Areas of Law

For Individuals

Estate Planning and Wealth Preservation
Our firm embodies a quality of professional service to individual clients and their families. The essence of estate planning is helping clients preserve personal wealth through a variety of estate planning techniques (e.g., trusts and family limited partnerships). We assist clients in planning for and implementing wealth transfer in a manner that achieves the uniquely personal objectives of the client, while minimizing related tax and other costs. The hallmark of our estate planning practice is the provision of legal services of the highest quality that are also responsive to the wishes and needs of the client. Whether we are helping clients prepare simple wills with guardianship provisions for their children or implementing a sophisticated and complex estate plan, each client receives an individually tailored estate plan. We pride ourselves in providing the same level of individual attention regardless of the type of planning that is required.

Some of our areas of experience include:

- preparation of wills [with guardian provisions for children] and trusts, living wills and powers   of attorney
- establishment of guardianships
- business continuity planning after death of owner, founder or senior family member
- tax planning strategies [to reduce income, estate, gift, payroll, franchise and capital gains   tax] for families and closely-held businesses, including family limited partnerships
- life insurance and retirement asset planning
- formation and representation of public charities or private foundations
- preparation of buy-sell agreements
- asset protection

In addition to the above, we can use a wide range of other vehicles to accomplish our clients' personal and financial goals:

These include:

- revocable/living or management trusts
- deeds and assignments
- grantor retained annuity trusts and grantor retained unitrusts (GRATS and GRUTS)
- charitable lead and remainder trusts
- qualified personal residence trusts
- generation-skipping trusts
- special needs trusts
- qualified domestic or residence trusts for non-U.S. citizens
- pre-marital and post-marital agreements

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Wills
If you die without leaving a will, you risk that your property will not be distributed as you desire. Even when the heirs at law are the same as you would have selected yourself, there is no advantage to letting the law take its own course. The advantage lies in dying with a will. With a well-drafted will you can avoid legal pitfalls, name an executor of your estate, name a guardian for your children, establish trusts, and minimize probate-related costs by providing for independent administration. Although a will can be challenged in court, the grounds for contest in Texas are few, and the law favors carrying out the decedent's intent.

Executing a will is not as complicated or as expensive as you might think. You are encouraged to talk with an attorney about wills, trusts, and estate administration and to have a will prepared by the attorney.

If you desire that your life not be artificially prolonged in the event of a terminal condition, you should consider signing a living will. You should consult with an attorney and your physician to understand the full impact of the living will.

Finally, you should consult with an attorney regarding the advantages of signing a power of attorney for health care and a durable power of attorney.

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Living Wills and Power of Attorneys

Texas law allows any competent adult, by signing a directive to physicians and family or surrogates (or "living will," as it often is called), to instruct his or her physician to withhold or withdraw artificial life-sustaining procedures in the event of a terminal condition. The directive takes effect only after the patient's physician determines that death is expected within six months without application of artificial life-sustaining procedures.

The form and contents of the directive are prescribed by Texas law. The directive should be in writing, signed by the patient, and witnessed by two competent adults, one of which is not :

1. the person designated to make a treatment decision for the patient
2. related to the patient by blood or marriage, the patient's heirs
3. the attending physician or an employee of the physician
4. the principal's attending physician or an employee fo the physician
5. a person who would have a claim against the patient's estate upon his or her death
6. an employee of the patient's health care facility who is providing direct care to the patient or who is involved in the financial affairs of the facility

The directive may include a designation of another person to make a treatment decision for the patient if the patient is comatose, incompetent, or otherwise mentally or physically incapable of communication. The directive need not be notarized.

If you desire that your life not be artificially prolonged in the event of a terminal illness, you should consult with an attorney to have a directive to physicians prepared for you. It may also be desirable to inform your physician of your wishes and to provide him or her with a copy of the directive. Failure to sign a directive may result in difficulties for your family in carrying out your wishes with respect to terminating artificial life-sustaining procedures.

A power of attorney is an instrument by which one person (the principal) grants to another (the agent) the power to perform certain acts on his or her behalf. Two types of powers of attorney are common in the estate planning field, namely the power of attorney for health care and the durable power of attorney.

