Why Most Adults Under Age 35 Needs an Estate Plan

Many young adults assume they won’t need a simple or comprehensive estate plan until they’ve created or inherited a sizeable amount of wealth. However, all adults, especially those who are married or have children, need estate plans to protect their legal interests.

After all, none of us know when we may suddenly become the victim of a severe pedestrian or auto accident – or receive a devastating medical diagnosis. When you have a basic Will, it can greatly simplify matters for your loved ones if you become too incapacitated to manage your own finances or even pass away.

The following information helps explain why no one should want to continue being one of the approximately 60% of American adults who are without a Will or estate plan.

While it may be a bit uncomfortable requesting documents that directly address your own possible incapacitation or death – the peace of mind you and your loved ones will gain always makes the effort worth it.

Key reasons why all younger adults can benefit from a Will or comprehensive estate plan

  • They each allow you to specifically name the beneficiaries you want to receive your real property and investment accounts. When you fail to create a Will, the state of Texas will apply its laws of intestacy to decide who will inherit everything you own. Even if you’ve only had time to pay into a 401k or other investment account for a few years, chances are you also own a car and a few other valuable possessions. Creating an estate plan lets you decide who will receive your assets – although community property and other laws will also come into play if you’re married;
  • You can designate a guardian for any minor children. There may be good reasons why your child shouldn’t go live with certain relatives if you become critically ill (or too disabled) to care for the child. A Will lets you designate one or more people to shoulder this responsibility, along with one or two back-up guardians.
  • You can designate someone else to speak for you in a medical Advanced Directive. This type of estate planning document lets a person you trust choose the specific medical care you wish to receive if you become seriously ill and can’t make decisions for yourself;
  • Your Houston estate planning attorney can provide you with valuable legal advice on how to protect your wealth against excessive taxes as your estate begins to grow. Even if you hold a degree in asset or wealth management, you’ll always need to make sure you’re using tax-efficient wealth transfers to others that fully comply with all recent changes in IRS laws and regulations. You may also want to have a trust account created to help you annually transfer wealth to specific individuals or charitable organizations;
  • Creating an estate plan helps you develop meaningful savings goals as you begin to plan for your eventual retirement. If you begin funding your retirement in your early 20s and 30s, you’ll increase the chances of being able to choose the date when you’ll retire or reduce your workload. Should you marry, having an estate plan can help you and your spouse make more informed choices about assuming a new mortgage, having children, setting aside funds to help pay for your children’s education — and possibly even one day funding a charitable trust or family foundation.

Perhaps the best part of creating an estate plan when you’re very young is that you’ll be able to reflect on how your legal documents are helping you “grow your income.” And you’ll always be able to change and update your financial goals when new life circumstances develop.

While many younger people request an entire set of estate planning documents, others are more comfortable just requesting a Will that will cover all their current, limited possessions.

Please feel free to contact one of our Murray Lobb attorneys so we can provide you with the estate planning advice you currently need. We’ll always be available to answer any questions you have and update your legal paperwork as your life changes and moves forward.

How Wage Garnishment Laws Affect Many Texans

Although wealthier Texans may build up significant savings and retirement accounts by middle age, most residents must keep working far longer to meet their individual and family needs. And if unexpected family or medical crises occur creating new financial emergencies, some people may face wage garnishments. Fortunately, Texas offers strong protection against many types of creditors.

Here’s a brief review of the most common types of wage garnishments pursued in Texas, basic terms you’ll need to know regarding this field – and references to special concerns you may need to discuss with your Houston business law attorney to fully protect your rights.

