Gun Trusts, ATF 41P update

Image result for atfFinally, at long last, we have some clarity on what and how the ATF will be regulating the use of "gun trusts" for purchase of National Firearms Act items.

On January 15, the final rules were published in the Federal Register, so we have 6 months to stay under the old rules until these become effective.

Why they changed things:

 "The goal of this final rule is to ensure that the identification and background check requirements apply equally to individuals, trusts, and legal entities. To lessen potential compliance burdens for the public and law enforcement, DOJ has revised the final rule to eliminate the requirement for a certification signed by a chief law enforcement officer (CLEO) and instead require CLEO notification. DOJ has also clarified that the term “responsible person” for a trust or legal entity includes those persons who have the power and authority to direct the management and policies of the trust or legal entity to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of, the trust or entity. In the case of a trust, those with the power or authority to direct the management and policies of the trust include any person who has the capability to exercise such power and possesses, directly or indirectly, the power or authority under any trust instrument, or under State law, to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for or on behalf of the trust."

What this means: 

1. No more CLEO signoff. This means as an individual purchaser, (no trust) you don't need the sheriff (nor his deputy, if you're Bob Marley).  Additionally, they removed the proposed threat of having everyone on a trust having to get the CLEO sign off. Copies of applications just get sent to the CLEO. This is a good move.

2. Fingerprints, passport photos, background checks for all "responsible persons." If  (more) background checks help reduce crime and prevent weapons from getting into the hands of those who should not have them, I'm all for it. I still won't believe the justification for this (trusts and entities were allegedly "exempt" from the background check requirements) is that a trust was a free pass for bad guys to get machine guns. Why does the application process take up to a year? I can't fathom a scenario that the ATF does not check the names of all parties listed on a trust, nor does any reputable dealer not check the purchasing individual. But such is life, and after mid June, all your named Trustees, and beneficiaries will likely need to have the new form (fingerprints and photo) to send off.

Take Away:  

As of right now, nothing changes. As of June, we are in a new regime. It will be a little easier if you purchase an NFA item as an individual, and a little more paperwork if you use a trust after that point. Again, the only way for multiple individuals to possess a "shared" item individually is to use the trust or other entity, so if that is your goal, the trust will still be the recommended path. Happy (quiet) shooting.





Probate options when its been more than 4 years...

Time flies. The usual scenario is parent 1 passed away, parent 2 passed away 5 years later, and now the kids are stuck with a mess.

Today we will talk about what happens if the decedent had a will. 

In Texas, you have 4 years to probate a will, in general.  Thankfully, you still have options since we often get passed that point. What you need to do largely depends on what the person had that needs to be transferred.

1. If there is only stuff (pots and pans, personal property) to deal with:

You don't have to do anything. Just hopefully follow the decedent's wishes.

2. If there is real property or financial accounts in the name of the decedent:

You have to do something. In Texas, you can "probate the will as a muniment of title" after 4 years, just like you could before 4 years have passed. The hurdle here comes in that you will have to show good cause that you are "not in default" by waiting more than 4 years, but a reasonable "I didn't know" is usually good enough, and most courts will approve it. You also have to get service on all those who would be heirs at law (if there was no will) or have them sign off on a waiver requesting this process and that they are in agreement. This makes sense, because without the will, the heirs at law would inherit the estate. This can be tricky if the will changes who would be the heirs. Some counties also require the appointment of an attorney ad litem, which is an added cost, so check with your local rules.

This is sufficient to pass title to real property, and the preferred probate process if you don't have any debts (other than those secured by real property, like a mortgage).  This is what I like to call probate light, as there are fewer requirements (no inventory, no notice to creditors. etc.) and its great for everyone. This process should be sufficient to transfer title to bank and other financial accounts, including insurance. Most of the time it is, but I have had varied success with certain national banks and insurance companies (not naming names, chase and bank of america, you know who you are.)

