The Four Texas Probate Choices When Someone Dies Without A Will

Since more than half of all Americans never create a Will or estate plan, there is a strong chance you may one day have to help manage this type of estate. Fortunately, Texas provides four viable approaches for handling such matters — each with its own separate requirements and possible disadvantages. They are described below to make it easier for you to discuss your options with your lawyer.

Two approaches to handling an estate after someone died without a Will involve simply filing affidavits. The other two options include having a probate court help determine the official heirs of the person who died – or the formal filing (or request) for either a dependent or independent administration of the estate.

The four ways you can probate a Texas estate when there was no Will or estate plan

I. You might be able to file a Small Estate Affidavit.

   Requirements for taking this approach – if the estate qualifies for it

  • The estate’s assets, minus the homestead and exempt property, must have a total value of $75,000 or less.
  • This affidavit can only be used to transfer title to a house that qualifies as a homestead. If other pieces of real estate are involved that require transfer, then this type of probate affidavit cannot be used.

Potential disadvantages of filing a small estate affidavit

  • At least two witnesses and all distributees of the estate must sign this affidavit. Since each person who signs the affidavit can later be held financially liable for all future transfers or payments made relying upon it, potential witnesses (and other signatories) are often unwilling to assume such a large degree of financial responsibility.
  • This approach cannot be used if the estate has any debts requiring payment. Since a court does not name a personal representative to handle all the estate’s assets and debts, there is no one eligible to handle the payment of debts.

II.  You might be able to file an Affidavit of Heirship    

     Requirements for taking this approach

     While it is not a strict requirement, this option is usually chosen when the only assets of the deceased that require title transfers are pieces of real estate.

     Drawbacks to using an Affidavit of Heirship?

  • Although some financial institutions will allow the transfer of title to other types of (non-real estate) assets under this type of affidavit, that final decision can only be made by that outside entity.
  • No personal representative is appointed in this type of proceeding. Therefore, if the estate involved has debts, no one is authorized to collect all the assets together and then pay the debts.
  • All title companies do not accept Affidavits of Heirship. Furthermore, some of these companies may only accept this type of affidavit after two (or more) years have passed since it was signed.

The main or “qualified” advantage of this approach is that it costs less than the following two ways of managing an estate after someone dies without a Will in Texas.

III.  You can ask a probate court to make a formal Determination of Heirship    

      This option is designed to firmly establish the distribution of assets to all proper or legal heirs, under the Texas probate code’s intestacy provisions.

      Advantages to taking this more costly approach

  • This choice greatly reduces the chances of fraud that are more likely to occur under the first two options named above since they do not involve any court hearings.
  • An attorney ad litem is appointed by the court. This person has the duty to investigate the decedent’s family history before submitting a formal report to the court (prior to its formal ruling on all the evidence presented).

      Disadvantages to this approach to handling an estate when No Will was found

  • This process is more time-consuming. However, it provides third parties with verifiable evidence that the court had legal grounds for approving the transfer of title during its probate proceedings.
  • It is more costly since at least one court hearing will be scheduled.

IV.  You can request either a Dependent or Independent Administration of the estate

       This approach is chosen when the parties involved want the probate court to appoint a formal administrator of the estate. (The only real difference between a “dependent” or “independent” administration of an estate is the degree of court involvement. The dependent type normally requires more court involvement or direction).

    

      Advantages of dependent or independent administration of an estate

  • The court will appoint a personal representative and provide that person with formal letters of administration, granting that person the right to handle all negotiations with third parties regarding the estate’s assets.
  • Third parties are more likely to quickly provide all required documentation and data requested by the appointed representative, helping to streamline the probate process.

     Two possible drawbacks to this approach

  • It is more expensive. While this is usually the most costly way to handle the estate of someone who has died without a Will, it can prove quite wise in the long run –since all matters will be carefully monitored by the court (even when handled by an “independent” administrator). This lowers the chances of a future need to return to court due to challenges based on fraud.
  • It can prove to be more time-consuming. However, many people who can afford this approach consider it a very valid trade-off compared to only using affidavits that may not be acceptable to all parties.

Please don’t hesitate to contact one of our Murray Lobb attorneys when you need help managing the estate of someone else. Our firm has extensive probate and estate planning experience that allows us to provide you with fully trustworthy legal advice.

Key Facts About Obtaining Texas Guardianship Rights

People of all ages can benefit from creating a legal guardianship relationship, especially young children and disabled adults. When someone suffers major injuries in a car accident or becomes seriously ill, they often need a trusted individual to step in and manage critical matters for them. Your lawyer can draft this type of document as part of your overall estate plan.

It is important to keep in mind that guardianship status may be either temporary or permanent, depending on the circumstances. Both young children and seriously ill adults may sometimes need a long-term guardian.

Exactly how is a legal guardianship created in Texas?
This legal relationship develops after court documents are filed indicating that someone referred to as a “ward” (who is “incapacitated” by age or physical disability) needs a person appointed by the court to properly manage his/her healthcare needs or financial affairs. The person appointed to care for the ward is referred to as the “guardian.”