Important terminology related to attaching employee wages

  • Wage garnishments. In Texas, this term is often used interchangeably with “wage attachments” and refers to court orders directing employers to withhold certain amounts of money from employee paychecks to satisfy certain debts;
  • Administrative garnishments. These usually refer to federal government back taxes or student loans now in default – and they do not require a court order to be activated. Once debtors have student loans in default, they’ll normally be contacted by the U. S. Department of Education and told which collection agencies will be collecting their debts. (Note: Students loans can almost never be discharged by a bankruptcy filing);
  • Disposable earnings. This refers to the amount of money you have left in your paycheck after all mandatory deductions have been made for federal taxes, disability insurance, union dues, unemployment insurance, nondiscretionary retirement deductions, workers compensation and health insurance.

Types of debts often leading to wage garnishment

Texans are very fortunate compared to citizens of other states since Texas only honors a very limited number of garnishable debts.

  1. Unpaid child support and alimony (in arrears)
  2. Current court-ordered child support and alimony
  3. Government debts owed to the IRS (back taxes) — and all related fines and penalties
  4. Unpaid student loans (in arrears)

Note:  In light of Article IV of the U. S. Constitution, Section I (requiring each state to honor the “public acts . . .  and judicial proceedings of every other state,” certain other limited creditor debts referenced in judgments obtained outside of Texas may also be garnishable.

Be sure to speak with your Houston business law attorney whenever you receive any notice of an order to garnish your wages.

Fixed garnishment limitations that benefit Texas debtors

  • Total amount that can be garnished (based on all court orders). This is equal to 50% of your disposable earnings;
  • Percentage allowed for tax debt. This varies, based on your current deduction rate, the number of your dependents and other factors;
  • Student loans. The Department of Education can normally only garnish up to 15% of your disposable income from each paycheck;
  • Spousal support. The most your wages can be attached for this obligation is either $5,000 or 20% of your average monthly gross income – whichever is less.

Priority of wage garnishment orders

Although unusual factors might be able to change the list below, employers must normally prioritize their payment of garnishment orders in the following manner.

  • Unpaid child-support
  • Spousal support
  • Back taxes
  • Student loans

Texas employers are not allowed to discriminate against employees with wage garnishments

This has long been a concern of many employees since handling wage garnishments can take up a considerable amount of an employer’s time. Texas doesn’t allow those with wage attachments to be treated unfairly when it comes to hiring, promoting, demoting, reprimanding and firing (among other actions).

How creditors can still reach your money – apart from using wage garnishment

Even if your wages cannot be reached, regular creditors can still gain access to your money by obtaining court orders to freeze one or more of your financial accounts – and place liens on certain types of real property you own.

Please contact our law firm with any questions you may have about the proper handling of court orders to garnish wages — or any other types of administrate tasks regarding employees.

Choosing Reputable Charities for Your Texas Estate Plan

Many Americans now name one or more charities in their Wills or other estate planning documents to help these important cultural and humanitarian groups maintain adequate funding. However, others less familiar with charitable giving need to understand that, before arranging these types of gifts, they must carefully evaluate each charity or non-profit group to be sure their funds will be shared properly. 

Fortunately, there are several reputable organizations that will readily help consumers decide which charitable or non-profit groups are properly using all their donations while minimizing administrative costs. These same “watchdog” groups often urge all charitable groups to maintain open donation and expenditure records. In addition, our Texas Attorney General’s Office has put together some useful tips that can help all of us do a better job of deciding which charities will be the most responsible recipients of our testamentary gifts.

Here’s a list of basic tips that can help all of us better evaluate all non-profits and charities. That information is followed by a list of different websites and groups dedicated to providing consumers with current news about charitable activities. Of course, it’s always best to start your search by first visiting with your Houston estate planning attorney who may already know about the reputations of many charitable organizations.

