses family violence to report the family violence to a local law-enforcement agency.  If medical professionals included doctors, nurses, and emergency medical technicians treat a person for injuries that they believe were caused by family violence, they are required to advise the person of the nearest family violence shelter, document the file regarding the potential family violence, and give the person notice about the legal implications of family violence.

This point of law has been brought to you by The Wright Firm, L.L.P.  If you have questions, contact our office at 972-353-4600 or reach us by the web at www.thewrightlawyers.com.

 

 

Lawyer vs. Attorney: Is there a difference?

What is the difference between a lawyer and an attorney?  People tend to use both terms in every day use. According to several articles and dictionaries, a lawyer is someone who has been trained in the law and who can give legal advice.  An attorney is somebody legally empowered to represent another person or act for them. The conclusion: They are the same. 

Is Law School a Losing Game?

I am not sure if you have read the David Segal, January 8, 2011 article in The New York Times but it is an interesting read.  The article explains that law schools are painting a rosy and upbeat picture for new graduates regarding their potential for hire.  Think about the picture that some law schools are painting. You wouldn’t mind paying the high tuition fees if you were going to get a high paying job. However, “Enron-type of accounting standards have become the norm,” says William Henderson of Indiana University, who as the article explains is one of many exasperated law professors who are asking the American Bar Association to overhaul the way law schools assess themselves.  And listen to this fact, according to the article, a law grad, counts as “employed after nine months” even if he or she has a job that doesn’t require a law degree.   The article states that if you are waiting tables at Applebee’s, you are employed.  David Segal paints a picture of law schools being cash cows for their universities with low overhead and high professor to student ratios.  The sad fact is that if you want to become a lawyer, going to law school is the ticket that you have to buy to ride the ride.

 

Who is a Permanent Resident in terms of Immigration?

PERMANENT RESIDENCE GENERALLY

 

If you want to go into the United States legally for work, have an interest in receiving legal permanent residence or are facing deportation we can assist. At The Wright Firm, L.L.P. we handle a whole assortment of immigration legal issues. We work to offer effective immigration legal services for our clients.


A permanent resident can be a foreign national that has been granted authorization to reside and work in the United States on a permanent basis. As proof of that status, a person is granted a permanent resident card, generally called a "green card." Foreign nationals can obtain permanent residence by way of sponsorship by an immediate family member that is already living in the United States, or by an employer.
The first step in the permanent resident process is for a family member or supporting employer to file an immigrant petition with the United States Citizenship and Immigration Service (USCIS) with respect to the foreign individual. Unless the individual is an “immediate relative,” an immigrant visa number must be available. The Department of State must determine whether an immigrant visa number is immediately available to an individual, even if the individual is currently in the United States. As soon as an immigrant visa number is immediately available, an individual may apply to have one of the immigrant visa numbers assigned to them. A visa number might not be immediately available even when USCIS approves the petition, because the amount of immigrant visa numbers is limited by quotas placed in the Immigration and Nationality Act (INA). When an immigrant visa number becomes available, a person must either apply with USCIS to adjust their current status to permanent resident status or apply with the Department of State for an immigrant visa from the nearest United States consulate before being permitted to come to the United States. This is just some general information on a permanent residence for more information contact The Wright Firm, L.L.P. at 972-353-4600 or at www.thewrightlawyers.com. 

 

What is a Managing Conservator in Texas?

A “managing conservator” in a divorce or family law context is generally given every one of the rights, privileges, duties and powers associated with a parent, to the exclusion of all other people, including the other parent, other than as otherwise ordered from the court. In a nutshell, the managing conservator is the primary custodian of the children, and (1) has the right to make most of the major decisions governing the children’s lives, (2) has got the primary physical possession of the children (custody) and (3) has the right to receive child support on behalf of the children. There are two kinds of managing conservators, “sole managing conservatorship” and “joint managing conservatorship”. 

 

Does Your Reputation Equal Currency?

 I have been fascinated by the idea that your reputation equals a form of currency.  In a news article in January, the reporter indicated that Justin Bieber was more influential online than the Dalai Lama or the U.S. President. Really!  My eight year old child would say Justine Bieber sings like a girl; but more influential than the Dalai Lama?  Now that says something.  As a lawyer we have always known the value of our reputations.  Open an office, do good work, and over time the people would show up at your door.  The game has changed.  Now, your reputation can be seen everyday of every second of every minute of the day on social media sites, blog reviews, and attorney review sites like Avvo.com. 