What follows is a closer look at the four types of guardianships available in Texas and the categories of people often designated as guardians of children or adults. The key responsibilities these court-appointed parties must often handle are also detailed – along with alternatives to naming a guardian.

A closer look at the four guardianships currently available in Texas:

  • Temporary/Emergency Guardianship. This type of appointment is made while the court

reviews all available facts to decide who should hold this position on a more permanent or ongoing basis in the future.

  • Guardian of the person and the estate. The person assigned this role must be prepared to manage all the physical care needs and property of the designated ward.
  • Guardian of the person, limited or full – this person will be responsible for handling all the daily needs their ward might have involving food, clothing, medical care, housing, and other basic requirements.
  • Guardian of the estate, limited or full. This guardian only needs to be concerned with managing a ward’s financial affairs and property.

Who is most likely to be appointed as the guardian of a child or adult ward in Texas?

When the ward is a child, the adults most likely to be granted guardianship are named below, in the order they are likely to be considered.

  • The parents
  • An adult designated as the guardian by the last surviving parent
  • Grandparents or aunts/uncles
  • A non-relative who the court believes can competently serve as the child’s guardian

When the ward is an adult, the people named below may be granted guardianship — in the order they are likely to be considered.

  • The person selected by the ward — who made the designation prior to becoming incapacitated.
  • The spouse of the ward.
  • A non-relative adult who the court decides can serve as a competent guardian.

What duties and tasks must a guardian be prepared to handle in Texas?

  • A guardian may need to post a bond with the court to guarantee that s/he will properly handle all appropriate responsibilities and duties. This bond will be treated like an insurance policy to protect the ward’s property and assets — should the guardian act inappropriately and cause financial losses to the ward’s estate.
  • A Texas guardian must be prepared to make all decisions regarding assets in the best interest of the ward. In other words, there must be no self-dealing or improper gain or profit for the guardian.
  • An appointed guardian should try to provide the best quality of goods appropriate to meet all the ward’s daily needs for food, shelter, clothing, medical care, education, and other requirements.
  • Every guardian must be prepared to file an annual account with the court.  In this document, the guardian must specifically list all the purchases and disbursements made during the prior year — using specified funds on behalf of the ward.
  • An annual inventory must be provided to the court, listing all the ward’s current assets.
  • When a ward has special or unique needs come up, it is always wise for a guardian to obtain the court’s permission to purchase the necessary goods or services – unless they pertain to immediate medical needs.

How can these same kinds of needs be met in Texas without obtaining a guardianship?

It may be necessary for your Houston estate planning attorney to create one or more of the following documents to take the place of designating an appointed guardian in this state.

  • You may need to have a Medical Power of Attorney document drafted for you, in keeping with Chapter 166 of the Texas Health & Safety Code.
  • You may want your lawyer to prepare a management trust, in keeping with the terms found in Chapter 1301 of the Texas Estates Code.
  • It may be necessary for your lawyer to create a special needs trust for you.
  • You may want your lawyer to draft a Durable Power of Attorney document that will name or appoint an attorney-in-fact or agent for you.
  • It may help to create a joint bank account for you and a trusted family member.

While the list above is not intended to be comprehensive, it should indicate that there are many other ways to meet the many needs covered by the appointment of a Texas guardian

Please feel free to contact one of our Murray Lobb attorneys so we can answer all of your questions about your estate planning needs. Our firm is also available to provide you with legal advice regarding many other general business topics — and to draft a wide variety of contracts and other documents you need to transact business daily

Why Construction Businesses Should Protect Lien Rights

With the current COVD-19 situation and the fact most businesses are shut down, despite construction being considered an essential business, we are noticing a frequency of situations where the owner has suspended payments on their construction projects. While understandable, it will only compound the financial problem. When this occurs the most important step to take as a contractor, subcontractor and/or vendor is to preserve your lien rights. 

  Protecting your lien rights may not get you paid any faster but having a valid lien will ensure eventual payment. Below are several necessitous steps to take to ensure your Lien Rights are protected.

The First Step in Protecting Your Lien Rights

  The first step in protecting your lien rights is a pre-lien notice. Specifics on the pre-lien notices depend on if the claimant is a “first-tier” subcontractor or a “second-tier” subcontractor or below.

  •   A “first-tier” subcontractor is one that has a contract with the general contractor. A “first-tier” subcontractor only has to give one pre-lien notice.  The notice must be sent to the Owner and general contractor informing them of the unpaid balance not later than the 15th day of the third calendar month following each month the labor and/or material was delivered.
  •   A “second-tier” subcontractor is one that has a contract with a subcontractor of the general contractor.  A “second-tier” subcontractor must give two pre-lien notices.  The first notice must be sent to the general contractor informing him of the unpaid balance not later than the 15th day of the second calendar month following each month the labor and/or material was delivered.  The second notice must be sent to the Owner and general contractor informing them of the unpaid balance not later than the 15th day of the third calendar month following each month the labor and/or material was delivered.

If you have a contract with the owner, you are considered an original contractor (general contractor) and no notice is required.

