Tuesday, March 16, 2021

Zoom law- Does it work?

Sorta. The new world order has come, and its hit the legal world as well. First, it was "let's get rid of paper."  That is generally a good thing, but I'm covered up in more paper that ever.  I do like not going to the courthouse every time I want to file something, but instead of paying a local college kid the county takes that money for the privilege.  

I guess that's a wash, but a net-positive for efficiency. 

Enter the pandemic, and now we can't be near each other. Technology has helped keep things going, and as some speculate, we may have just hit the new normal. 

The Good-

If you are not fighting anything, why drive an hour away, pay to park, and sit there when your part only takes 5 minutes? For most probate proceedings, scheduling conferences, etc., online hearings are excellent. You don't get yelled at for working while you wait, and you can dress like you're an anchorman, as no-one sees your bottom half (hopefully. We have all seen the horror stories and don't leave your camera or mic on when you go to the bathroom).  

For uncontested matters, I hope the online option is here to stay. 

The Bad-

Anything that's not friendly is borderline impossible online. Exhibits, reviewing documents, objections, reading the room...you just can't do it well. The Courts have tried, but its just not there yet, and obviously we can't have virtual jury trials without going full virtual reality, which we are not ready for either. 

If I'm asking some tough questions, and the bad person on the other side doesn't want to answer them... "sorry, I've got a bad internet connection...I can't see what you're talking about...I can't hear you..." and its just a clown show. 

The courtroom practice of law is a very intimate, personal, experience. You have to be there. And if you're a face on a screen, you're just not there. 


Take away:

For most of the pandemic, I liked Zoom. All trials hit pause, it was a good reset, and you could still get some things done. Now that we are (hopefully) getting back to a more normal world, the lingering effects of online meetings are making things more complicated. Hopefully we can either get back to normal, or technology will catch up and get us closer to the real thing. 

 

Sunday, January 12, 2020

Probate Movie Review: Knives Out

Image result for knives outWarning, LIMITED spoilers. No real plot spoilers.

Maybe I'm late to the game, but I just saw this, so now you get my review.

When I first saw the preview for Knives Out, I thought it was Clue: Part 2.  It was not, but it might as well have been, and they even referenced Clue in the movie. Either way,  a spiritual sequel with James Bond, Captain America, Michael Myer's Mom, Zod/Nelson Van Alden, James Crockett..(and more) was worth a watch.

Anyway, it turned out to be a movie about probate. So here we are.

Well, rather predictably in hindsight, when a rich old man who is a benefactor to his family of leaches dies, the vultures will circle. When things don't go as planned...things get nasty.

What the movie got right:


    Image result for Knives out will reading scene
  1. Ways to Contest a Will: Undue influence, which means someone else overpowered they mind of the person making the will. Lack of capacity, which means they didn't know what they were doing, and there is a legal argument to say they were not in a state to execute complex legal documents, like a will. 
  2. Renouncing inheritance: Yes, you can do that. Normally its just for tax reasons though. 
  3. Slayer Statute: More common in life insurance, but same applies for wills and others if your state has it. You can't kill someone and then benefit from it. I think most folks would agree this is a fair rule. See the text here.
  4. Reading of the Will: They do it in the movie (see picture), but even they say, this really never happens. I wish it would, it would make things more interesting. 

What the movie got wrong:

  1. The Will itself: Shockingly, the old man changes his will! This he could do. However, the quick glimpse in the movie shows a one page letter looking document, without any witnesses. The movie is purportedly in Massachusetts, and Massachusetts requires wills to be witnessed Now, there is an exception, saying that if the will was valid somewhere else where it was written, it can be valid in Massachusetts, but the paper was typed, not handwritten (or holographic), so I'm not sure how it would have been valid anywhere. Kinda sloppy, Rian Johnson. 
  2. The Aftermath of a Will that Disinherits Folks: In reality (and sometimes these make for great cinema), when a completely valid will goes off the rails and leaves the old man's money to someone who isn't the family, lawsuits happen. They usually settle, even if one side has all the good facts. If they don't, its expensive, and lawyers make a decent chunk of the pie. 

Takeaway: 
 Knives out was good. Not 97% on rotten tomatoes good, but definitely worth a watch.  I give it 74%, which is still really good, just not all time good.  They should have called John Grisham, or any probate lawyer, to clean up a few little wrinkles in the facts, but that doesn't mean the broad strokes weren't there. Like drama? Want to have your family feuding after your gone? You can do it on purpose, or you can prevent it. Knives out highlights just that. 


PS: I'm sure someone else somewhere has written about this, seeing as the movie has been out for a while.  I spent a couple minutes on google and only saw a cursory review, so I did my own. 





Tuesday, January 29, 2019

Guardianships, who, why, and a little update

Image result for guardianshipCaller: "I need to get a guardianship"

Me:  "Can you tell me why?"

Caller: "Well, I need to get control of my _____"


Stop right there. That's not a why, because you haven't told me why that person needs a guardianship, why it would be in their best interest, and what else you have done to prevent the necessity of one.

That's ok, we can sort that out.

