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A will is a written direction controlling the disposition of property at death. It must be signed by the decedent and witnesses. The decedent can name beneficiaries whom the decedent wants to receive the decedent’s probate assets. The decedent can also designate a personal representative (term for an executor) of his or her choosing.If the decedent’s will disposes of all the decedent’s probate assets, and designates a personal representative, the will controls over the default provisions. If the decedent did not have a valid will, or if the will fails in some respect, the identities of the persons who will receive the decedent’s probate assets, and who will be selected as the personal representative of the decedent’s estate, will be provided by Texas Law.

Probate is a court-supervised process for identifying and gathering assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries.

Is probate necessary?
Whether or not a probate proceeding is necessary depends on what assets the decedent owned and how they are titled. Non-probate assets will pass to others automatically, without the need for probate. There are four basic categories of non-probate assets:

Trust property – Assets that are titled in the name of a valid living trust are not assets of the estate and do not need to go through probate.
Beneficiary Designations – Assets with payable-on-death or transfer-on-death designations do not go through probate. Examples include life insurance and retirement or other financial accounts with valid beneficiary designations.
Property Owned Jointly with Right of Survivorship or Tenancy by the Entirety – Property that is jointly owned with rights of survivorship or by tenancy by the entirety passes automatically to the surviving owner at the death of the owner.
Life Estate Deeds – Real estate that passes to a remainder beneficiary under a life estate deed is not a probate asset.
If all of the decedent’s assets are non-probate assets, probate will not be required.

Probate administration applies to probate assets. Probate assets are those assets that the decedent owned in his or her sole name at death, or were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death.
For example:

A bank account or investment account in the sole name of a decedent is a probate asset, but a bank account or investment account owned by the decedent and payable on death or transfer on death to another, or held jointly with rights of survivorship with another, is not a probate asset.
A life insurance policy, annuity contract or individual retirement account that is payable to a specific beneficiary is not a probate asset, but a life insurance policy, annuity contract or IRA account payable to the decedent’s estate is a probate asset.
Real estate titled in the name of the decedent, or in the names of the decedent and another person as tenants in common is a probate asset (unless it is homestead property), but real estate titled in the name of one or more other persons as joint tenants with right of survivorship is not a probate asset.
Property owned by husband and wife as tenants by the entirety is not a probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.
Probate assets include real estate owned by the decedent, bank accounts in the name of the decedent, and life insurance policies that fail to name a beneficiary or are payable to the estate. If the decedent owned any of those, probate will be required.

Do I need a lawyer for probate?
Yes, in almost all cases you will need an estate lawyer for probate. Except for “disposition without administration” (very small estates) and those estates in which the personal representative is the sole beneficiary, law requires the assistance of an attorney. Even when an estate lawyer is not required, formal administration has so many rules and pitfalls that it can be very frustrating for the non-lawyer. Texas’s system is too complex for most Personal Representatives to follow without guidance, and the courts are not set up or staffed to provide probate legal assistance. Additionally, judges require probate documents to meet certain specifications and wording, the forms for which are not available online or even in most libraries. In other words, personal representatives cannot count on the court clerk to assist them and guide them through the process.

Why can’t I just record the will to change the title to my parent’s property?
Title insurance underwriters in Texas generally do not recognize a recorded will as sufficient to transfer title. First, there is no way for those title insurers to know that the recorded will was valid and was the final will of the deceased. Second, there are situations in which the property cannot pass accordingly to the will due to the nature of the property, estate creditors, or other reasons.

Does Texas collect an Estate tax?
At present, no.

Do I need to personally appear to probate an estate?
No, not usually for probate. Unless a dispute requires a hearing, neither the personal representative nor the estate attorney will actually go to court in. There is no “reading of the will” like you see on television. Everything is done by mail, email, telephone and facsimile.

Can an estate be administrated with a missing heir?
In many cases, yes an estate can be administered. A missing heir is one who although not on the record title, has inherited a portion of the title due to the death of the owner, but cannot now be located. Texas law has a useful provision under Formal Probate Administration which allows a personal representative to deposit the share of a missing heir into the registry of the court after the property has been sold.

Do all estates go through full probate?
No. Very small estates without real property may qualify for “disposition without administration” and some estates may qualify for summary administration which is a faster and cheaper form of probate administration. Because homestead definition allows unlimited value (but not unlimited acreage), some estates with very expensive homestead property, but little else, can qualify for summary administration. Also, if the deceased has been dead for more than 2 years, the estate can be handled through summary administration.