Important Information to Obtain While Choosing Charities to Include in Your Estate Plan

  • First, be sure to obtain the full legal name of each group, its address and telephone number. Next, ask if the IRS has formally recognized it as a public charity that’s tax exempt. Then, ask if your donations will all be fully tax deductible.
  • Find out how long the non-profit or charity (hereinafter just referenced as ‘charity’) has been in existence.  While longevity doesn’t always ensure completely honest and frugal management of funds, it does mean that it should be easier to research the group’s reputation by visiting several of the online sources named below.
  • Request a recent annual report that clearly indicates how much money the group spends on administrative costs and how much of every donated dollar will directly benefit those the charity is seeking to help.
  • Find out if the charity’s main goals are related to education, medical services, scientific and medical research – or perhaps providing scholarships to those pursuing careers in specific vocational fields.
  • Do not give the group any of your private bank account or credit card information during your investigative calls – although it’s best to be honest about your intentions. Also, if you’re not ready to receive numerous emails or letters to your home address, avoid giving that type of information out right now.

Be sure to ask members of your professional or business circles if any of them have had positive experiences with the charities that interest you the most. When any charity has a publicly named board of directors, consider contacting those individuals directly by phone to ask them about their experiences with handling tasks on behalf of the charity.

When you’re ready, start visiting some of the websites set forth below to see what you can find out about each of the charities that seem to be highly reputable.

Online Websites Offering Detailed Information About Various Charities

  • Give.org. This website includes the sub-title, “BBB Wise Giving Alliance.” On its page dedicated to donors, it states that you can look up information about each charity’s effectiveness, governance, finances – and current brochures or other materials available to the public.
  • The American Institute of Philanthropy (Charity Watch). Among its various offerings, this website offers a list of charitable groups involved with some highly specific causes and issues.
  • Guidestar. This online resource offers a wide array of information about many reputable non-profit groups.
  • Charity Navigator. Like the other websites already named above, this one offers timely information about many charities. It also provides a “hot topics” link that will tell you more about charities currently in the news for one reason or another.

All four of the oversight groups listed above are noted on the Texas Attorney General website. You can also find out additional information about specific charities by visiting this Consumer Reports page.

If you haven’t already thought about giving to a charity or non-profit when you pass away, please consider doing so now.  All Texans need to do a bit more to help others so our state can become more compassionate — and improve our current ranking for charitable giving.

Please feel free to contact our firm so we can explain some of the best ways to include charities as beneficiaries in your estate plan. There are specific legal ways of handling this task so that your estate will reap the best tax advantages available.

Some Pros and Cons of Having an Adult Guardian Appointed

While most middle-aged and older adults recognize their need for a Will and a basic estate plan, far fewer understand when it may (or may not) be in their best interest to have a formal guardian appointed to help them manage all their personal and financial (estate) decisions. In general, if you’re still capable of making fully competent decisions regarding your finances, basic living arrangements, and medical care needs, you probably don’t need a guardian appointed for you.

However, if you’re currently suffering from some form of mental incapacity or dementia that impairs your ability to handle such matters, then you may need to have a guardian appointed to help you manage your affairs (either temporarily or permanently).

This article first reviews some of the dangers that can occur when the wrong person becomes your guardian and then lists the various legal documents that can help all adults provide for their general medical, financial, and everyday needs should they unexpectedly become very ill or need extensive medical treatment.

Can Courts Abruptly Take Away Elderly People’s Rights to Live as They Choose?

The New Yorker magazine recently published an article in October 2017 entitled, “How the Elderly Lose Their Rights.” It details the real-life experience of many seniors who suddenly found themselves under the control of a “questionable” court-appointed guardian in Clark County, Nevada. In some cases, these older Americans were in regular contact with family members – when a local court guardian decided that they could no longer live on their own and required her overbearing control of their lives.

In some instances, all it took was a hired home healthcare aide’s statement that the elderly person could no longer properly care for himself or his spouse, even though appropriate outside care had obviously been employed for such purposes. One court guardian (who’s been indicted for her actions), would simply arrive at an elderly person’s apartment or senior care facility and announce that she had just gotten herself appointed as that person’s (or couple’s) legal guardian. That same day, the individuals were then forced to leave where they had been living and go move in where this previously unknown woman directed.

