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 a Prenuptial Agreement be Modified After Marriage?
After the date of your marriage, you can make new agreements, though not by amending your prenuptial (premarital) agreement.
New agreements would be in the legal document known as a post-marital (post-nuptial) agreement. A post-marital agreement requires similar disclosures so you and your spouse will need to exchange full and current financial disclosures with each other.
So long as you have not mixed your inheritance funds with family funds/expenses, you should have no trouble categorizing it as separate property. However, if upon receiving the inheritance, you bought a new family home using proceeds from the sale of a prior home combined with part of the inheritance, you need to carefully find out where all of the funds came from and what you intend to happen to them in the event of a divorce. This ‘comingling’ and ‘tracing’ are some of the most expensive and most litigated matters in family law. A post-marital agreement will identify the inheritance and manage the expectations of both spouses. This saves emotions and finances for you and your spouse.
Please know that there is a higher standard in preparing a post-marital agreement than a pre-marital (pre-nuptial) agreement because at the time of a post-marital agreement you are already married and you owe each other a fiduciary duty due to the marriage relationship. Prior to the marriage, you can always decide not to get married. Once you are married, new agreements need to be fair for both spouses under their circumstances.
Discussions with your spouse about new agreements for a post-marital document can be tough. However, if your marriage is strong, now is the time to address these concerns with your spouse so unintended consequences don’t haunt you and your family in the future.
It is best to sign a Premarital AND Postmarital Agreement?
Yes, a premarital agreement is the contract you enter into before you are married. A Postmarital Agreement is also signed by both you and your fiancé after you are married. A Postmarital Agreement reconfirms after the marriage all of the agreements you made in the Premarital Agreement. This eliminates the proverbial “I signed under duress”, or the typical, he or she “made” me do it.
What are Ancillary Documents?
Estate Planning does not only encompass death-time planning, but also incapacity during life. Ancillary documents are what we consider "incapacity planning" documents.
If you got into a car accident and were not able to make your own medical and financial decisions, who would make them for you? The ancillary documents below give you the opportunity to list who you would like to step in your shoes if you were unable.
1. Statutory Durable Power of Attorney
Allows you to name who you want to make business and financial decisions for you in the event of incapacity or disability.
2. Durable Power of Attorney
Allows you to name who you want to make your medical and health care decisions for you in the event of your incapacity or disability.
3. Directive to Physician (Living Will)
Declares your wishes with respect to life-prolonging treatments and procedures.
4. HIPAA Authorization
Permits you to name individuals to have access to your medical information and records.
5. Declaration of Guardian
(Should the Need Arise) Allows you to name the individuals who will be your guardian of your person and estate in the event of your incapacity or disability. More importantly, it allows you to name the individual you DO NOT want serving in that capacity.
6. Declaration of Guardian for a Minor Children
(Should the Need Arise) Allows you to name the individuals who will be the guardian of your children in the event of your incapacity or disability.
It's important to plan for the unknown and what you would do should you become disabled or incapacitated.
What is Incapacity?
A person can be incapacitated short term or long term. A person can be incapacitated at any age. A person can have the ability to make some of their own decisions yet still be incapacitated. So, how does that work?
According to the dictionary, the word incapacity has many definitions. One from Webster's Dictionary is "the inability to understand information presented, appreciate the consequences of acting - or not acting on that information, and to make a choice."
The legal definition is rather different. In order to understand the legal definition, we look to the Texas Estates Code, Sections 22.016 and 1002.017.
"Incapacitated person" means:
- (1) a minor;
- (2) an adult who, because of a physical or mental condition, is substantially unable to:
- provide food, clothing, or shelter for himself or herself;
- care for the person's own physical health; or
- manage the person's own financial affairs; or
- (3) a person who must have a Guardian appointed for the person to receive funds due the person from any governmental source.
It is very important to understand an individual may be declared medically incapacitated, but that has no legal effect. Until there is a finding of legal incapacity, a person maintains all rights and enjoys the same privileges of anyone that has capacity.
What is Adoption?
Adoption is the legal process in which the rights of a child toward their biological parents are terminated and replaced with new rights and obligations created between the child and the adoptive parents.
A Caretaker is Isolating My Loved One -What Should I Do?
If you notice a caretaker beginning to isolate a loved one from their family and friends, there may be a few options. One would be to contact Adult Protective Service or the Elder Exploitation and Financial Service. If not, it may be necessary to begin Guardianship proceedings.
For additional information and options, we reccomend speaking with a qualified Guardianship attorney.
Paying Child Support For a Child That's Not Yours?
The story we've heard one too many times: A father being ordered to pay child support and finding out months or years down the road that the child he is supporting is not his biological child.
The question then is, “What do I do?” or “How can I get out of paying child support now that I know the child is not mine?” The answer depends on several factors, some of which include when the father finds out, the case history and the best interest of the child.
The establishment of child support in Texas is a very serious legal process that can be difficult to undo, and it can only be undone by going back to Court. Judges in the State of Texas take the establishment and ordering of child support very seriously. In the event that you are paying child support for a child that you find out is not your own, it is important to seek the counsel of an attorney to discuss your options.
Does My Loved One Need a Guardian?
Your loved one may be in need of a Guardian if you can answer yes to any of the following questions:
- Do you know someone who is suffering from Alzheimer’s disease or Dementia and is unable to make their own medical or financial decisions?
- Do you know an elderly person who is susceptible to fraud and undue influence, whether it be by a family member, caretaker, or “new friend?”
- Do you know someone who was born with Down Syndrome and is over or about to turn 18-years-old?