For “ordinary” services, a lawyer can collect: 4% of the first 100,000 of the gross value of the probate estate. 3% of the next $100,000. 2% of the next $800,000.

All costs are extra. Additional charges apply for contested matters or extraordinary circumstances. Exempt property, including homestead is not considered as part of the estate value.

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Wen a mother is married and gives birth, the law assumes the child’s father is the mother’s husband. But when the mother is unmarried at the time of the child’s birth, paternity must be established, either voluntarily or through a court order.

If the mother and alleged father agree on who the child’s father is, they can sign a “Voluntary Acknowledgment of Paternity” form. When the parents sign this document, they are acknowledging that the man signing the form is the child’s legal father and swearing under oath that the information is true. The acknowledgement becomes final 60 days after it has been signed. After the 60 days elapses, neither parent can revoke it. If either parent wants to revoke it, he or she must prove in court that there was fraud or extreme force was used to get the parent to sign.

If there is no voluntary acknowledgement, either the mother or the man who believes he is the father may proceed to court to establish paternity. Under law, any of the following persons or agencies can start the court process:

the child’s mother
the man who believes he is the father or who has been identified as the father (also known as the “alleged father”)
the child through a legal representative, or
the Texas Department of Child Support Services.
If a government agency establishes paternity, the agency can only make orders regarding child support. For other orders such as a parenting schedule, the mother or alleged father must go to the court.

Where to start the case

Texas has a system of circuit courts that cover family law cases. Each circuit court covers several counties. The family court judge has the authority to make decisions on paternity cases. The case should be started in the circuit court for the county where either the mother or father resides. The court will order a genetic test for the mother, child and the putative father.

A case can be started before the child’s birth, but the final hearing can’t be held until after the child is born.

Whenever a paternity matter is started in court, the judge may also make orders for:

child support
health insurance for the child
parenting time
decision making authority over the child, and
payment of either party’s attorney’s fees and court costs, such as the cost to start the case in court.
If the judge does not make orders for parenting time or decision making for the child, Texas law assumes that the mother has all of the parenting time and sole decision making authority.

Why Establish Paternity?

If a mother is left to support and raise a child on her own, it stands to reason that a child support order would benefit her and her child. Additionally, the alleged father may have health insurance benefits that are available for the child.

Aside from the benefit of having a father’s involvement, a child may also be entitled to government benefits if the dad is disabled or a veteran. The child would also be entitled to inherit from the father’s estate.

Many men are becoming aware of the importance of a father in a child’s life. If the parents are not on good terms, the alleged father may need court orders for his share of parenting time. The father may want joint decision making authority with the mother. This means that the father and mother have an equal voice in decisions concerning the child’s health care, education and religious upbringing among other major issues. A father cannot obtain theses order without establishing his paternity.

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INTRODUCTION

Buying a home may be the biggest single investment of your lifetime. Your life’s savings may be invested in this one venture.

Thus, it is extremely important that you, the prospective buyer, use the greatest caution in buying a home.

For your protection, consult a lawyer before you sign a purchase contract. The lawyer’s training and experience will help you avoid trouble. Not all lawyers have experience in reviewing real estate contracts, so be sure to ask about the lawyer’s experience.

THE PURCHASE AND SALE AGREEMENT

One of the first documents given to a prospective buyer by a real estate agent/broker is the purchase and sale agreement or contract. Few people realize that this paper is the most important step in purchasing a home — the details of this agreement determine the terms of your purchase. Detrimental provisions in the contract may not be corrected or avoided later in the transaction, so the best time to retain an attorney is before the contract is signed. Before signing, read the agreement carefully. The law usually requires judges to treat you as if you read every word of a document before you signed it, so you should try to read everything carefully before you sign a document. The items you should consider discussing with a lawyer include the following:

Exactly what land, buildings and furnishings are included in your offer? Are the window treatments, fixtures, the stove, outbuildings, refrigerator and the like included? Which items are excluded? It is not always easy to know whether something is being sold with the home. Confirm that the agreement lists the correct property address, legal description and/or parcel identification number that corresponds to that listed on the deed.

What payments are due under the contract?

When can you take possession? If other than the date of closing, is there an Occupancy (pre or post) Agreement? Be sure to clarify whose responsibility it is to insure the property upon taking possession.

Is the seller to furnish you with a good, marketable title? If not, you may be purchasing the property even though other people may have previously asserted claims to all or some of the property, or there may be claims that have been brought by those involved in construction or remodeling of a home.

