Frequently Asked Questions
Do you have questions about estate planning or the probate process? Do you need to know more about family law in Dallas? Are you wondering if you have a personal injury case? Are unsure if you need a lawyer?
The Ashmore Law Firm, PC provides the answers to frequently asked questions (FAQs) about estate planning, probate law, family law and personal injury law. Please select a category from the box below to narrow your FAQ search.
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Can I Get a Legal Separation in Texas?
The short answer is… ‘No’. The long answer is… ‘No’.
Although legal separation is available and sometimes had in many states, Texas doesn’t have legal separation. In order to protect your interests regarding your property and your children if you are separated from your spouse, you must file for divorce and obtain temporary orders from the Court.
Learn more about separation in Texas.
¿Puedo obtener una separación legal en Texas?
La respuesta corta es no'. La respuesta larga es ... 'No'.
Aunque la separación legal está disponible en muchos estados, Texas no tiene separación legal. Para proteger sus intereses con respecto a su propiedad y a sus hijos si está separado de su cónyuge, debe solicitar el divorcio y obtener órdenes temporales del Tribunal.
Do I Need a Trust if I Own Property Outside of Texas?
We recommend that if you own property outside of the state of Texas that you have a revocable living trust. Without having the trust in place, upon your death, your family has to go through the probate process in every state that you own property. This can be a costly and time consuming process.
You can save your loved ones the time, money, and stress by having your out of state property in trust.
What is a Step-up in Basis?
A step-up in basis is the readjusted value of an asset inherited by a beneficiary. The readjusted value is referred to as “stepped-up” because the asset’s base value is increased to reflect the value of the asset at the date of the decedent’s death. This adjustment creates a huge tax advantage for the beneficiary because, if the asset is ever sold, the capital gains taxes due upon the sale of an inherited asset are reduced.
For example, let’s say you purchased your home for $100,000. Your “basis” in the house is $100,000. Upon your death, you leave the home to your daughter and it is now worth $150,000. Her basis in the house is $150,000 not $100,000. Should your daughter decide to sell it for $150,000, she would not recognize a “gain” because the sales price ($150,000) minus the value ($150,000) is zero. Should she sell it for $170,000 she would only pay capital gains taxes on $20,000 ($170,000 minus $150,000) rather than $70,000 ($170,000 minus $100,000).
Do I Really Need a Trust?
When I meet with clients it seems there is one question I am asked over and over again: “Do I need a Trust?”
The answer is not everyone needs a trust. There are many different types of trusts and there are certain situations where having a trust would be beneficial. Learn the most common reasons for a trust by reading our article, 6 Reasons for a Trust.
What is a No Contest Provision in a Will or Trust?
How to prevent beneficiaries or heirs from contesting a Will or Trust.
In order to address the possibility of any person – whether related to you or not – attempting to oppose the provisions or probate of your Will, we include a No Contest Provision. This means that if any of your beneficiaries or their heirs choose to contest your Will or Trust and lose, they are no longer entitled to any portion of your estate and will receive just $10.00.
We consider this provision to be non-negotiable and we require it to be in every Last Will and Testament we prepare.
Who Gets the Ring in a Divorce?
In a divorce, the engagement ring is considered the separate property of the person it was gifted to (absent a different agreement between the parties).
In Texas, separate property is defined as anything that was owned prior to marriage, gifted during the marriage, or inherited during the marriage. Thus, after you marry the person who gave you the ring, you have fulfilled your promise to marry and it is your separate property.
What does it mean to be legally incapacitated?
In a guardianship proceeding, the court will appoint a guardian to protect the interests of an incapacitated person.
An incapacitated person means a person under the age of eighteen (18) years, or an adult individual who is unable to provide food, clothing, or shelter or unable to manage their financial affairs.
An individual may be declared medically incapacitated, but that has no legal effect. Until there is a finding of legal incapacity, that individual maintains all of their civil rights and enjoys all of the same privileges of a fully capacitated individual.
Texas Probate Code §§ 3(p) and 601(14) gives us the legal definition of incapacity.
"Incapacitated person" means:
(A) a minor;
(B) an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual's own physical health, or to manage the individual's own financial affairs; or
(C) a person who must have a guardian appointed to receive funds due the person from any governmental source.
When a Court finds an individual to be legally incapacitated, they must also find whether that legal incapacity exists as it relates to their person, or if it also encompasses their estate.
What is a Guardianship?
A guardianship is a court process whereby the court appoints someone who has legal responsibility over the care and management of a person, or estate of an incapacitated individual who cannot act for himself/herself.