Immediate attempts by family and other outsiders who tried to help proved futile. Instead of the court allowing the elderly to appear in court to respond to concerns about their mental competency, the court allowed a court-appointed, professional guardian to file emergency ex parte petitions indicating that immediate decisions had to be made regarding the seniors’ best interests. One couple’s daughter who tried to help her parents after they suddenly disappeared from their home had to endure various types of character assassination before she finally won their freedom. By that time, all her parent’s finances had been drained – supposedly spent in their best interests.

Sadly, the article also contains the chilling observation that this type of elder abuse has become far too common in many counties across this nation – especially in areas where seniors tend to congregate. Hopefully, more states will follow Nevada’s current plans to soon pass legislation that will expressly give seniors the right to be represented by attorneys during all guardianship competency hearings.

Conclusions

Since no adult ever wants to be suddenly “kidnapped”  or taken somewhere (at any age) by a court-appointed guardian or “professional” — it makes sense for all older adults to have their lawyers provide them with the following critical documents:  an Advance Directive for Medical Care, a Durable Power of Attorney and a Declaration of Guardian in the Event of Later Incapacity or Need of Guardian. By naming someone you know and trust in these documents, it should make it easier for your relatives and friends to help you in a manner that fully comports with your stated preferences should you one day become very ill or incapacitated.

Please contact our law firm if you need to ask any questions about creating an estate plan or having the types of documents referenced in this article prepared for you and other loved ones.

Pay-if-Paid – What It Means for Subcontractors

Subcontractors Unite!  Do not sign a subcontract that shifts the risk of non-payment by the owner on you.  My advice is to strike out such provisions in any proposed subcontract and negotiate a reasonable time in which the Contractor has to pay regardless of whether the Owner pays.

Contractors are always trying new ways to “shift the risk” of non-payment by the Owner.  What this means is that General Contractors do not want to pay a subcontractor or supplier unless the Contractor has received payment from the Owner.

This is true even when there is no objection to the work performed or material supplied.

Contractors first tried inserting “pay-if-paid” and “pay-when-paid” provisions in their subcontracts.   The provision can be as simple as stating: “Contractor will pay Subcontractor within 7 days of Contractor’s receipt of payment by the Owner”, or as specific as, “It shall be a condition precedent to Contractor’s obligation to make each payment to Subcontractor (including but not limited to progress payment, final payment, payment for extra work or changed work), if the funds for such payment have first been paid by the Owner to Contractor.”

The Legislature took care of the “pay-if-paid” provision with the contingent payment clause statute that allows an unpaid Subcontractor to reject the enforcement of the provision when the reason for non-payment by the owner has nothing to do with the work of the Subcontractor.  Knowledge of Chapter 56 of the Texas Business and Commerce Code is essential.

Chapter 56 does not apply to a “pay-when-paid” clause if the payment is to be made within a reasonable time.  The problem is that “reasonable time” is not defined in the statute.

To get around the “pay-when-paid” reasonable time standard, Contractors are now defining “reasonable time” in the subcontract.  A typical definition might be as follows:

In the event of non-payment by the Owner, the parties agree that Contractor shall pay Subcontractor within a reasonable time.  For the purposes of determining the timing of payment under these circumstances, the parties acknowledge and agree that a reasonable time for payment to Subcontractor is within 30 days after Contractor has exhausted all available rights and remedies in connection with recovery of payment from the Owner.

When considering how long the litigation process can take including appeals, Subcontractors could be waiting up to 10 years for payment under this definition.  When negotiating the timing of payment, I would suggest the following:

In the event of non-payment by Owner, Contractor acknowledges it will be obligated to pay Subcontractor with a reasonable time for work completed in accordance with the Contract Documents, and for which Owner has no complaint.  A reasonable time period for non-payment to Subcontractor shall be 120 days from the date Subcontractor submitted its application for payment, or 90 days from the date the project reaches substantial completion, whichever occurs first.