3. If you are stuck with one of those out of town banks who require letters of some sort:

You have to go ahead and bite the bullet of an administration. If you can get all the heirs on board it can be independent (preferred, cheaper) instead of dependent, but its just like if you had no will at all, This is the penalty for waiting too long.


Take away:

If you are faced with the death of a loved one or are the named executor of a will, there are options. If you waited more than 4 years to deal with it, those options shrink, but you still have some choices. There is never an ideal time to process or handle the business that comes with losing a loved one, but thankfully there are processes in the Estates Code that allow for some simplified procedures. 


Caselaw Updates: Tortious Interference with Inheritance Rights

I don't love continuing legal education classes.  Here's why:

1. I don't like many things that are mandatory, and they are.
2. I'm surrounded by lawyers.
3. They are expensive.
4. They are usually in an overly cold/hot room and sometimes via video, which is not an ideal learning environment, (albeit a solid napping environment).

I don't love the dentist either. But both are necessary evils. One of the best CLE's is the annual Advanced Estate Planning and Probate seminar, which highlights updates in the law and new techniques to employ.

Some highlights:

Caselaw

Tortious Interference with Inheritance Rights

There is a cause of action/tort in Texas called "tortious interference with inheritance rights." Sort of. Sort of, as its only recognized and mentioned in some general treatises (Restatement of Torts) and by a handful of cases.

What that means is, if you are in the RIGHT court, you should be able to recover damages from someone who does something improper that causes your inheritance to be diminished.  It is fairly difficult to get an award for this, but it seems the way to punish someone for trying to steal an estate. To do so, you need to prove:

(1) that an interference with one's property or property rights occurred;
(2) such interference was intentional and caused damage; and
(3) the interference was conducted with neither just cause nor legal excuse.

For example, a housekeeper/caregiver forging a bogus beneficiary designation or will on the deathbed of your parent. Or a sibling unduly influencing that parent to cut you out and leave everything to them. Just filing a will contest though, is not tortious interference.

Anyway, two recent rulings affect this tort.  In Jackson Walker v. Kinsel, the Court of Appeals in Amarillo (7th District, Texas) held that actually, there is no tort at all. Their logic is that the Fort Worth Court,  the Texas Supreme Court, and the Texas Legislature haven't spelled out that it actually exists in Texas, so they are not going to do it.

Takeaway: Ok, I get it, courts are not supposed to create law. This however is a bad ruling: its a recognized tort, its a good tort (there needs to be a damages mechanism for people who try and steal estates) and this essentially says if you're in the Amarillo jurisdiction, there really is not any real downside to try and steal someone's inheritance.  This is such a rampant area, and the enforcement of it is almost nonexistent. We need to punish folks who do this, else there is no disincentive for the next one.

The other ruling, In re Hannah, says a tortious interference with inheritance case is filed like a normal tort damages case, if there is no underlying "probate proceeding." Ok, big deal. Well, while expressly acknowledging that tortious interference is a legit cause of action, it can be the only cause of action. Just not in Amarillo, apparently.


Conclusion: There is a theory called tortious interference with inheritance rights where, in theory, you can get money damages against someone who tries to steal/take away/interfere with your inheritance. Just not in Amarillo, for the time being, and likely some other places. If you want to steal inheritances, do so in Amarillo.


I'll write more on updates as they come along, but in a semi-unrelated aside, if you watched the HBO documentary Gasland, you likely saw the sad story of the Town of Dish, who have filed suit against various energy companies for their crashing property values and damages from the pollution and emissions from the oil and gas development and processing in their town. Apparently they lost a summary judgment ruling at the trial court, but our friends at the Amarillo Court of Appeals have them back in the game. Kind of a fun read, if you are into such things.








Life Insurance: Change your Beneficiary Designations..or else

I have written about life insurance before.  In general, I'm not crazy about it, but for some folks it makes sense. I go to a lot of lunches and seminars were different products are presented, and while some are only good for the broker, lots of them offer some really compelling benefits. But I digress.

