Marjorie Perry\’s Legal Blog

As I write Wills for my clients, they frequently have a difficult time deciding who to name as their executor — and an even more difficult time deciding who the alternates should be. 

Naming your executor is a major decision and should be given the consideration it deserves.  Naming a spouse or child who does not have an idea about how to handle affairs is not a wise choice; however, if those individuals are “trainable,” they should be trained.  Regardless of the past, chances are good that they will be put in a decision-making position and be confronted by responsibility in the future.  I am a strong advocate of enlightenment and personal development.  It will serve you well to know that you are leaving your affairs in capable hands . . . and it will serve them well, by helping them grow as individuals.

Appointing third-party executors (like your attorney) is not something I generally advocate.  In fact, I do not allow my clients to appoint me as their executor.   If your estate rivals that of Bill Gates, there may be a need to bring in third-party fiduciaries — probably trustees.  However, if you have a relatively modest or a moderate estate, I believe it is generally best to “keep it in the family.”  The executor will, of course, need to consult with an attorney.  The attorney will prepare the paperwork that needs to be filed with the Court and will, of course, make certain that the executor meets statutory time lines.  The attorney will also be there to counsel the executor if there is a question about the distribution of estate assets. 

The attorney, however, is not part of the family and, no matter how well he or she knew the Testator (the person who died), the Testator’s blood does not course through the attorney’s veins (nor does the Testator’s mindset) and the attorney simply cannot become an instant part of the natural family dynamics that will be involved.   If there is a responsible adult beneficiary in the family, my recommendation is to appoint that person — a person who can and will implement the Testator’s wishes, while “living” the family dynamics.  This, of course, is considering the “fall out” of a Will from a personal and emotional point of view.

Considering the “fall out” of a Will from a expense point of view is a different matter.  Testators who don’t want to burden their loved ones with serving as executor and, therefore, appoint their attorneys frequently have no idea how much it will cost to have the attorney serve — in other words, how much it will deplete the estate they have amassed and want distributed to specific people and entities.  Where it might take 8 or 10 or 12 (maybe 15) hours to probate a simple Will, notify the beneficiaries, and file the Inventory, Appraisement & List of Claims, it can take many more hours to gather, secure, and distribute the assets — not to mention dealing with the beneficiaries. 

Section 241 of the Texas Probate Code limits the amount an executor or administrator can be paid for performing fiduciary duties.   If the estate is too small, an attorney may not be able to afford to work for the amount allowed.  If the estate is large, allowing the maximum may be ludicrous.  A reasonable hourly rate is probably the standard if an attorney serves as the personal representative; however, there is still a statutory limit on the amount that can be charged.  This Section pertains to all executors; however, many individuals who name beneficiaries as executors stipulate that the shall serve without compentsation.  If a Testator provides for a beneficiary to be compensated for his or her fiduciary role, it is a safe bet that the Testator wants the beneficiary to have the money.  Nearly all people who appoint third-party fiduciaries want them to be paid a fair amount; however, generally speaking “fair amount” probably would not or does not mean the same thing to the Testator, the third-party fiduciary, and the beneficiaries. 

If you need guidance on who to appoint as your executor, I will be glad to counsel you.  I can also raise additional issues that need to be considered and will help you select the right person to be your executor.  I am just a phone call away — Marjorie Perry at Smith & Garg, in The Woodlands, Texas; 281 210-0010.

April 21, 1836 was the original San Jacinto Day.  Today Texans celebrate 172 years of freedom from Mexico and the tyrant Santa Anna, who is no more well thought of in Mexico than he was anyplace else in the world — especially Texas.  On this day, 172 years ago Santa Anna, sometimes referred to as the “Napoleon of the West,” met his match in General Sam Houston. 

Houston, Sherman, Burleson, Hockley, Karneds, Millard, Lamar, and other early Texas leaders (military and political) led one of the most amazing military victories ever.  The Battle of San Jacinto, which took place in Harris County (near La Porte, just east of Houston), lasted only 18 minutes.   After Deaf Smith, the Texans’ scout, announced that Vince’s Bridge had been blown and the Mexicans would have nowhere to retreat, Sam Houston mounted his magnificent steed, Saracen, and personally led eight hundred Texas troups into a battle that woke nearly twice as many Mexican soldiers and Santa Anna took their siestas.   As they responded to the surprise attack, the Mexicans heard the now-famous battlecry,  “Remember the Alamo!  Remember Goliad!”  In the end, 8 or 9 Texans were killed and another 17 were wounded; 208 Mexican troups (including 1 general, 6 colonels, and 17 other officers) were killed, 630 wounded, and 730 taken prisoner — among them Santa Anna.  Santa Anna soon signed the Treaties of Velasco, but it was another 12 years (at the end of the Mexican-American War in 1848) before Mexico finally acknowledged, in the Treaty of Hidalgo, that Texas was no longer a part of Mexico.