What to Include in the Pre-lien Notice

The notice to the owner should include the following “funds trapping” language:

“If this claim remains unpaid you may be personally liable and your property may be subject to a lien unless:

              1. you withhold payments from the contractor for payment of the claim, or

              2. the claim is otherwise paid or settled.”

The Second Step in Protecting Your Lien Rights

The next step is to file your lien affidavit in the county in which the project is located.  The lien affidavit must be filed not later than the 15th day of the fourth calendar month after the last day of the month in which you performed labor or supplied material. The statutory notices are deadlines. There is no penalty for sending the notices or filing the lien affidavit early.

What If the Claim is For Retainage?

If the claim is for retainage, a claimant must send the requisite notices and file the lien affidavit for retainage no later than the 30th day after the work was completed.

  The lawyers at Murray|Lobb Attorneys, PLLC are ready to help you with your lien perfection needs. Contact us for consideration of your specific needs. This notice is designed to be informative and no attorney/client relationship is created unless we enter into a formal agreement, hiring us as your attorney. This notice is intended to aid in guidance and is not necessarily authoritative in relation to your specific situation. Because special statutory rules apply to residential construction, this notice does not apply to residential contracts.

Steps to Take Before Searching an Employee’s Work Area or Property

When expensive company property goes missing or an employee reports that a new wallet was stolen from his desk while he briefly left his office, you will want to immediately search for the missing item. However, you can quickly encounter legal problems if your employees have not already consented to such workplace searches.

The best way to remedy this situation is to update your current employee handbook, adding a policy addressing this topic. If you do not have a handbook, it would be wise to draft one now, carefully including a provision about searches, including a statement that they will only be conducted when valid reasons make them necessary. (You should always conduct searches with at least one other supervisor with you – to help document that it was handled properly).

What follows is a brief review of search standards that may apply to different types of employees, the most common items employers often look for during searches – and the importance of never inappropriately touching any employee during a workplace search. You must also avoid detaining an employee in a manner that could be considered “false imprisonment.”

Search standards can vary, based on the employment status of the workers involved

The Texas Work Commission addresses this topic on its website, in an article titled: “Searches at Work – Legal Issues to Consider.”

           1. Legal standards that apply to state and federal government employees. Federal and state constitutional provisions prohibit subjecting these workers to any “unreasonable searches and seizures.” This prohibition is set forth in the Fourth Amendment to the U. S. Constitution, made applicable to the states through the due process clause of the Fourteenth Amendment (under the incorporation doctrine). The nature of this type of violation is discussed further below.

            2.  Standards that apply to private company employees. While the strict standards, statutes and governing case law may sound less strict for these workers, private businesses must still conduct their searches cautiously – or become vulnerable to lawsuits based on one or more of the following claims.

  • Assault and battery. This would likely involve the searched employee claiming that you wrongfully – without obtaining prior consent (or in keeping with known company policy – touched him/her wrongfully.
  • False imprisonment. You detained the worker in a manner that exceeded your rights under the circumstances.
  • Wrongful termination. You cannot fire someone when you do not find the contraband or stolen items you thought you might find. Be sure to have a clear policy in your employment handbook that outlines how many warnings an employee must be given prior to being let go. (However, if the worker is an “at-will” employee, you can terminate that person at any time, without having to state a reason or explain your actions).
  • Negligent or intentional infliction of emotional distress. Always handle search matters in a private setting – where you are not putting the employee’s reputation on the line or subjecting the person to embarrassment in front of others.  When conducting an actual search, always ask all workers in the area to take a work break and wait 15 minutes before returning to their cubicles, offices or nearby work areas.

It is also wise when conducting a search (or disciplining an employee), to have another management official present who can vouch for how everything was handled – prior to writing up a report documenting the events. You may also want to ask the employee to voluntarily sign and date the statement you write up, indicating what took place. Be sure to note that either you acted under the authority of a known workplace search policy – or that you obtained the employee’s advance permission before conducting the search.

What items are employers often looking for during a locker or work area search?

  1. Stolen property. This may belong to the company or to another employee.
  2. Drugs or alcohol
  3. Any type of dangerous weapon, including certain knives. Be sure to address all the types of weapons that employees can never bring to work in your employee handbook.

What might constitute an unreasonable search and seizure?

  1. Searching an employee’s work area or locker without attempting to provide advance notice. However, if this is a right you reserved for the company in the employee handbook, advance notice may not be required. Be sure to note that even if an employee secures his/her locker with a personal lock, you must still be given access to the contents.
  2. Conducting the search in front of the employee’s co-workers. This should always be avoided, even if the other employees must be asked to take a work break or go gather in a nearby conference room until you invite them to return.
  3. Physically touching an employee or yelling while interacting with the person. Be polite and treat the person as you would want to be treated. After all, it may be up to a court to later determine if your company owes the employee any monetary damages.

Can you ever, in any permissible way – physically search a worker’s body/clothing?

This should always be avoided at all costs. However, you can – with another management employee present in a private office – ask the employee to voluntarily empty his or her pockets. You can also ask the worker to empty out the contents of a briefcase, purse or wallet. If the person refuses to do as you ask – and you have no stated company policy in place about searches, you cannot insist that the employee do as you ask.

