Sunday, March 30, 2014

Owning Property in Two Countries - What About Your Will?

When you own property in more than one country, you will need to be certain that you adequately prepare for this fact when working on your estate plan.

For instance, if you own property in Texas, Mexico and Italy, you cannot write a Texas will and assume that it will be good enough to transfer the property in the other countries too. Likewise, you should have a Texas will to bequeath your Texas property, rather than asking your heirs to try to probate a Mexican will here in Texas.

Ideally, you will have a will in each location where you own property. In fact, that may be the only way to transfer the property according to your wishes. 

If you have property in other countries, make sure that each attorney that is drafting a will for you knows the whole story. For instance, you don't want to sign a new will in the United States that contains language that states that it "invalidates all other wills signed prior" because you don't want to invalidate the will that you signed last December in Mexico.  However, specific language can be drafted which acknowledges your other property and other wills without a risk of invalidating them. 

In some cases, a foreign will can be used to transfer property but it doesn't always work.

An attorney who is familiar with the interaction of U.S. inheritance law and inheritance law from another country can help advise you.  

Since 1984

Monday, March 24, 2014

Ways to Handle Divorce are Still Evolving

The pre- 1970 divorce process in the United States was very different from the divorce process today.

In the old days, "fault" divorce dictated that divorcing parties have grounds for divorce, which lead to to couples accusing each other publicly of moral turpitude and misconduct, sometimes with no basis in fact.  Children also suffered greatly, and any possibility of a civil relationship between divorced parents was often impossible.

Then, in 1969 California Governor Ronald Reagan signed the nation's first no-fault divorce law. The trend continued over the next several years with other states following. The 1970s saw a dramatic increase in the number of divorces in the United States, with many people able to take advantage of the no-fault provisions to state that their marriage was over due to "incompatibility", without demonizing the other spouse.

Even so, for many years, the word "divorce" conjured up images of a nasty courtroom fight and the brutal rending apart of families.  Television shows ("Divorce Court"), movies ("Kramer vs. Kramer"), songs ("D-I-V-O-R-C-E")  acknowledged and emphasized the drama and conflict.

In the mid-to-late 1980s, another important change began to occur.  The Alternative Dispute Resolution movement bloomed and gathered momentum.   Training became available for attorneys and mediators to learn how to help parties in a divorce reach an agreement.  Parties could now debate and negotiate in good faith, face-to-face, with the assistance of professionals, in private.

The Alternative Dispute Resolution ("ADR") movement produced mediation (both voluntary and court-ordered), arbitration, and settlement conferences and these methods are regularly used today.

Now a new development has added another option to divorce practice. It is called the Collaborative Law movement. During the collaborative process, attorneys and other relevant professionals (such as therapists and financial professionals) work as a team and information is freely and honestly shared. If either party decides to terminate the collaborative law process and go "traditional", they can. However, they must both get new attorneys. (to read what the Texas State Bar says about Collaborative Law click here.)

Certainly, there are cases in which a more "traditional", aggressive approach is needed. Those options haven't gone anywhere, they are still available and can and should be used when necessary.  However, it is good to know that there are more choices in divorcing than there used to be.  Practical and humanitarian concerns have made it necessary for divorce to evolve from the old "fault" days of pre-1970.  Making the proper choice with the help of a family law attorney can minimize the negative effects of divorce on the parties and family. 

At Kalish Law Office we are able to assist you in determining which path is best for you. Our attorneys are trained and experienced in negotiation and participate in mediation and other alternative dispute options.  Attorney Siomara Ramirez Pitre is an experienced trial attorney who will fight as aggressively for her client's rights as the particular situation demands.  Attorney Bob Kalish is trained and experienced in collaborative law procedures. 

Kalish Law Office - Divorce attorneys - Since 1984

Monday, March 17, 2014

Adult Adoption in Texas

Adult adoption in Texas is a simpler process than adoption of a child.

A person who has reached adulthood and is legally competent to speak for his/herself can make the decision to be legally adopted by another adult. 

In an adult adoption, there is no home study required. A biological parent does not need to be notified, and does not need to consent to the adoption of his/her child by another person. A biological parent does not have the right to contest the adoption of his/her adult child by another person.

The two adults who are involved (the adopter and the adoptee) need to consent to the adoption.

If there is a name change of the adoptee, there will need to be a background check done and filed with the court.   This is because the Judge will need assurance that an adult seeking a court-ordered name change is not doing so for fraudulent reasons. 

Adult adoption does not give the adoptee immigration benefits. 

The main reason for most adult adoptions are emotional ones.   Generally, two people are "parent and child" emotionally, and as a practical matter they want to be parent and child legally.  Another reason is to confer inheritance or confer other benefits.