During 10 of the 12 years between San Jacinto and Hidalgo, Texas was a nation — the Republic of Texas.  In 1846, Sam Houston (a former President of the Republic) and Thomas Rusk (who was Secretary of War and gave the “go ahead” for the Battle of San Jacinto, and who is our current Senator Kay Bailey Hutchison’s ancestor) went to Washington, D.C., as the first U.S. Senators from Texas.  With the admission of the Republic of Texas, which is the only nation that has ever become a part of the United States and the only State that has ever entered by treaty (as opposed to being annexed), the United States increased its territory by approximately one-third. 

Although many of my friends are descended from Texas revolutionaries, I did not have an ancestor at the Battle of San Jacinto or, for that matter, any of the major events of the Texas Revolution.  As we like to say in Texas, however, my people got here as soon as they could — helping settle the Republic and making me a proud 6th generation Texan, who, just last week, visited the graves of three of my Republic of Texas ancestors in San Angelo.   Each of them and all generations of my family since then have always paused on April 21 to pay homage to those who carved out the Republic of Texas. 

My family is not alone in its sentiments.   Today, wherever an Aggie is in the world, he or she will pause and hold Muster to honor the fallen heroes of Texas A&M.  Tonight, the Tower at the University of Texas in Austin will burn orange in honor of the victory at San Jacinto.  Today, there will be a ceremony at the San Jacinto Battlefield.  Today, there will be people throughout the State of Texas who pause to honor our ancestors . . . and, wherever they are, Texans will pause to remember our heritage. 

As an estate planning attorney at Smith & Garg, my Texas heritage and my American heritage serve me well.  Our ancestors have left us a marvelous legacy.  We all have an obligation to preserve, maintain, and improve that legacy and to safeguard our heritage (whatever it may be) for future generations.  Part of doing that is ”getting your affairs in order.”  If you do not have a Will and Advance Directives, this may be a good time to give me a call and let me help you plan for your descendants’ futures, as well as for your own.  My name is Marjorie Perry; the number at Smith & Garg in The Woodlands, Texas, is 281 210-0010.

The State Legislature enacted laws dealing with genetic testing for the purposes of determining heirship.  These laws became effective September 1, 2007 and are tied to procedures already in place for genetic testing to determine paternity in family law cases.

If heirship is at question, the Court may, on its own or on motion of one of the partys, order one or more individuals to submit to genetic testing.  The Court also has the power to order additional testing, if necessary, as well as the power to order who will pay for the testing.  If the results are contested, experts may be called.  After hearing all evidence (including rebuttable evidence in the form of genetic test results) and testimony, the Court rules on the heirship at issue — if possible.  If the genetic testing does not ifdentify or exclude a tested individual, however, the Court may not dismiss the proceding and must hear “the results of the genetic testing and other relevant evidence” before making a determination.

If a new heir is determined, the Court may also order that an individual’s name be changed and that the bureau of vital statistices issue an amended birth record for the individual.

The attorneys at Smith & Garg can help you with matters such as the issue of genetic testing — whether is is for an heirship or for a family law matter.  If you need representation in an heirship proceeding, call me, Marjorie Perry, at 281 597-8080.  If you need help establishing paternity, call either of my colleagues, Jennifer Ray or Sherea Vitelli.  We are all hear to serve you in our respective fields.

In doing comprehensive estate planning, thought needs to be given to disposition of remains.  If you have definite wishes about your remains, you need to let them be known . . . and you may need to make some arrangements before the time comes.

When you have a Will and Advance Directives drafted, you can go further; however, most people don’t.  Among other useful tools, there are organ donor forms and pre-paid funeral plans.  There is also a document called Appointment of Agent for Disposition of Remains.  Thinking that you can simply make your wishes known in your Will is not realistic.  Wills are not generally probated before funerals and memorial services take place.   Sometimes, they are not even found before the service. 