If you fear some serious theft has occurred, you should inform the employee of your concerns and contact the police. Should the police visit your office, you can allow them to conduct the physical search – if they determine that one is immediately necessary.

While this overview is not intended to be comprehensive, it should provide you with a basic understanding of why all workplace searches must be handled with great care.

Please feel free to contact one of our Murray Lobb attorneys to discuss this specific employment law problem – or any other — at your convenience. We are also available to help you with your general business and estate planning needs. And we can readily draft the contracts and documents that you regularly need.

The Key Terms That Should Be Included in Every Job Offer

When making job offers to new employees, it’s important to provide clear terms so you can easily onboard the new workers and give them a strong chance to succeed. While many of the terms you need to cover are quite basic, it’s necessary to include them since leaving any of them out can complicate your relationship with the new employees.

As the terms set forth below should indicate, most of them should be easy to understand. However, if you think the prospective employee may have any questions, be sure to provide the name and phone number of someone who can provide timely answers.

The following information is presented in the form of two lists. The first one provides the types of information often needed during the first week on the job – and the second list addresses more detailed employment concerns.

Always choose the most accurate words possible for these basic job offer terms

  • Job title or name of the position. Chances for promotions in your company and future starting salaries elsewhere in the future will often hinge on assigned job titles. Try to choose one that emphasizes the new worker’s level of experience or key skills.
  • Full- or part-time job. After noting this status, be sure to state whether the new person will just be working morning, afternoon or evening shifts. If the new employee must work a flexible schedule, always note that fact.
  • Exempt or non-exempt job status. This classification is very important since it determines how employees must be treated regarding overtime pay and other issues. An exempt employee does not get paid for overtime hours.
  • Supervisor’s name and job title. Often, this employee will handle or oversee all initial training that’s required and periodic job evaluations.
  • Basic duties assigned to the new hire. Although it’s best to name some of the key daily tasks the new employee must handle on a regular basis, any list of duties should always end with a statement that the list is not comprehensive – and is subject to change, based on the employer’s needs.
  • At-will employment status. This is commonly assigned to most hourly workers. Be sure to note that this means the worker can be dismissed without any advance notice or any stated reason. Employees can also leave at any time, without giving notice.
  • Base salary. This should be clearly stated, along with information about whether the person is being paid bi-weekly or monthly. You may also want to note that by accepting the position, the new hire has agreed to direct deposit – or whatever other form of payment you have told the employee is standard for the position.
  • Start date. After providing this information, you may also want to note if there will be a training or orientation session on the first day. If the job is a temporary one, you may or may not want to state when you believe it may end.
  • Current contingencies related to job offer. Whenever possible, try to complete all background criminal and reference checks before an employee’s first day. The same holds true for determining the person’s immigration status. However, since there may still be some work left to do, include a paragraph in the job offer noting that it’s contingent on all these checks producing satisfactory results. You also should make sure that they understand the offer is contingent upon signing a confidentiality agreement and/or non-compete agreement or intellectual property rights agreement if applicable.
  • Uniforms or special equipment that may be required and provided by the employer. It’s important to note if uniforms will be provided and if there’s any special equipment that the employee will be given during the first week – that must be returned upon his/her departure from the company.

Job terms related to employee benefits, company stock and other matters

  • General employee benefits. Clearly indicate how soon the new hire will be entitled to receive paid sick leave (if any) and vacation time during the first six months or year. Also, indicate when any company medical insurance coverage may begin – and how much money will be subtracted from each employee paycheck to cover it.
  • Stock shares. State the number of company stock shares, if any, that may be awarded, after a certain probationary period has been successfully completed. You can then indicate how and when additional shares can be earned.
  • Employee handbook and company standards. You should note that all disciplinary matters are based on the contents of the provided employee handbook. Any general or specific company policies or procedures unrelated to discipline should also be set forth in the handbook. It’s often wise to have new employees sign a form indicating that they have received copies of the handbook – or have been informed where to find it online.
  • State your company policy about the unauthorized use of confidential information. Be sure to tell your employees that they are not allowed to use confidential information they’ve been given by any third parties or prior employers while working for you.
  • Bonuses and commissions. It may be wise to have your attorney draw up a separate plan governing these terms – or to at least review the one you wish to give to your employees. Care must be taken to be sure all workers are treated the same regarding their chances of receiving these types of important work incentives.
  • Specific terms related to non-disclosure of any of your company’s proprietary information. It’s always wise to have your Houston employment law attorney draft all such agreements to be sure all new employees know when they start that they cannot later provide this type of information to others.
  • Non-compete terms. These usually state how long an employee must wait after leaving your company before doing any work that directly competes with your business. Check

with your Houston employment law attorney to see how you should summarize this information. It will normally be contained in a separate non-compete agreement that the employee must sign on his/her first day of work.

The two lists above (which are normally combined) will usually meet the needs of most businesses. However, depending on your company’s unique situation, you may want to add terms related to the following topics.