However, Contractors have devised an even more sinister way to avoid payment.  They are now getting the Subcontractor to assume the risk of non-payment by the Owner and accepting the risk that the Owner may not pay for the work performed.  This language could be devastating in a suit to collect the amount owed for canopies installed at a project.  A typical provision might say:

It is agreed by the parties that, if payment from the Owner for all or a portion of the Subcontract work is never received by Contractor, then Contractor will never have any obligation to pay the Subcontractor for such portion of the work not paid by Owner.  Subcontractor expressly assumes the risk of Owner nonpayment.

Never agree to such a provision.  The Contractor is always in the best position to determine the financial strength of the Owner, or the Owner’s creditworthiness.  It is the Contractor who has met with and worked with the Owner concerning the plans and construction budget.  The risk of non-payment by the Owner should always fall on the Contractor because it is the Contractor who can elect not to contract with the Owner if the Owner lacks funds or credit.

In many instances a Subcontractor elects whether or not to subcontract on a job because of the Contractor’s reputation.  Most Subcontractors do not elect whether or not to subcontract on a job because of the reputation of the Owner.  Most often the Subcontractor has no intimate knowledge about the Owner.

Murray | Lobb, PLLC. represents subcontractors in their negotiations with contractors and helps in collecting payment for work performed and materials supplied to a construction project.

New Technologies & Forbidden Debt Collection Practices

When the Fair Debt Collection Practices Act (“FDCPA”) was enacted back in 1977, it was designed to help the federal government protect consumers’ privacy rights, while monitoring and enforcing proper debt collection activities. It was also passed to protect the rights of “ethical debt collectors” whose lawful efforts were sometimes confused with those of competitors who took abusive shortcuts to recover outstanding debts.

Like most states, Texas has enacted its own similar statute entitled, The Texas Fair Debt Collection Practices Act, passed in 1997. It’s located in Title 5, Chapter 392 of the state’s Finance Code.

New Technologies Are Clearly Challenging the FDCPA’s Viability

During the past decade, various legal scholars and others have urged the federal government to update the FDCPA in light of the many new and emerging communication technologies. However, no agency could readily respond since Congress never conferred any future rule-making authority on the government entity when it first enacted the law.

Fortunately, after the Dodd-Frank Act was passed “in response to the financial crisis of 2008,” all FDCPA enforcement duties [including rule-making authority] were transferred to the new Consumer Financial Protection Bureau (CFPB).

At present, the CFPB is working hard to address the problems that are surfacing as debt collectors contact putative debtors by using automated dialers, Internet emails, text messages – and even Internet platforms such as Facebook and MySpace. At times, these new technologies appear quite appealing to debt collection agencies.

In fact, one company reported “increased payment rates by nearly 100% within five days” when text messaging was used. However, some privacy violations may have occurred and even prompted lawsuits. In another case, a debt collector used poor judgment when he posted a message on Facebook to the page of a putative debtor’s friend.

The FDCPA Is Responding & New Rules May Be Announced in the Near Future

As of November 2013, the Consumer Financial Protection Bureau (CFPB) took a “first step toward considering consumer protection rules for the debt collection market.”  In addition, the Federal Trade Commission (FTC) has remained heavily involved. In fact, at one point, the FTC sponsored a workshop so it could solicit suggestions from consumers, debt collection agencies, and others about the types of new rules required to address the many new technologies.

However, CFPB Director Richard Cordray is clearly leading the way. His bureau has been communicating with the public since late 2013 to draft new rules. (See the CFPB’s Advance Notice of Proposed Rulemaking, published in 12 CFR Part 1006).  Although an official publication date has not yet been announced, it’s very likely that new FDCPA rules will be issued during the next six to twelve months.

What Types of General Changes Are We Likely to See?

Broad FDCPA terms like “communication” will have to be expanded to include all new technologies. In addition, the FDCPA’s “disclosure requirement” will have to be “applied to new communication platforms that pose a threat to consumer privacy.”