Having the knowledge about guardianship can help you make the right decisions for your loved ones.
When is my Divorce Final?
Your divorce is final when all property and child related issues are resolved and the judge signs an order, usually called a Decree of Divorce.
How Long Does it Take to Get a Divorce?
If the parties are in agreement, a divorce proceeding can be finalized soon after the 60 day waiting period is over. If the parties are not in agreement, the time it takes will depend on the court's schedule and the complexity of the case.
From start to finish, the divorce process may go through a number of phases which might include temporary orders, exchange of financial information, psychological evaluations (in custody cases), alternative dispute resolution, trial, and appeal. A divorce in which the parties are not in agreement on some or all issues will usually take at least several months.
Who Would Take Care of My Child or Children if Something Happens to Me?
There are two important estate planning pieces to have in order to protect your child/children in the event something happens to you.
1. Guardianship Provision in Your Will
If you have a minor child or children under the age of 18 it is very important that you have a guardianship provision included in your Last Will and Testament. This provision lets you name who you want as your child's/children's guardian. This particular provision is important because if you didn’t have it included in your Will, upon your death, the Court would decide who takes care of your child/children and their finances.
2. Declaration of Guardian
The second important document to have to protect your child/children is called a Declaration of Guardian. This document allows you to name the individuals who will be the guardian of your child/children in the event of your incapacity or disability. Like a guardianship provision, not having this document will result in the Court deciding who would take care of your child/children and their finances.
Protect your child/children by having these imperitive estate planning documents in place!
Must fault be found against a party for a divorce to be granted in Texas?
No. In Texas, a divorce may be granted without either party being at fault. A divorce may also be granted when one party is found to be at fault in the break-up of the marriage.
What is a Final Decree of Divorce?
A Final Decree of Divorce is the last judgment that a court makes on the termination of marriage. Once the decree is signed by both parties and a judge, the marriage is legally recognized as being over. At this stage, any court orders will be carried out, which may include the division of property, money and spousal support.
Learn more about the divorce process in Texas.
What is the Uniform Prudent Investor Act?
The Uniform Prudent Investor Act was developed by the National Conference of Commissioners in 1994. The Act offers trustees the flexibility to choose from a wider array of investments while outlining factors every trustee must consider before making investment choices.
Learn more about the Uniform Prudent Investor Act on our blog.
Why Should I Have a No Contest Provision in my Will?
A no contest provision addresses the possibility of any person – whether related to you or not – attempting to oppose the provisions or probate of your Will. This provision discourages someone from challenging your Will because if someone does attempt to oppose your Will and loses, they will not inherit anything from your estate.
We consider this provision to be a must have and require it to be in every Will we prepare.
Find out the other must haves that need to be included in your Will.
Can I get full custody of my child in Texas?
There is no such thing as full custody in Texas. Parents are presumed to be “joint managing conservators of the child” and share in the decision making.
However, if there are issues of substance abuse, child neglect, or family violence, the Court can appoint one parent as “sole managing conservator” which technically means this person will make the majority of the decisions on behalf of the child.
Oftentimes, there will be a “primary” parent, who has the children the majority of the time and then the other parent will often have the 1st, 3rd, and 5th weekends of the month.
Learn more about child custody.
How Do You Calculate Child Support?
The Texas Family Code contains guidelines for the calculation of child support. The Court will first determine which parent is obligated to make child support payments. The Court will then analyze the statutory guidelines.
The guidelines apply to situations where the obligated parent’s net monthly resources are $7,500 or less. The term “net resources” is defined very broadly and includes all types of income and resources.
In cases where the obligated parent’s net monthly resources are $7,500 or less, the Court applies the following schedule:
1 Child – 20% of net resources
2 Children – 25% of net resources
3 Children – 30% of net resources
4 Children – 35% of net resources
5 Children – 40% of net resources
6+ Children – not less than 40% of net resources
If the obligated parent has children from other relationships, then the above percentages may be reduced. Also, if the obligated parent’s net monthly resources exceed $7500, the Court may order additional child support to be paid.
I own property outside of Texas, do I need a trust?
Yes, if you have any real estate that is not located in the State of Texas, you need to consider creating a Trust to hold the property.
We recommend setting up a Revocable Living Trust (RLT). The primary purpose of this RLT is to eliminate the need to go through the probate process in each state you have property. Without this RLT, you will have to go through the probate process in the state the property is located. This process can become cumbersome and costly depending on the State. To avoid the delay and cost, an RLT can be created to hold the property and control its distribution upon your death.
Read our article, Do I Need a Trust, to learn more reasons why setting up a trust would be beneficial to you.