Which kind of deed should the seller give? Be sure to discuss the difference between a warranty deed and quit claim deed. If you are taking title either as a trustee or as joint tenants with right of survivorship, be sure that you understand your obligations thereunder.

Who selects the escrow agent and who pays for the title insurance for the property in the event the offer is accepted?

Have utilities been installed and paid for? Are the utilities ready to transfer on the day after the closing date?

Should a surveyor be employed to locate the improvements on the property and confirm that there are no encroachments onto or from abutting properties? Who should pay for the cost of the survey? If there are issues that will affect the title, what remedies are listed in the contract?

If a loan is to be obtained from an outside lender, who will pay the loan closing costs? There are usually local customs as to which costs are paid by the buyer or the seller, but it is better to make this explicit in the contract.
Can the buyer cancel the contract and obtain a refund of the deposits if the buyer is denied a loan, and, if so, under what conditions?

If termite damage is found, will the seller have to pay the cost of repairs and treatment? If so, is there a limit?

What are the zoning regulations, or other restrictions, on the use of the property?

What is the time within which the offer to purchase should be accepted or refused? Is the date of such acceptance to be vital to the offer?

If your offer is accepted, what steps should be taken with respect to insuring the improvements to protect you, the prospective buyer, pending the final closing?

Who should be required to sign and accept the offer to make it binding?

Are boundary lines properly specified? If not, will such deviations result in cancellation of the contract?

Are timber, mineral and water rights, if any, properly covered?

Who is responsible for paying property taxes?

What are the remedies if the buyer or seller defaults?

Should the purchase be contingent on any outside matters such as the availability of financing on acceptable terms or the sale of the house that you currently own?

Whose responsibility is it to pay for the real estate broker?

Whose responsibility is it to pay for governmental special assessments that arise before closing? What is payable after closing? What about homeowner or condominium association assessments? Are the appropriate HOA addendums completed? Does the contract allow time for you to review any and all applicable bylaws?

How long should the buyer have to inspect the property?

Does the seller know of any defects? Is there a disclosure form that the lawyer recommends? Has a written disclosure or denial of any defects been completed?
Y
our lawyer may not be able to answer some of these questions until examining many public records, including court and governmental files.

It is important that your purchase agreement be prepared or reviewed by your own lawyer before you sign to ensure the agreement covers your requirements. Remember that even printed form agreements are negotiable, but this requires knowledgeable and independent professional guidance.

THE TITLE TO REAL ESTATE

A real estate title is a right to partial or whole ownership to land and improvements upon the property. If you can prove your title against all the world and the evidence or proof of ownership is contained in proper public records and if it is for whole ownership, it is a marketable title. A marketable title is free from reasonable doubt. When purchasing a home, you should request a “marketable” title. Your lawyer, after proper investigation, can tell you whether the seller is able to convey such a title to you. No one can advise you without a proper investigation.

WARRANTY DEED

A warranty deed is a conveyance of title plus some warranties or guaranties. The usual guaranties or warranties by the seller are: good title, freedom from encumbrance other than as excepted, possession to the buyer and a promise to defend title.

These guaranties alone are not adequate protection, because they are no better than the present and future financial responsibility of the seller. A warranty from a financially responsible seller is comforting and desirable but is not a substitute for a title examination and title insurance. Title defects have a way of lying dormant for years and perplexing a buyer long after the property has been paid for and the seller has disappeared or died.

NECESSITY FOR TITLE EXAMINATION

A title examination is a study of title evidence from the public records, which can be from an abstract of title or computer records. (An abstract of title is a collection of public records relating to the ownership of a parcel of real estate. In many counties, centralized computer records have replaced abstracts.) Your lawyer examines the applicable title information to determine who owns the lands; defects in or claims against the ownership; and any action needed to secure a good record title.

This may seem to be a simple operation. It is not. It requires interpreting numerous deeds, mortgages, wills, court decrees and other instruments; considering the time sequence of transactions and events affecting the title; and applying laws and court decisions to the various situations disclosed in the applicable title information.

The examination of a title requires a thorough knowledge of many areas of law and even when certain laws went into effect or were amended or repealed. An examination of applicable title information may involve evaluating a variety of problems such as the validity of divorces, the effectiveness of foreclosures, the scope of restrictions, the presence of federal and state tax liens, and the effect of old claims against the land.

Whether examining an old U.S. patent or passing on a deed of recent date, the process of examination is, at every step, the consideration of legal problems. Experience can speed up the work, but attorneys almost daily encounter new situations requiring new legal research.