The CFPB will also probably prevent debt collectors from forcing putative debtors to accept certain new forms of contact — without first obtaining their “express written consent” to such contact — especially when it “may cause consumers financial harm.”

Until new rules are released, debt collectors must remain cautious when contacting debtors via new technologies since the courts are quite sensitive to reasonable privacy concerns.

Will the Courts Remain Open to Debt Collectors’ Tech Dilemmas in the Future?

While new legal shifts can always occur, debt collectors appear pleased with the recent decision handed down in the New York case of Zweigenhaft v. Receivables Performance Management LLC. Stated succinctly, this case involved a young man who heard a voicemail left for his father. It made him aware that his father owed a debt.  The young man then returned the call and answered questions regarding his identity and the phone number he was using to place his call.

Claiming that the voice mail and conversation with his son “violated the FDCPA’s prohibition on third-party communications,” the father filed a lawsuit. In ruling against the father, the court held that to do otherwise “would place an undue restriction on an ethical debt collector in light of our society’s common use of communication technology.

Recent opinions like Zweigenhaft indicate that many courts remain eager to properly balance out the needs and concerns of both debt collection agencies and consumers. This type of unbiased approach remains crucial since so many people owe money in this country. In fact, during 2012, “approximately 30 million individuals, or 14% of American adults, had debt that was or had been subject to the collections process (averaging approximately $1,500).”

Conclusions

While we await the release of new rules to supplement the FDCPA, both common sense and conservative courtesies should continue to guide debt collection agencies as they use new technologies to contact putative debtors.  In addition, every effort must be made to reach the correct debtor directly. If messages are left, it’s always safest to avoid stating that any money is owed by the party you are trying to contact.

Documents Needed When Creating or Updating Your Will

Whether you’re having a first Will drafted or updating an older one, you can help speed up the process by bringing copies of specific documents to your appointment. If possible, try to bring copies that you can leave behind for an extended period of time.

It’s also useful if you can readily explain the special circumstances involved with any beneficiaries you’ll be naming in your Will. For example, be sure to tell us if someone is still a minor, has a major disability – or may be difficult to contact due to unique job or living arrangements. Finally, keep in mind that all major life events can require future Will updates.

We hope the information we’ve shared below will help you locate the documents we’ll need when first meeting with you regarding your current estate planning needs. Many assets may be transferred either by contract or under a Will, so letting us know of any existing contractual beneficiaries aids in your overall estate planning. Our goal is to create a comprehensive estate plan that allows you to provide testamentary gifts to all of your chosen beneficiaries.

Documents/Information That Helps Attorneys Analyze Your Assets & Desired Gifts

  • A thorough list of all real property you own/co-own (or are currently purchasing). We will need copies of all property deeds that state your ownership rights – and all related mortgage documents.
  • Copies of your most recent checking and savings account statements, together with any designation of beneficiaries.
  • A list of all automobiles you own – including all other motorized vehicles titled in your name (and information stating how much you owe on each one of them).
  • Copies of all personal life insurance policies, together with any designation of beneficiaries.
  • Documents describing all structured settlements that name you as a beneficiary.
  • Your most recent certificate of deposit and brokerage firm statements, together with any designation of beneficiaries.
  • Copies of your most current 401(k), IRA, Roth, Keogh, pension, or other retirement account statements, together with any designation of beneficiaries.
  • A comprehensive list of all monthly rents and other payments owed to you personally – or to your business.
  • A complete list of all of your current stocks and bonds, together with any designation of beneficiaries.
  • A comprehensive list of all of your most valuable personal property, including: jewelry, artwork, household furniture, antiques, and other similar possessions.
  • A thorough list of all outstanding credit card debts owing – as well as any other lines of credit you’re trying to pay off.
  • Documents indicating any type of monthly support or inheritance you currently receive. This might include spousal support payments or trust account payments. You may also want to tell us about any testamentary gifts you expect to receive in the near future.
  • Any important information concerning your pets, such as veterinarian, special diet, person to care for your pets.
  • A list of any other major assets (or debts) that you haven’t already named above. Also, please be prepared to tell us about any bankruptcy filings you’ve made – either business or personal ones – during the past 10 years. Be sure to bring copies of any paperwork documenting those filings.