Where life insurance affects most of my clients is when someone did/did not make a beneficiary designation, or change one after their family situation changes.

Example:

Harry Husband and Wendy Wife have two (2) children. Wendy is Harry's beneficiary on their life insurance policy he has through work, and under his will. Their life is great. Until Harry finds out one of "his" children is actually Pete Postman's. Sadly, they get a divorce. Harry later remarries to Sally SecondWife, and passes away after a lovely retirement spent watching Hill Country sunsets, having never thought about or updating his estate planning.

What happens?

It depends, but probably a lawsuit.  If the life insurance policy was a private company administered policy, under Texas law (and lots of other places) the Texas  Family code will treat your ex-spouse as pre-deceasing you, so it would go to your backup beneficiary or just into your estate. Same rules apply for your will, and financial accounts that are not dependent upon ERISA.   Erisa says your beneficiary designation holds up, so if you have a 401k or similar retirement, you better change it. Also, there are a variety of policies that are governed by Federal law (namely, FEGLIA) that have strict rules, and require an update of your beneficiary instead of automatically updating it for you.


Ok, well that's not really fair, is it? How can my no-good ex-wife get something she isn't entitled to?

Conclusion:

Your will is only part of the picture. For most, the bulk of your assets are going to be in the form of an IRA, 401k, bank account, insurance or other. You probably filled out a beneficiary designation when you set up the account. You likely forgot about it since then. If you have experienced a change in marital status or family composition, you have a task to check and update all your various accounts, or run the risk of your estate ending up where you did not intend it to be.





Efiling: Tips, Tricks, and Conspiracy, and a primer on creating (free-ish) Text-Searchable PDFS

Image result for efile texasI really don't like efiling.  I do not think I am alone. I laud the clerks and technicians who have spend countless hours getting trained, working out the bugs, and helping me when my document was not "text searchable" or "submitted as a secondary lead document, not an attachment."

For those of you who are not so inclined, Texas has gone to a mandatory, paperless "electronic filing" system commonly known as e-file, starting in the big counties in 2012 and now rolling through us smaller burgs.  It should be great: reduce paper, increase efficiency, seamless interface.  Except it is not any of those things, yet.

Paper Reduction:

I use as much, if not more paper than before. (Disclaimer, I am an avid recycler, lover of trees, and I majored in environmental science in college: I am all for anything that reduces waste). Sadly the legal business is a paper heavy business, and we essentially sell documents. So, it really doesn't help there. Clients want paper, not just an email attachment. Deeds still require paper, and electronic signatures are not ubiquitous yet.

I can, however, see some courts that are completely paperless (Collin County is pretty good) reducing their physical storage requirements, and only printing off final orders upon request. I'm ok with that, but if you don't store physical paper...you have to store it electronically. This should be great, if there was access to these public records. There is, but you have to pay for it.  It would cost my firm $180 annually, just for Collin County.

Increased Efficiency:

The most common response when I asked the clerks and other representatives about why we were required to E-File,  was "it will save you so much time."  Yes, in theory, it has saved me a trip or two to the local courthouse, and it is nice when filing in another county to not have to drive an hour down to the lovely Dallas County courthouse, pay for parking, etc.

Just like the advent of the computer word processor, less time doing the actual tasks required for lawyering should result in more efficiency, but the only person who gets the benefit there are the clients. As a member of society who has paid a lawyer, this is a good thing. As a lawyer who tries to get paid, this is time I would have normally billed a client for travel and filing, which is much more legitimate than "spent 2 hours trying to make pdf document small enough and text searchable, after getting filing rejected by E-file."  I don't think that is a fair cost to bill to a client. So, I eat the cost, bill less, and then I pay a $2 fee for a proposed order, an extra $25 for any filing over $25 pages, etc. I am not sure there are any actual savings at the end of the day, and there are additional costs, in addition to the filing fees I have paid.