  • Specific work location. If you employ people in multiple cities – or in different locations within the same city — you might want to note this information to avoid confusion.
  • Proper terms of acceptance. You can indicate how the prospective new hire should respond to the offer and by what date.
  • Pre-employment medical tests or exams. Be sure to provide all necessary details and note when these must be completed.

Please feel free to call one of our Murray Lobb attorneys about any of your employment law, general business or estate planning needs. We are also available to draft the various contracts and other documents you need to use on a regular basis.

Creating Final, End-of-Life Instructions to Help Your Spouse

Regardless of whether you’re doing this for your spouse or another family member, it’s important to leave clear instructions on how you want your funeral and final financial matters handled. Since some of these issues can directly impact your heirs and beneficiaries, it’s best to meet with your lawyer so that every important topic is carefully addressed.

Prior to meeting with your Houston estate planning attorney, please gather together and review all the documents related to the topics referenced below. Once you arrive at your legal appointment, you and your lawyer can then discuss each of these topics in greater detail. The suggestions shared below are mainly based on ABA (American Bar Association) materials and a few online resources.

Addressing these financial matters can lessen your spouse’s (or executor’s) burdens

  • Pre-pay the costs of your burial/cremation – if you can afford to do so. Whenever possible, choose the simplest arrangements. You might want to note, in writing, that your surviving family members don’t need to prove their love by spending lavishly on either a funeral or memorial service. If you cannot pre-pay for everything, you should also address the topics noted in the next paragraph.

As your lawyer will remind you, funeral directors are normally required to provide you with a printed copy of all their costs. These lists can be useful for price-shopping. Also, warn your survivors to avoid letting funeral parlor employees who use guilt-inducing tactics. And if you’ve selected cremation, be sure that all costs involved are provided to your spouse ahead of time. Far too often, “hidden” costs are added later.

  • Create some type of emergency fund. Survivors often need extra money to cover unexpected last expenses If you haven’t converted a bank account to a POD (payable on death) status, do so now. Your lawyer can explain how this works in greater detail. Explain where such funds are being held in your letter of final instructions. While insurance policies usually pay off quickly to most beneficiaries, odd events can delay this process.
  • Make a list of all outstanding debts you know about, including all credit card accounts. Be sure to attach a list of all your assets and their present value. Also, state where all your banking and investment accounts are located, along with any IRAs.
  • Indicate where all important personal and family documents are kept, including your Will. Be sure to include all family birth certificates, your marriage license, any divorce decrees, adoption papers – or any prenuptial agreement. Likewise, note where you’ve put all insurance policies, business, bank and financial records – and 401k documents. Copies of all current pension and/or other benefit agreements should also be noted and their locations described.

And don’t forget to note where any house deeds, car titles or paperwork regarding vehicles still being paid off are located.

  • Ask your lawyer to help you create a “precatory” list of personal items. Stated simply, this is a list of personal possessions that you name and set aside for specific family members or others. These usually only have sentimental (and not financial) value.

While a precatory list isn’t often legally binding, it can help prevent dishonest family members from keeping all special keepsakes for themselves. As a recent AARP article noted, many families include individuals who are intent on defrauding everyone out of their fair share of cherished belongings – or any inheritance.

  • Be sure this final letter of instructions states how all your business interests and artistic property are to be handled. If you’re still a co-owner in a business, this may already be dictated by a contractual agreement. Take the time to review this document with your lawyer, so you can accurately state in your letter what business or control options might survive you. It’s always best to resolve such matters in writing, well before your death.

If you’re a celebrated artist of any kind, you should make proper arrangements for specific people – or perhaps an institution like an academic library or museum — to take formal possession, ownership and control of your artwork. This must be done in full keeping with all applicable copyright laws. (Try to fully explain these rights to your intended beneficiaries, long before you pass away).

Additional instructions (recommended by the American Bar Association)

The ABA suggests keeping a copy of your letter of final instructions with your Will and giving a copy of it to your lawyer. Be sure to ask your attorney to provide a copy of this letter to your surviving spouse (or other family members) immediately upon your death – in case they have lost their copy.

  • Note any specific information you want included in your obituary. This can include the naming of a charity you would like to have people give money to on your behalf. You can also ask that this money be given directly to your church or other house of worship.
  • Note where your safe deposit box is and place the key to it in the envelope with the letter, noting that it’s in there. You should also list your lawyer’s name and phone number, as well as the name and phone number of your executor.
  • Your current social security card and copies of all insurance policies. State where these are currently kept. Also, let your spouse or executor know if there may be a need for your family to renegotiate any aspect of their medical insurance coverage with your most recent employer after your death.
  • Contact information for key individuals. Create and attach a complete list setting forth the names, current addresses and phone numbers of all beneficiaries named in your estate documents, 401k plan and insurance policies.
  • Note the location of the last seven years of your tax returns.
  • Grief counseling advice. You might want to leave the specific name of a clinic or its therapists who might be able to offer counseling to your spouse. You can also suggest that your spouse check with the AARP to see whether that group currently sponsors any local support groups for recent widows/widowers.

Please feel free to schedule an appointment with one of our Murray Lobb attorneys so we can help you draft a final letter of instructions for your spouse, another relative — or your executor.