Information to Designate Persons to Carry Out Your Wishes

  • Full legal names, birthdates, addresses and phone numbers for:
    • Executor and two alternates;
    • Trustee and two alternates;
    • Guardian and two alternates;
    • Medical Power of Attorney and two alternates;
    • Financial Power of Attorney and two alternates;
    • Medical Provider.

Common Circumstances that Can Trigger the Immediate Need to Update Your Will

  • You get married – or divorced.
  • You adopt a child or have one born to you or your spouse/partner.
  • When one or more of your beneficiaries pass away. Depending upon the type of gifts you left to these individuals – and how they were structured – you may or may not need to update your Will. Please always call and check with us upon such deaths.
  • You gain or lose a business partner – please contact us so we can be sure your Will fully protects all of your rights regarding this type of change. Likewise, please get in touch if you change the legal structure of your business enterprise – e.g., you change it from a solo-proprietorship to a partnership – or corporation.
  • A family member’s health has significantly declined. Also, please be sure to tell us if a beneficiary has started receiving social security disability payments so we can properly structure all gifts or funds you’re providing to this individual. If you fail to do this, it can threaten this person’s ongoing eligibility to receive such government payments.
  • Whenever you purchase or inherit a new home, new land, or other real estate.
  • You significantly add to – or diminish – the number of insurance policies you’re keeping current.
  • When you personally become seriously ill. This will let us check to be sure your current medical insurance and insurance policies will fully cover all of your needs.
  • Please let us know when you’ve changed your legal home or business residence. There may be new tax consequences that should be reviewed. Likewise, let us know if you decide to change the nature of your current citizenship.
  • You inherit a very large sum of money. Likewise, please inform us if you’d like to start giving large sums of money to one or more charities.
  • One of your current beneficiaries can no longer manage his or her financial affairs. This can occur due to general physical or mental health issues – as well as due to various accidents or addictions.
  • There are major changes in your earnings or investments. This will allow us to properly adjust the size and types of gifts you may want to give to different individuals.
  • You hear about major state or federal tax changes that could affect your estate. Rest assured, we normally contact all of our clients under such circumstances. However, we’re always here to answer any questions you may have.

While the information shared above is fairly comprehensive, we believe it’s important for our clients to fully understand all aspects of the estate planning process.  In light of that goal, we’ll now also note some of the unusual events that can prevent a named beneficiary from receiving your designated gifts. If you’ll stay in close contact with us, we can usually prevent this from occurring.

Reasons a Named Beneficiary May Not Receive All Indicated Gifts

  • We cannot locate a beneficiary. Of course, your executor has a legal and fiduciary duty to hire all necessary personnel to locate all named beneficiaries. It’s always a good idea to provide our office with any new addresses for your beneficiaries, especially when they move out of the country.
  • A later divorce takes place. In an effort to protect testators who forget to update their wills after divorcing, many states have passed laws that prevent former spouses from receiving property the testators would not have wanted to give them had they updated their Wills. Of course, it’s always best to immediately contact us whenever you divorce or remarry.
  • A gift has abated. When you pass away, your estate may not be large enough to cover all of your taxes and expenses. In some cases, we may still be able to provide some gifts on a pro-rated basis, in keeping with the terms of your Will.
  • Your Will conflicts with the legal requirements of a governing community property state (like Texas) in which you live. This is one of the reasons why it’s always wise to allow our firm to carefully review any Will you already have that was drafted by another estate planning attorney. While such errors are rare, they can invalidate all or part of your Will – if it fails to honor the division of marital property required by this (or another) community property state.
  • A court later declares your Will to be void for legal reasons. This is extremely rare and would usually only occur if certain types of fraud (or mistakes) were involved.
  • A gift causa mortis has been made. While this is rare, it simply means that if a person’s death is imminent – and he/she makes a specific gift to someone (often a person right there in his/her presence), the prior named beneficiary may not receive it. Courts will naturally need to investigate this type of situation to be sure undue influence wasn’t involved or any type of fraud.