Seamless Interface:

The state E-Filing website is bright and glowing. File with us! It will be great! Then it shows you 12 options to choose from, some free, most not. More costs. So, being the small firm I am and not wanting to pass costs on to my clients, I picked the free, state-sponsored e-filing system, https://efile.txcourts.gov/ . Review: its ok. The interface is not super-intuitive, but you can pick your way through it with practice. The problems come in that if you do not have adobe acrobat (or similar program).

Example: You have a pleading that has 100 pages, with exhibits and other stuff. Most were old pieces of paper you had to scan it. In olden times (last year), you file the paper at the counter. Today, FILING REJECTED. Why? Because you need to pay adobe $299.00 for at least the standard version of acrobat, to produce a pdf file that is text-searchable, has bookmarks, and is small enough to not exceed 35 mb. I thought this was supposed to be free?

Yes, there are cheaper competitors to adobe. Foxit is a decent one, but even that costs $89.00 without the upgrade protection. Who is supposed to pay for this additional cost, that I didn't need before E-Filing told me I did? I can't just bill it to the Penske file.

Yes, there are the pay-for E-Filing providers that claim to do this for you, but again, you have to PAY.

So, I set out to see if I could do this for free.

Tips:

I work for a firm that is trying to adopt and adapt to new technology, but sometimes that is difficult to execute. I'm not that old, so I'm pretty tech savvy, but even some of this was a task for me. That said, the key here is producing a text-searchable PDF document.

STEP 1.

Get your document, exhibits, etc., in PDF form. You can do this from word, wordperfect, or scan them in. There are also free pdf converters out there, and you can even create them from your smartphone. If you can't do this, stop reading now.

STEP 2.

Compile your document: Some of the paid programs have the ability to move and cut and combine pdfs, in free land you need one like PDF FILL.  It is rather rudimentary, but it does the job.

STEP 3.

Now in complete form, you need to have a "Text Searchable" pdf, which means a program has to run optical character recognition or OCR on it. Pretty cool technology (what google has used to digitize old texts and libraries) makes the documents word searchable, so I guess I see the point. To do this, you either have to have one of the paid pdf programs, OR after long searching I found this PDF-VIEWER program that provides a free OCR software.  This also allows you to add bookmarks. Just open your compiled pdf  in the program, hit the OCR button, wait till it finishes, add your bookmarks (if any), and hit save.


STEP 4.

You might be already done, but if it is a large document, you could run the risk of being over the size limit. Again, the paid for programs have compression/size reduction features, but if you scanned in your documents they are likely going to take up a large amount of size. So, you need to shrink it. How? There are a couple good, free websites that do it for you. I tried both  small pdf and pdf compress, and pdf compress worked faster (shrink sorta got stuck, although it has solid reviews. Both seem great).  They both take a minute or two then automatically download the compressed document. Save it, and your are finally ready to E-file!


Conspiracy:

E-filing was mandatory in the courts of appeals and federal system for a while, so it was inevitably coming. However, with the mandate came all these new fees, programs, requirements, etc. Someone is getting paid, and I am paying them. My clients are paying additional fees. I understand that it costs money to run the judicial system and retain documents. That is why we pay taxes and filing fees, that all continue to increase. I do not know where these additional fees are going, or why it continues to get more and more expensive to do the simple acts necessary to be a lawyer. Someone maid money on this deal, and I wish I knew who it was.


Conclusion:


I know, all lawyers are rich, quit yer belly-achin', I hear that. I wish it were true, but if this is a big problem then I'm pretty blessed. I am all for new technology, increasing efficiency, and definitely reduction of waste. E-filing should be all those things, but it has not started off without many a hitch. I will continue to educate myself, try new providers, and try to do so efficiently, I just hope the powers that be continue to try and promote a system with the people it affects in mind.


Post Script:

I do not know if those linked programs add malware or additional stuff to your computer. I assume they do, as they are free. I'm sure adobe acrobat is a great program (dear adobe, please send me a copy), I just am fighting it out of spite. I would love any comments or reviews of the other e-filing providers if you have any feedback.