Estate Planning: Becoming a Texas Organ and Tissue Donor

If you’ve ever known someone waiting to receive an organ, you know how stressful the process can be. Most of those requesting help are either fighting to save their lives or to greatly improve their health. Fortunately, there’s a national transplant waiting list that’s been set up to match donors and recipients in Texas and all other states.

Since many people want to help with this critical need, they often ask their lawyers how they can become donors. This article will describe what you should do — besides simply indicating this desire on your Texas driver’s license.

A few statistics are set forth below to help those trying to decide if they’re ready to help others in this way, followed a description of the other steps you should take to be sure your decision to become a donor is faithfully honored in the future.

How many people’s lives are at stake annually due to the need for organ donation?

  • About 20 Americans die each day due to the lack of available organs
  • Since 1988, about 700,000 transplants have been performed in this country
  • Nearly every 10 minutes, a new name is added to the donor recipient list
  • It only takes one donor to save as many as eight lives. In fact, one donor can improve the quality of life for over 100 individuals – just by making extensive tissue donations
  • The most commonly transplanted tissue is the cornea of the eye
  • Roughly 6,000 living donations are made each year. And one-fourth of the donors are not family members or biologically related to the person in need.
  • About 1 in every 26 Americans has a kidney disease without knowing it – that equals about twenty-six million people who might one day require a transplant.

Living donors are also needed. Healthy people can donate part (or all) of a kidney, liver, intestine or lung. Sick patients are also in need of bone marrow and blood from healthy donors.

How do most Texans handle this decision to donate tissue or organs?

States like Texas have tried to simplify this process by allowing those wishing to donate their organs or tissues (in the future) to indicate that on their Texas driver licenses. Residents of the state can also have their Houston estate planning attorney directly state this commitment in their Medical Power of Attorney or Advance Directive. This latter approach can help remove the anxiety from the shoulders of family members once this information has been legally documented in this manner.

The third way people can indicate their desire to be organ donors is to directly sign up with DonateLifeTexas.org . You can learn more about this process by watching the following video created by DonateLifeTexas.org .

Please feel free to contact any of our Murray Lobb attorneys so we can meet all your business and estate planning needs. We look forward to sharing our legal skills and advice with you.

How to Carefully Address Alcoholism in the Workplace

Whenever a new employee starts a job, personnel managers privately hope they’ve adequately screened the person. Hiring workers has become a much more complex task now that so many qualified professionals move freely between long-term positions, the “gig economy” and periods of self-employment.

Finding productive employees is also hard because many people who suffer from alcoholism or “alcohol use disorders” have learned various ways to try and hide their problems.

What exactly is alcoholism or “alcohol use disorder?”

The Mayo Clinic website states that people who experience “repeated significant stress and problems functioning” in their daily life due to drinking, usually suffer from alcohol use disorder.

Those attempting to cope with this daily disorder also struggle with increased drinking in hopes of obtaining the same “high” that helps them escape their emotional pain. Over time, many alcoholics find it hard to even quit thinking about alcohol. Still others stay busy with “binge drinking” spells — or the physical and psychological problems that occur during withdrawal.

Some larger companies have employee assistance programs that can readily offer counseling and other services to workers struggling with addictions and other psychological problems. However, there will always be many workers who remain in denial about their critical drinking problems — and small businesses who simply cannot afford to provide a wide array of special services to their workers.

What follows is a brief review of American alcohol abuse statistics, a list of signs that workers may have drinking problems – and a look at how employers can try to reach out and help employees with apparent alcohol use disorders.

What statistics tell us about alcohol abuse in America

  • Well over 12 million adults struggle with alcoholism. In fact, one 2018 study revealed that 14.4 million adults (at least 18 years of age or older) were battling alcohol use disorder (AUD). Approximately 9.2 million of these individuals were men and 4.1 percent were women.
  • Heavy use and binge drinking are also common. This same 2018 study noted that when adults age 18 or older were asked about their drinking during the prior month, 6.6 percent of them said they were heavy drinkers. And 26.45 percent of them admitted to binge drinking during the past 30 days.
  • Every year, about 88,000 people die of alcohol-related causes.

As these statistics indicate, every business surely has more than a few problem drinkers. And experts estimate that lost productively due to alcoholism can cost American employers between $33 billion and $68 billion each year.

Common signs that employees may have drinking problems affecting their work

  • Repeated, unexplained absences from work
  • Ongoing tardiness
  • Frequent use of sick leave
  • Too many absences occurring the day after payday – or a pattern of taking too many three-day weekends
  • Falling asleep on the job
  • Moody behavior and difficulty getting along with other employees
  • Bloodshot eyes, an unsteady gait – and the faint smell of alcohol
  • Claims of too many sudden “emergencies” during relatively short timeframes
  • A steady stream of assignments finished late
  • Incomplete assignments or clear signs of inadequate effort
  • Ongoing problems with meeting assigned sales or other quotas

How should employers address one or more of these problem behaviors?