Organ donation is a wonderful program; however, it is not for everyone.  Then, too, there is the question of what you would allow to be harvested — internal organs, eyes, skin, what?  Is there a limit to your generosity?  If so, it can be specified when you sign the form.

Burial insurance is nothing more than a relatively small life insurance policy.  If you don’t know where you will be buried, taking out a policy specifically for this purpose may be a wise thing, but make certain to ask about the beneficiary designation, assignment of the policy, and other ways to make it serve the purpose for which you are buying it.  Know, too, that (depending on all the “ifs, ands, and buts,” it may only be available to reimburse whoever pays for the service (if the funeral home handling your arrangements will not take an assignment). 

Pre-paid funeral plans give many of my clients great peace of mind.  If you have a funeral plot somewhere and know that you will be buried there, pre-paying for everything could save your estate a great deal of money … and your family a great deal of grief.  Many people even use the same funeral home for generations.  If you don’t want a funeral, but do want a memorial service, pay for the expenses involved.  Pre-paid funeral plans are nothing more than burial insurance.  Funeral homes (and many cemeteries) can furnish them. 

Like any other contract you make, check the terms.  Ask a lot of questions.  You may be surprised with the coverage provided by most pre-paid funeral plans.  They generally cover the bare minimum; i.e., the casket and vault, embalming, and the actual interment.  They may or may not include the hearse, transport vehicles, and/or family cars (probably not).  They do not include the plot (or mausoleum space), the clergy, the church rental (if applicable), the police escorts, the newspaper obituary, the family flowers, the death certificates, the headstone/footstone, or other “miscellaneous” expenses.  Generally speaking, however, you can include any or all of the “extras” . . . you just have to ask; and sometimes you have to be resolute.    Like everything else, funerals are becoming more and more costly.  If you purchase a pre-paid plan (and don’t use it for several years), you will probably have worked a pretty good deal . . . and created one less burden for your family.  They still have to plan the service, but they don’t have to worry about whether it is being done according to your wishes or how to pay for it — or, at least, some of it.

I am also an advocate of writing your own obituary.  Think of it as the ultimate resume.  Many people keep an updated resume in their computer files.  What a gift to your loved ones to leave an obituary . . . something that is frequently very difficult to prepare, given all of the mental demands of the moment when it is needed.

As you age, you may come to view the prospects of these devises and tasks differently.  You can always change your organ donation form or redesignate the beneficiary on a burial policy.  You may or may not be able to transfer a pre-paid funeral plan to another funeral home; chance are it can be worked out. 

Whatever you want, make your wishes known and do as much as you can to see that they come to fruition.  Most of us like having control; this sort of planning and preparation is the ultimate in control and generosity of spirit.

The attorneys at Smith & Garg do not sell insurance policies of any sort; however, we can help prepare organ donation forms and Appointments of Agent to Determine Dispositon of Remains.  Likewise, we can help with your more routine estate planning documents, such as Wills, Trusts, Statutory Durable Powers of Attorney, Medical Powers of Attorney, Directives to Physicians & Family, HIPAA Releases, and others.  In fact, I am one of the attorneys at Smith & Garg who forcuses on this area of the law.  It would be my pleasure to help you with these documents . . . and to help you gain the peace of mind that comes with having them.  I am as close as the nearest phone.  If I can be of service to you, call 281 597-8080 and ask for me — Marjorie Perry.

As of September 1, 2007, the Legislature has made it possible to probate a copy of a lost Will.  Additionally, “the cause of the non-production of [the original Will] must be proved, and such cause must be sufficient to satisfy the court that it cannot by any reasonable diligence be produced, and the contents of such Will must be substantially proved by the testimony of a credible witness who has read the Will, has heard the Will read, or can identify a copy of the Will.”

 So, if the Will was destroyed in a hurricane, fire, flood, or other natural (or unnatural) disaster, the person may not have died intestate (without a Will) — if there a copy of the fully executed document can be produced.  If disaster strikes, however, the best tactic is to rewrite your Will . . . thereby leaving no doubt.  Chances are the attorney who wrote it still has it on the computer … or a copy can be scanned in.  If so, the cost should be very reasonable to reproduce the Will “as is” or with minor changes. 

The attorneys at Smith & Garg, myself included, will be happy to work with you on writing a new Will or replacing one that has been destroyed . . . in fact, I would like nothing better than to meet with you and counsel you on what a customized Will Packet would consist of in your case.