The power of attorney for health care grants the agent the power to make health care decisions for the principal if he or she is unable to make them. The agent may exercise his or her authority only if the principal's attending physician certifies that, in the physician's opinion, the principal lacks the capacity to make health care decisions. The principal can revoke the power of attorney at any time, orally or in writing, and regardless of the principal's mental state. The power of attorney for health care must be signed by two witnesses, one of which is not:

1. the person designated as agent;
2. related to the principal by blood or marriage
3. an employee of the principal's health care facility who is providing direct care to the principal or who is involved in the financial
   affairs of the facility
4. the principal's attending physician or an employee fo the physician
5. the principal's heirs; or
6. a person who would have a claim against the principal's estate upon his or her death

The second type of power of attorney is the durable power of attorney. This instrument grants authority to a designated agent to manage the principal's property on his or her behalf. It can be distinguished from the power of attorney for health care which relates to health care decisions rather than to decisions concerning the management of property. The principal can either grant the agent one or more specific powers or grant the agent all of the powers listed in the power of attorney form. In addition, the principal can elect to have the power of attorney become effective immediately upon signing it or only upon the principal's future disability or incapacity. The durable power of attorney must be notarized, but it need not be witnessed.

The forms of both the power of attorney for health care and the durable power of attorney are prescribed by statute. You should consult an attorney if you desire to have either of these documents prepared for you.

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Guardianships

How does one go about initiating a guardianship?
Any interested party may file an application with the proper court requesting that a guardian be appointed for a person believed to be incapacitated.

What is the definition of an incapacitated person?
A person may be found to be incapacitated if due to a mental or physical condition he or she is unable to: (1) provide food, clothing, or shelter for himself or herself; (2) care for his or her own physical needs, or (3) manage his or her own financial affairs. A finding of incapacity will allow the person to be placed under guardianship. A minor person (someone under 18 years of age) and missing persons are also considered to be incapacitated.

Once a guardian is appointed, does the incapacitated person lose all rights and powers?
Not necessarily. A judge may appoint a guardian for an incapacitated person, but limit the guardian's powers so that all rights and powers except those granted to the guardian are retained by the incapacitated person.



Who may serve as guardian?
The court will appoint a guardian for an incapacitated person in the following order of priority:
(1) the incapacitated person's spouse; (2) the person's nearest kin; and (3) an eligible person who is best qualified to serve.

Do the types of guardians vary?
Yes. Generally, there is a guardian of the person and a guardian of the estate. The guardian of the person has the duty and power to provide the incapacitated person with clothing, food, medical care, and shelter. The guardian of the estate has the duty and power to manage the incapacitated person's financial affairs. One person can fill both positions.

Who is not allowed to serve as guardian?
A person may not be appointed guardian if the person is a minor, a notoriously bad person, an incapacitated person, a person who is a party to a lawsuit affecting the incapacitated person (with some exceptions), a person who owed the incapacitated person money unless it is repaid, a person with adverse claims to the incapacitated person or his property, an inexperienced or uneducated person, a person the court finds unsuitable, a person eliminated in a person's designation of guardian, or a nonresident without a resident agent.

Are there costs involved in a guardianship?
Yes. These costs include attorney's fees, filing fees, attorney ad litem fees, and bond premiums to be paid out of the incapacitated person's estate.

What rights are retained by the incapacitated person?
The incapacitated person has the right to receive a copy of the application for guardianship and other documents filed with the County Clerk. He or she is also entitled to be at the hearing to determine whether he or she is incapacitated.

Is an alleged incapacitated person represented by an attorney?
Yes. When a guardianship is filed, the court appoints an attorney ad litem to represent the interests of the alleged incapacitated person. The person can also retain his or her own attorney.

What happens at a guardianship hearing?
The person who filed the application must prove the incapacity through testimony and medical evidence. The alleged incapacitated person has a right to bring his or her own witnesses to court and also the right to speak to the judge. The alleged incapacitated person may also request a jury trial. The judge or jury will determine if the person is incapacitated.