Have you viewed the twitter stream in real time to see if tweets mention you or maybe your competitors?  Have you hired someone to manage your reputation?  Do you care about any of this?  The management of your reputation is now of critical importance.  Social media site Klout at Klout.com,  based on Twitter, claims it can tell you who the most influential company or individual  you should be listening to in cyberspace based on tweets, pings, and hits. So, what do you think? Does your reputation really equal a form of currency? Let me know your thoughts?  

 

Texas Court Room Rules

Top 10 Texas Court Room Rules

 Have you ever been to court?  Unless you’re going to the court house for jury duty, appearing for one of your own hearings can be a very scary experience.    If you are scheduled to appear in a court in Dallas, Denton, Collin, or Tarrant Counties, here are some things you need to know.  Maybe you are appearing for your divorce or family law hearing, a contested probate case, a criminal hearing, or a final trial in a civil matter. 

 

Because judges have different preferences, and “courtroom custom” may vary depending on the county and the judge, the following is intended to provide a top 10 list of things you should know before you get to the court house:

 

1.      Always be prompt.  If your hearing starts at 9:00, you probably need to be there at least thirty minutes early.  For example, in a Denton Divorce case, your Denton County Divorce Attorney may want you at the court house even earlier because many times settlement negotiations will take place at the court house.  Do not be late!  The judge may not wait on you.  The judge will call the case at the time designated and if you are not there the judge will proceed and could dismiss the case if you are not in attendance or even worse the other side could get the relief that they are seeking.  Also, know where you are meeting your lawyer before the hearing. 

 

2.      Stand when the judge enters or leaves the courtroom. Being a judge is an extremely difficult job.  Judges must look at all sides and make as best of a decision in each case as possible. The things they have to see and hear about are horrendous. Standing is a simple sign of respect. We stand when we do the pledge of allegiance, or when the national anthem is being played. We stand when a bride walks down the aisle, or when the president comes into a room. 

 

3.      Do not make personal attacks on opposing counsel or the opposing side.  The other lawyer is just doing their job.  Remember the other lawyer is not going to decide your case.   Have the hearing in the court room not in the hall.

 

4.      Do not interrupt the Court or opposing counsel. Wait your turn.  I see this every day at the court house.   The judge will let you have your turn and will let you have a chance to respond to what the other side or the other lawyer is saying. 

 

5.      No children are allowed in the Courtroom during Court proceedings. The court house is not a day care.  There is no one to watch your children.  For example, if you have a Dallas Divorce case, why would you want your children to sit in the court room and have them listen to the complaints of you and your spouse.  One judge has even told me that if he sees that a party brings a child to the court house, without court permission, he is already thinking in his mind that you do not have your child’s best interest in mind. 

 

6.      No food, drinks, chewing gum, candy or tobacco products are allowed in the Courtroom.   For example, the Collin County Court house is paid for with tax payer money and is needed for the benefit of all citizens.   The request for no food or drink just ensures that the buildings will remain nice and clean for us all in the future.

 

7.      No hats, caps, shorts, tank tops, halter tops or provocative clothing (this includes wording, pictures and the manner in which the clothing is worn).  This really is a lawyer’s pet peeve.  As a Family Law Attorney in the Denton County Courts,  I  have personally taken clients shopping before a hearing.  You are not going to the spa, the beach, and you will not sway the judge by what you are wearing.   Years ago while up in the Denton County Courts, I witnessed a bailiff instruct a person to turn their “This Buds for You”  t-shirt inside out.  Remember this is also a sign of respect.   

 

8.      All pagers, cell phones or other portable communication devices must be turned to the off position. No communication devices shall be operated in the Courtroom. No audible sounds from the communication devices shall be permitted.  In many North Texas court rooms, if your cell phone goes off, it will be confiscated and not returned until you pay the fine for its return.  I have witnessed in the middle of my hearings the opposing party’s cell phone going off while they were on the witness stand.  Do we think that helps or hurts their case? 

 

9.      All talking shall be at a minimum while court is in session.  The judge cannot hear what is going on in the court room if everyone is talking.  If you want to talk to your lawyer, go out in the hall.

 

10.    All persons addressing the court and/or staff shall do so in a respectful manner (i.e. yes sir, no sir, yes ma’am, no ma’am).   Yelling at the bailiff, the court reporter, the court coordinator is never helpful or advised. 

             These are just a few guides that we tell our clients on a day to day basis.  At The Wright Firm, L.L.P. we have offices in Dallas, Denton, Collin, and Tarrant counties in North Texas.  We also handle family law and divorce, criminal matters, bankruptcy, probate and estate planning, immigration, and civil litigation.  If you have questions about this article or a case that you may have, please visit our website at www.thewrightlawyers.com or send me an email at [email protected] for more information.  Thank you for reading this article.