HARD TRUTH #1: You can't take a guardianship out on someone who has capacity, who doesn't want to consent to it.

Ex: "I have to get help for my (insert family member or friend). They are (insert risky behavior) and I'm worried they are going to end up in jail or worse."

Sadly, there is not a guardianship or other legal procedure to help someone who doesn't want to be helped, not unless they have a diagnosed medical issue or they have broken the law.

Ok, now that is out of the way, who is guardianship for? The Texas Estates Code dictates the rules for guardianships, and they are complex, as a guardianship is a harsh remedy to an underlying problem. Like a  power of attorney, you get to act on behalf of someone, financially or medically. Unlike a power of attorney, it requires a lawsuit, its really expensive, and it can potentially take away the ward's (the person whom the guardianship is taken) rights to make any decisions for themselves.

HARD TRUTH #2: Those who really need a guardianship can't always get one, and those who don't deserve them, sometimes get one. 

Ex: "I have a special needs child who just turned 18, and I need to have guardianship to help them apply for benefits. "

If you wait til after your child turns 18, this can be a pickle. PRO TIP- don't wait. Same example as above, a family member wishes to save another from themselves, but they won't agree. Can't do it.

The classic scenario is you have a pressing medical or business decision that requires a person's authority, but they do not have the capacity to grant that decision. Ok, you need a guardianship, what do you do?

You need a lawyer, a doctor's report, and sufficient information for all the ward's family members. The filing fee is higher than other proceedings, they court MUST appoint a neutral ad litem attorney (Add $1000+ to your costs), and then you have to get everyone served. If all the family and others agree, you can estimate costs at several thousand dollars. If someone fights or contests, triple it, and then some.

Once you have a guardian, there are strict requirements for accountings that must be met and add to the cost.

TAKE AWAY:  A guardianship can be a necessary evil, but they are difficult and expensive. If you need one, plan accordingly. If you don't, be thankful.

Monday, June 18, 2018

We have moved offices

If you've tried to find me, I've moved. Come see me at 717 N. Crockett St., Sherman, TX 75092. New phone is 903.964.0852. Same guy, different building

Wednesday, April 25, 2018

How much does this cost?

I get this question much more regularly now than 5 years ago. Thanks to the internet, we now have access to more information, and if you believe what you read, it SHOULD make things more transparent. Professional services are no different.  

Image result for secretsWhat companies like LegalZoom (often a bane of my existence) have done is the same that companies like CarMax has tried to do for the car industry, or the TDAmeritrades of the finance world: "here are our fees and costs, beat that small business!"

So, how much do things really cost? This transparency is generally good for the consumer, but too much information I believe has made our society overly skeptical about just about every transaction. 

Cut to the chase- I can change my own oil. Probably. But I'd have to buy the equipment, slide under my car (or jack it up and risk getting crushed) get really messy, and then have the spent oil to dispose of properly.  How much does that cost? Likely way more than the dealership or the local shop will charge me, and what the time, energy, and emotional turmoil would add up to. The cost is not just dollars and cents. 

How much does a cavity cost? Or a root canal? Would just brushing and flossing have been cheaper? Yeah, probably. 

The same logic should go into any professional service. Take the most basic thing I do: a Will. 

You CAN do your own at home. If you get it right, its fine. Some really good resources out there to help you, too. 

But if you don't: 

$500 cost for the attorney ad litem to be appointed when you pass, because you had no will. 
~$300 additional time required for filings for your lawyer. 
? Loss of control over where you stuff goes, and who gets it
~$500-$2000 cost savings that having a will provides in options for probate. 

So, what is a will worth? Baseline, $500, in reality much more. Again, the cost is more than upfront dollars. 

The next common question is when to pursue a claim or not. These get a little tougher. 

Caller: "Hello, (lawyer person). My (relative) died, and he had money in the bank. I need to get it." 

Lawyer person: "Ok, how much was in the bank?" 

Caller: "Probably $1000"

Lawyer person: "Did they have a will?"

Caller: "No"

Analysis: We already know that the no will tax is $500. The filing fees for most types of probate are a minimum of $300, with additional required costs of another $200-$300. You're already under water there, and the lawyer person has not even been paid yet. Its a poor result, that could have been fixed with a beneficiary designation. What makes sense at this point? Just walk away. 

The same process goes into any lawsuit. A common one I see is when you have rental property, the tenants move out in the night and steal your kitchen appliances. They owe you $5k in rent and to replace the kitchen will be another $10k. Sue them! Right?!? Maybe not. 

First, you have to find them to sue them. Problem. Next, you're looking at several thousand dollars in filing fees, costs PLUS lawyer time to get a judgment.  All that may be for naught, if they don't own property (which they never do, seeing as they are renters) or have assets you can attach (again, slim). So what is the result? You were stolen from, paid $5k for a judgment that doesn't get you anymore money. Would have rather just done nothing? I think so. 

TAKE AWAY:

In any scenario, more information can be a powerful tool in decision making. When it comes to professional services, lawyers included, you really have to consider more than just money when determining if any course of action makes sense. Is price your main driver? You may lose out on customer service, and be prepared to only have your self to blame if things don't work out.