We hope this general overview of information has proved useful. However, please know that our attorneys are always available to answer any questions you may have concerning your estate planning needs.

The Texas Margin Tax – H.B. 500

In 2013 the Texas Legislature enacted H.B. 500 which provided for a temporary margin tax rate reduction, a new minimum deduction, expanded deductions, new credits for certain taxpayers, and customer-based sourcing for Internet hosting receipts. The law went into effect January 1, 2014.

A franchise tax (or margin tax) is imposed on all taxable entities. Under H.B. 500 a “taxable entity” means a partnership, limited liability partnership, corporation, banking corporation, savings and loan association, limited liability company, business trust, professional association, business association, joint venture, joint stock company, holding company, or other legal entity. The term includes a combined group. A joint venture does not include joint operating or co-ownership arrangements meeting the requirements of Treasury Regulation Section 1.761-2(a)(3) that elect out of federal partnership treatment as provided by Section 761(a), Internal Revenue Code.

For all taxable entities under this legislation, the revised tax base is the taxable entity’s margin defined as the lowest of the following:

  1. Total revenue less cost of goods sold;
  2. Total revenue less compensation; or
  3. Total revenue times 70%.

The margin tax is imposed at 0.5% on retail and wholesale trade businesses and 1% on all other taxpayers. The rate could be reduced provided the probable revenue estimates as certified by the Comptroller are calculated to offset any revenue lost by the rate reduction. In that event, H.B. 500 establishes temporary rate reductions as follows:

  1. 2014 – 0.4875% for retailers or wholesalers, and 0.975% for other taxpayers.
  2. 2015 – 0.4750% for retailers or wholesalers, and 0.950% for other taxpayers.

The rate for reports due in 2014 was actually reduced as indicated above. It is estimated by the Comptroller that probable revenue for the fiscal period applicable to 2015 will be sufficient to also allow for the rate reduction for 2015.

A taxable entity is primarily engaged in retail or wholesale trade if: (1) the total revenue from its activities in retail or wholesale trade is greater than the total revenue from its activities in trades other than the retail and wholesale trade; and (2) less than 50% of the total revenue from activities in retail or wholesale trade comes from the sale of products it produces or products produced by an entity that is part of an affiliated group to which the taxable entity also belongs, except for those businesses under Major Group 58 (eating and drinking establishments); and (3) the taxable entity does not provide retail or wholesale utilities, including telecommunication services, electricity, or gas.

Under H.B. 500, the retail or wholesale trade definition was expanded to include automotive repair shops, equipment rent-to-own transactions, and rental or leasing of tools, party and event supplies, furniture, or heavy construction equipment.

H.B. 500 adds certain deductions from margin tax apportioned to operations in Texas, including deductions for cost of solar energy devices, cost of clean coal projects, and relocation costs by certain taxable entities. H.B. 500 also provides for certain exclusions from revenue and amends the calculation of cost of goods as it applies to pipeline companies under certain circumstances, and as it applies to movie theaters. There is also a $1 million deduction from total revenue for small businesses.

The new sales sourcing rule for internet hosting companies provides that, for reports due on or after January 1, 2014, receipts are considered derived in Texas only if the consumer of the service is located in Texas.

The enactment of H.B. 500 created many changes to the margin tax and cost of goods rule, most of which are favorable to certain businesses. As a result of the more complicated margin tax and cost of goods sold calculations under this legislation, affected taxpayers should review these matters for previously filed returns, audits and future returns for potential refund claims and/or tax savings.