  1. You will need to schedule a private meeting with the employee. Prior to this meeting, you should review all recent employee work evaluations and privately talk with the person’s supervisor (who may also want to attend the meeting). Be sure to take notes. Also, make it clear that you’ll be checking back with the employee at a later (specific) date to see if their work and/or attendance record is improving.
  2. If your company has an EAP (employee assistance program), meet with your personal representative of that program prior to the meeting referenced above. It may be necessary to schedule some type of intervention with the employee, after that person is given ample notice of the meeting. This event (which should probably be managed by your EAP contact) can include the person’s workplace supervisor, spouse, clergy or other family members. All who attend must indicate that they’re simply trying to help the person improve their health and keep their job.
  3. In some cases, you are likely to meet up with an employee’s denial. If so, you must still make a referral to your EAP — or remind the person to obtain this type of outside help on his or her own if your company doesn’t provide EAP resources. You must also clearly state that if one or two more unexplained absences (or poor work performance reports) are received, the employee will be terminated. Be sure to have at least one other company official present during such meetings and keep detailed, confidential notes.
  4. You must be prepared to tell an employee who appears to be intoxicated at work to stop working immediately. This is especially true if the person is driving a work vehicle or handling potentially dangerous equipment. You may also have want them to take an evidentiary breath testing (EBT) device.

Employers should avoid taking the following steps when alcoholism may be present

  • Covering up for an employee with a drinking problem
  • Loaning money to the person with alcoholism
  • Helping the tardy employee make up assignments later, instead of disciplining him/her
  • Requiring co-workers to complete the apparent alcoholic’s assigned work
  • Allow a spouse to call in absences for the employee

Hopefully, the problem drinker will respond to your outreach efforts, agree to a temporary term of leave and then follow-up care. If all goes well, this person will then be able to carry a normal workload again. While this is always a very difficult problem to handle, it’s important to remember that those who do recover from an alcohol abuse disorder may one day become your most loyal employees, grateful that you gave them a chance to fully address their problems.

Please feel free to contact one of our Murray Lobb attorneys when you need help deciding how to respond to this type of employment law issue. Our office also remains available to help you draft any contracts or other documents you may need while running your business.

Drafting Valid Texas Non-Compete Agreements

Although Texas courts will uphold valid non-compete agreements, they expect these documents to contain clear and reasonable terms. In addition, Texas employers can only execute these types of ancillary agreements when they’re directly related to a main document like a valid employment contract.

Companies that ask workers to sign these agreements must also make sure they’re offering proper “consideration” to each employee. Simply providing someone with continued employment will not be considered adequate. The employer must be offering such valid “consideration” as a definite plan to share highly valuable “trade secrets” or unique, proprietary information with each employee required to sign a non-compete agreement.

Basic terminology regarding these agreements

Covenants not to compete are also sometimes referred to as non-compete agreements or “non-solicit” agreements. That latter term refers to the departing employee’s promise not to solicit any of the former employer’s customers until after a set time period noted in the agreement has ended.

In some cases, the shared information might just be limited to the the names and addresses of the employer’s current customers. Of course, the validity of all terms set forth in a non-compete agreement may one day be subject to a court’s interpretation.

What follows is a closer look at the terms and definitions governing Texas non-compete agreements. They’re set forth in Section 15.50 (and following) of the Texas Business and Commerce Code. Stated succinctly, non-compete agreements must set forth reasonable time limitations, detail the scope of activities to be restrained – and describe the geographical area to be covered. This article concludes with a discussion of how you and your Houston employment law attorney should respond if you learn that a former employee has violated his/her covenant not to compete.

A reasonable limitation on the geographical area you seek to control

Stated simply, your agreement will probably be viewed as valid by a court if it only restricts the former employee from competing against you (or working for a competitor of yours) within the same basic geographical area where s/he worked while still employed by you. While a broader area might be considered legitimate, you might have to justify that to a court one day, based on unique aspects of your business industry or other similar issues.

Courts often frown upon these types of covenants when they’re overly broad. The law favors free trade and competition unless a greater employer right (or threat to employer interests) can be clearly established.

A reasonable time period is referenced for restricting the former employee’s activities

Although there don’t seem to be any legal experts willing to name a specific time period you should choose, the consensus appears to be that you shouldn’t make this part of the covenant unduly burdensome.

Speaking in very general terms, if you name a time period much longer than one or two years, (directly dependent on the nature of your company’s work), your lawyer may have to justify that longer time period in court. After all, people are entitled to move on with their lives, regardless of whether you fired them — or they simply wanted to do something new in their work lives.

The scope of the activities being restricted must be fair and reasonable

You normally cannot completely restrict a departing employee’s best options for finding new work. For example, assume an employee has worked exclusively in the computer field for all his or her life, up until leaving your firm. A court would probably consider it overly burdensome if your non-compete agreement forbids that person from accepting or soliciting all types of work in that very broad field.

However, if that employee provided you with highly specific work in a unique sub-field of computer science, you might be able place a restriction on that type of work for a relatively short period of time. Reasonableness is crucial.

What can you do if you discover a former employee is violating a non-compete agreement?