If you are considering an adult adoption, a consult with a family law attorney can help you decide and proceed.  The attorneys at Kalish Law Office have been assisting clients with adult adoptions for thirty years. It is a rewarding part of our practice. 

Kalish Law Office - Adult Adoption, Family law  - The Woodlands Texas 
Since 1984 

Monday, March 10, 2014

You've Been Asked to be Executor of a Will - Now What?

Executors of Texas wills have specific duties and responsibilities.  If someone that you know has asked if they can name you as their Executor, Co-Executor or Alternate Executor, you may want to know more about the job before you accept it.

A Co-Executor is an Executor that serves at the same time as one or more other Executors. Sometimes the Last Will and Testament specifies that any decisions made by Co-Executors must be made unanimously, or by majority rule.   An Alternate Executor is someone who is in line for the job if other Executor(s) who are first in line are unable or unwilling to serve. 

An Executor has a fiduciary responsibility to act in good faith and to be diligent in his/her duties.  The primary job of the Executor is to gather and preserve the assets of the estate, and then to distribute the estate. If an Executor is going to distribute the estate properly, s/he must know (or find out) who and where the heirs are, what assets are in the estate and the value of those assets, and whether there are any debts that the estate owes.  An Executor does not have authority to act until the court appointment where she is "qualified" and takes an Oath. After the court hearing, there is a calendar for filing certain documents with the court, (such as the Inventory and Appraisement of the Estate and proof of publication of a legal Notice to Creditors.)

Being an Executor can be quite paperwork-intensive in some cases. In other cases, the process is quite straightforward.

If you are named as an Executor and you do not want to accept, you can decline. If you know that you will not, under any circumstances, want to serve as Executor it is much kinder to be honest with your friend or family member right away, rather than allowing them to spend time and money creating documents that place you in a role that you won't accept.

If, at the time of the person's death, you are unable to accept the appointment as Executor, you may be able to decline by informing the family or the estate attorney that you do not wish to serve and then a probate judge will not be asked to appoint you. In some cases you may need to file a document with the court to state that you respectfully decline appointment. 

The Texas law does have specific requirements for Executors.  An Executor can get specific guidance from a probate attorney.  A probate attorney can help explain the process of appointment, list the time limits for filing specific documents and give an Executor practical, useful information about how to best perform his/her duties. 

Since 1984

Tuesday, March 4, 2014

Judge & Jury in a Family Law Case... Who Decides What?

If you have a family law case that is going to be heard before a jury, it may be helpful to understand which issues will be decided by the judge, and which will be decided by the jury.

The Jury can determine:

  1. Fault in the breakup of the marriage-  a finding of fault is taken into consideration when it is time for the split of the property. 
  2. Characterization of property- whether certain property is marital (community) property or the separate property of one of the parties.
  3. Type of conservatorship of the children (Joint managing conservatorship or sole managing conservator/possessory conservator)
  4. Right to determine domicile of the children & other parental rights
  5. Issues about the validity or existence of a marriage, when these are in dispute (Does an informal marriage exist between these two people? Is this marriage void?  Are the parties entitled to an annulment?)

The Judge can determine:

  1. A "just and right" division of the estate
  2. Amount of child support to be paid and by whom
  3. Terms & conditions of access & possession (visitation)

Here are some factors to be considering in deciding whether or not YOU want to ask for a jury, and how to handle the case once a jury is involved. 

  1. History of the case: Sometimes depending on the history of the case and how the Judge has ruled for or against you, then choosing a Jury is wise; however if the Judge knows the history of your case because of length or circumstances leaving those choices to the Judge may be best.   
  2. Time and money: Jury trials typically are longer as you have to go through extra steps, voir dire (picking a Jury) timed opening and closings and time for the attorneys to discuss issues with the Judge outside of a jury.   A standard Divorce with Property and Children could be as short as 8 hours to as long as 3 days (sometimes more) where as a Jury trial typically is at least 3 days and up to 7 to 8 days; then after the Jury verdict, the Judge still has to rule on the non-jury issues, which again may take 1 to 2 more days.   Taking that into consideration the litigant has to understand a Jury trial may be more costly in money, time and emotion.
The above list covers the most common issues that you may see in a family law case that goes to the jury. Many people mistakenly believe that the jury will decide everything, and that the judge is just there to put a stamp of approval on the jury's decision. That is not the case.  

A divorcing party has to take time to discuss all of these issues with their attorney.  

Kalish Law Office - The Woodlands Texas Divorce & Family Law Attorneys - We have experience in jury trials, bench trials, collaborative divorce, and mediated settlement agreements

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