How soon can a guardianship hearing be held?
The earliest date to schedule a hearing is the Monday following the expiration of 10 days after the alleged incapacitated person has been personally served with the application of guardianship.

Upon appointment, how does a guardian qualify?
The guardian must file an oath and post a bond in the amount set by the court to insure proper performance of his or her duties.

Does the guardian have reporting requirements to the court?
Yes. The guardian of the estate must file an inventory within 90 days of qualifying. The inventory must list all assets of the incapacitated person coming into the guardian's hands and all debts owed to the estate. The guardian of the estate must file an annual account to report all receipts and disbursements. The guardian of the person must file an annual report on the location, condition, and well-being of the incapacitated person.

What if there is an immediate need for the appointment of a guardian?
A temporary guardian can be appointed without notice to the proposed incapacitated person if his or her person or property is in imminent danger. Usually a temporary guardianship will not exceed 60 days. However, if a permanent guardianship application has been filed and is contested or challenged, the court may appoint a temporary guardian to serve as temporary guardian until the contested guardianship action is resolved.

Does the person for whom a temporary guardianship has been appointed have any rights?
Since that person is not presumed to be incapacitated, he or she retains all rights and powers not granted to the temporary guardian. He or she is entitled to be served with a copy of the documents that are filed. The court must appoint an attorney to represent the alleged incapacitated person. The court must hold a hearing no later than 10 days after the date of filing the temporary guardianship to determine whether there is a need for continuation of the temporary guardianship.

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Probate
Whether you have a handwritten or typewritten will, its validity must be proved in court. This procedure is known as probate, and it generally must take place within four years after death.

To probate a will, it must be established in court that the will meets the requirements of execution (see earlier discussion) and that the will was not canceled or revoked. Additionally, unless the will is "self-proved," proof of a handwritten will requires the testimony of two witnesses to the testator's handwriting and proof of a typewritten will requires the testimony of one of the attesting witnesses. A self-proved will is one that has attached a specific form of affidavit containing certain required statements which is executed before a notary public at the time the will is signed or anytime thereafter but before the testator dies. A standard notary acknowledgment alone is insufficient to make the will "self-proved." A self-proved will is admitted to probate on the basis of the self-proving affidavit and there is no need to call witnesses.

A will that is not proved in court is denied probate. In this event, the decedent's property passes to his or her heirs as if he or she died without a will. Again, this further emphasizes how important it is to execute a will which meets all legal requirements so that property will pass as the testator wishes. After proving the validity of a will, the next step in the probate process is the administration of the estate.

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Trusts, Asset Protection from Creditors and Family Limited Partnerships
Our firm's trust and estate planning practice serves clients with diverse backgrounds, desires and needs throughout the North Dallas region. Many clients enjoy substantial wealth and have interests in ongoing family or closely-held businesses, charitable organizations, or distinctive assets, which require sophisticated estate and lifetime giving plans to their families or charities. For them, our firm, while working with financial advisors and other professionals, creates custom tailored asset management, estate and business plans that most effectively achieve their objectives of protecting their assets and families.

We advise the owners of closely held businesses on efficient ways to handle generational transitions, including shareholders' agreements and restructuring. Further, we assist families in forming investment vehicles to assist in wealth management and transfer, including family limited partnerships and limited liability companies.

We also help our clients achieve the legitimate aim of protecting their assets from the claims of contingent, unknown, unforeseeable, and often overzealous creditors. We use an arsenal of traditional and cutting edge techniques that, if properly implemented, will preserve and protect our clients' assets from judgment creditors.

Additionally, our firm assists in the administration of estates and trusts, including the handling of probate and other judicial proceedings. Lastly, we provide estate, gift, generation-skipping transfer, fiduciary income tax and other advice to fiduciaries or to individuals who have interests in trusts or estates, and represent them before the Internal Revenue Service.

The role of the firm in the trust and estate area remains close to that of the "family lawyer" in the traditional sense. Because of this relationship, we often find ourselves in the trusted position of advising our clients, their families or fiduciaries in a variety of legal issues faced by them in today's complex society.


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