      A. When the questionable behavior does not raise an urgent concern

If that former employee signed what you believe is an enforceable covenant not to compete, you can ask your Houston employment law attorney to take one or more actions on your behalf. However, if the need to stop the past employee from further infringing your rights is not immediate, your lawyer can start by sending the former employee a letter, reminding him/her of the agreement and of your belief that s/he is likely violating it and must stop doing so.

Should you again learn that the former employee is still violating your agreement, you can also contact that individual’s employer and state your concerns, noting the earlier letter sent by your attorney.  If the infringing activity continues, you can file a lawsuit. (Employers are often tipped off about such questionable behavior by current, loyal customers who’ve been recently contacted by the former employee.)

     B. When the wrongful behavior could cause immediate damage to your company

If you believe that you’re about to suffer irreparable harm due to the former employee’s current use of your company’s “trade secrets” or contact with your customers, your lawyer can ask a court to issue an injunction. If granted, this should put an immediate stop to the alleged, illegal activities.

Should the judge decide that the current threat posed to your company is highly significant, s/he can even grant a temporary restraining order (TRO) that prohibits the former employee from doing anything further that could violate the agreement until a first hearing can be held. Anyone who ignores a TRO (or violates one) can be treated as being in contempt of court. That person can then be punished with a fine, some form of imprisonment – or even possibly both.

Conclusion

Always remember that Texas courts demand that all terms in your non-compete agreement be reasonable. Former employees do have a right to move on with their lives and find new opportunities to support themselves that do not directly interfere with your business or its current viability.

Our Murray Lobb attorneys welcome requests for legal advice about covenants not to compete and other employment law issues. We’re also fully equipped to address most corporate and business law matters, as well as your estate planning needs. Please feel free to contact us if you ever need us to draft any contracts or other documents required by your business.

Key Estate Planning Advice for the Terminally Ill

Nearly everyone expects to live to their full life expectancy. However, as we grow older, we begin to see many friends and loved ones die early due to cancer, heart disease or various tragic, unexpected events. For this reason, every adult should create an estate plan and remain ready to modify it once a terminal illness or tragedy suddenly unfolds.

After all, our family members, friends and favorite charities depend on us to maximize the gifts we make through our Wills, trusts and other testamentary devices.

To get ready for this process, you should first make a list of all your current assets (and their values) and then schedule an appointment with your Houston estate planning attorney. When you meet, your lawyer can explain the choices you’ll need to make that can simplify the process, while also decreasing the tax burdens on your heirs and other beneficiaries.

Here’s a look at some of the ways that terminally ill people – or those aware that the end of life is fast approaching – can adjust their estate plans to maximize the final gifts they can give to all those they wish to help.

Specific steps for the terminally ill to consider while updating or creating an estate plan

  • Decide if you should set up a revocable trust. This can help greatly reduce all the tasks the appointed executor must handle — and can lessen the chances that any of your estate will have to pass through the probate process.
  • If you’re a parent or grandparent, consider creating a private annuity. This will allow you to transfer substantial assets to your loved ones while retaining a lifetime annuity. If you do not live to your expected lifetime expectancy, as set forth in actuarial tables maintained by the IRS, most (or all) of your assets may not be taxed.
  • Make sure you’ve fully used up all your current annual exclusions. As many taxpayers know, every American has the right to give $12,000 a year to multiple donees. And if your spouse agrees to all the gifts you’d like to make during the current tax year, you could give away a total of $288,000 — tax free. It’s also possible that other “leveraging” techniques involving family partnerships could greatly increase that amount.
  • Check to see if all your assets are titled properly (so your beneficiaries will reap the best tax benefits). Your lawyer can explain how this can help you obtain the full lifetime exemption from estate taxes. In some cases, it may be best if many assets (including the highly appreciated ones) are held in the name of the terminally ill spouse. When this is allowed, it can help minimize all the capital gain taxes that might otherwise accrue when various assets are sold after the terminally ill person passes away.
  • Review all the assets held in your 401k and other retirement accounts. This can also help you recall what you’ve already bequeathed to various beneficiaries. Be sure to bring all the updated information about these accounts to the meeting.
  • Create an update list of all named beneficiaries and their current addresses. Everyone will appreciate being able to receive your gifts as quickly as possible.
  • Consider placing a certain amount of cash in your checking or savings account so that your executor can easily pay your final expenses using that money.

If you’re the terminally ill patient, seriously consider asking your spouse, executor, other trusted family member or close friend to take part in this meeting with your attorney. This can help you avoid forgetting important assets and beneficiaries. It can also remind you to tell this trusted person where you currently keep all your real estate deeds, the passbooks for all your investment and saving accounts — and all your online account usernames and passwords.

While the information above isn’t intended to be fully comprehensive, it should provide you with an accurate idea of the types of matters you and your lawyer can handle during your upcoming appointment.

Finally, please be aware that your attorney may be able to arrange an initial, teleconferencing appointment if that will work best due to your serious illness. Finalized paperwork can then be signed within a short timeframe.

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Please feel free to contact your Murray Lobb attorneys for help with any of your estate planning or general business needs. We try to remain available to provide you with prompt legal advice and the various contracts and other documents that help keep your business running.