- Do you know someone who has been diagnosed with a Mental Illness and is not always able to make their own medical or financial decisions?
- Do you know of a minor child (a child under the age of 18) whose parent or parents are recently deceased?
- Do you know someone who is suffering from a medical or physical disability that has left them unable to care for themselves?
A Guardianship is a legal process that is used when one can no longer make safe or sound decisions about his or her person or property. Keep in mind that even though you feel someone is incapacitated and not able to make their own decisions, this does not make it so. The only way a person can be declared legally incapacitated is through the legal process of a Guardianship. With that being said, we consider a Guardianship to be the last resort. It can be a time consuming and expensive process. Because of this, there are a few alternatives that you may want to consider first.
Learn more about Guardianship in our free book, Is Your Loved One in Need of a Guardian?
Who Can be Appointed to Serve as a Guardian?
I’d like to start out by saying that it is very important to give careful consideration when designating who you would like to serve as the guardian of your estate and the guardian of your person.
Why you ask? Because there is not an absolute clear cut answer as to who is qualified to serve as a guardian and who can be disqualified to serve as a guardian. The only constant is that in order to be a guardian you must be over the age of 18.
The Court has significant leeway when deciding who to appoint as a guardian of an estate or person. For example, according to the Estates Code, a person may not be appointed as a guardian if a Court finds them to be “unsuitable” or if their conduct is “notoriously bad." This is one of the many reasons why it’s so important to meet with a qualified guardianship attorney to get your questions answered with respect as to who can and who cannot be appointed as a guardian.
What is a Declaration of Guardian?
A Declaration of Guardian is a document that allows you to name the individuals who will be your guardian of your person and estate in the event of your incapacity or disability. More importantly, it allows you to name the individual you DO NOT want serving in that capacity.
My minor child was listed as a beneficiary on my parents’ life insurance policy, but the insurance company won’t release the money. What can I do?
Although you are the parent, the insurance company will not release funds to any minor child. You will need to either institute Guardianship proceedings, or have the funds placed in the court registry until your child reaches age 18. At that point, the funds will be given directly to your child.
For more information, read our article, The 1 BIG Problem with Designating a Minor as a Beneficiary.
My sibling has my parent’s Power of Attorney, but is refusing to pay for living expenses. What can I do?
There may be a few options. One would be to contact Adult Protective Service (APS), or the Elder Exploitation and Financial Service. If not, it may be necessary to begin Guardianship proceedings.
Learn more about Guardianship in our new book, Is Your Loved One in Need of a Guardian?
What do I do if my parents are becoming confused and cannot handle their finances?
Your parents have the option to sign Power of Attorney Documents to appoint someone to handle their finances and/or their medical decisions. However, if they do not have the capacity to understand what the documents mean, it may be necessary to begin Guardianship proceedings.
My son or daughter is diagnosed with a mental illness and refuses to take medication, what can I do?
If he or she is a danger to himself or herself, or anyone else, call 911 or obtain a Mental Illness Warrant. If he or she meets the criteria, he or she will be taken to a hospital, which would begin the Mental Illness Commitment process. Part of this process will be to file an application for court ordered psychiatric medication. Keep in mind that he or she would have to meet the necessary criteria. Contact us for additional information on this process.
What is a Temporary Restraining Order?
A Temporary Restraining Order sets forth the acts which either or both parties are prohibited from doing immediately after a petition is filed. Sometimes this order is called a "TRO."
What is Conservatorship in Texas?
In Texas, custody is known as conservatorship. It is a legal term that defines the rights and responsibilities of a parent under the Texas Family Code.
¿Qué es la curaduría en Texas?
En Texas, la custodia se conoce como curatela. Es un término legal que define los derechos y responsabilidades de un padre bajo el Código Familiar de Texas.
What is the 2017 Estate Tax Exemption Limit and Why is it Important?
Essentially, the Estate Tax is a tax on a person’s right to transfer property upon his or her death.
The “Gross Estate” includes everything from cash and securities to business interests to real estate. Basically, everything a person owns. Tax deductions are taken from the Gross Estate to create the “Taxable Estate.”
If a person’s Taxable Estate is over the exemption limit, $5,490,000 for 2017, the estate will be taxed at a rate of forty percent (40%). It is important to understand what the Estate Tax is and why it could affect your estate, whether you are over or under the exemption, because it will dictate the type and complexity of your estate plan.
It is best to work with a qualified attorney to determine the most viable estate plan for you based on your planning goals and objective.
What is a Disposition of Remains?
A disposition of remains is an estate planning document that allows you to appoint an agent to make all decisions about the disposition of your remains after death. For example, if you would like to be buried, cremated, have your ashes spread in a specific manner, etc.
Learn about other important estate planning documents.
How can I keep my divorce private in Texas?
In Texas, you can keep your divorce proceedings private by requesting the Court sign an “Agreed Order to Seal” the case file.
This prevents the pleadings from being publicly accessed and also prevents non-parties from attending any hearing or trial. However, whether the Court signs an Order to Seal is up to the discretion of the judge and is not guaranteed.
I founded my own business and two of my children have already become involved in the day to day operations. Do I really need to think about business succession planning?
Yes. Succession planning is not just about preparing a will or a trust. It is not even about deciding who will run the company when you die. Succession planning documents can provide the protection your company needs to combat business risks, but they can also protect your estate against any future estate taxes. Further, it is equally as important that you, the benefactor, are protected during your lifetime. Succession planning works hand in hand with estate planning to provide that protection.