TITLE INSURANCE

Your lawyer can bolster the title examination by issuing or obtaining for you an owner’s policy of title insurance. In such a policy, the title insurance company contracts with the insured person named in the policy to protect the title as insured against financial loss and the cost of defending the title in court.

But like any insurance policy, the coverage is no greater than as stated in the policy. Any policy can list matters substantially affecting title that are exceptions to the coverage and are not insured. Another type of policy, mortgagee’s or lender’s title insurance, protects only the holder of the mortgage and not the owner. You should not forgo owner’s title insurance coverage because your lender has its own loan policy. In fact, obtaining both the owner’s and lender’s title policies at the same time is not much more expensive than obtaining a single policy.

Your lawyer representing your interest can advise the extent of protection given by your owner’s policy. Even if your attorney does not issue your title policy (as is the practice in certain counties and often when purchasing new residences from developers), your attorney can advise you whether the exceptions from coverage listed in the title insurance commitment will be appropriate under the contract or detrimental to you when they are included in the final title policy. Some attorneys include the policy’s cost in an overall charge for all legal services. Other attorneys separate the charge, with the cost for the policy being based on the real estate purchase price. This price is the maximum amount for which you are insured. There is only a one-time charge for an owner’s policy, and its protection continues long after you sell the property, so you should hold onto the policy indefinitely.

JOINT OWNERSHIP

Buyers often have the title to a home placed in a joint ownership arrangement with special words inserted so that title passes automatically to the survivor when one of the joint owners dies. This arrangement is known as “joint tenancy.” In Texas, when land is owned jointly by husband and wife, it is known as community property. Owning property in this manner may be a good idea for some, but, again, it may not be good for you. You should determine the income, gift and death tax consequences before having your home placed in joint ownership. Your attorney can advise you regarding this important decision.

Joint ownership occasionally leads to lawsuits over a right of occupancy, the right to the rents if not occupied by all the joint owners, and the duties of the various owners as to payment of mortgages, taxes, and cost of repairs and upkeep. If the joint owners are parent and child, or brothers and sisters, the subsequent marriage of one of them may lead to conflicts and complications.

IS THE BUILDING UNDER CONSTRUCTION?

If the home you are buying is still under construction or has been completed recently, special care is required to make sure that all building costs have been paid by the sellers and that you are fully protected as to the provisions of the TExas Construction Lien Law. You should consult your lawyer for full information as to your rights and responsibilities under this law.

This also may apply when repairs on a house have been made recently or building material was recently delivered.

Failure to protect against construction liens can result in the property’s being subject to liens even though the full contract price was paid. Be sure that the county or municipality has issued a Certificate of Occupancy to ensure that the home has met all statutory requirements.

FINANCING YOUR HOME

Many financing arrangements are available to today’s home buyers: variable rate mortgages, conventional mortgages, government-insured VA and FHA loans, as well as specialized mortgages designed for specific financial institutions. Your attorney can help you determine the most advantageous plan, based on your needs and capabilities to repay, including certain tax advantages appropriate to your personal financial situation.

Regardless of the type mortgage loan, you should be aware of specific terms the lender may require such as:

Prepayment penalties.
Limitation of your right to sell without lender’s consent.
Maintenance of insurance levels.
Tax and insurance escrow payments.
Limitations on your use of the property.
Lender’s right to change interest rates if you assume an existing mortgage.
Lender’s right to change interest rates during term of the loan.
You also should determine if, in the future, you’ll be allowed to borrow additional money secured by the same mortgage. You’ll want to ask your attorney to explain all costs of the loan, including service charges, appraisal fees, survey costs, escrow fees and lender’s attorneys’ fees.

Remember, when you sign a mortgage note, you are ordinarily responsible for the full payment of the total indebtedness. Even if you later sell to someone who agrees to assume payment of the mortgage, your responsibility continues unless the lender releases you.

CLOSING YOUR PURCHASE

Closing a real estate sale is a technical and complex procedure. The careful drafting of papers to carry out the actual intent of the parties is part of the job. Meeting the technical title requirements is another step. The proper signing and acknowledgement of papers is another. Delivery and recording of the papers are usually the last steps.

As a careful buyer, you should insist that your lawyer be present at the closing, checking each detail to assist you in making your purchase the trouble-free ownership to which you are entitled.

As of Oct. 3, 2015, the law has changed so that, instead of the four documents that had been required to comply with Truth In Lending disclosures, there are now two documents, i.e. Closing Disclosure and Loan Estimate. The change in the law requires that all closing documents be prepared three days in advance of the closing date. If there are any required changes to the forms, a new three-day waiting period kicks in. This is important, as it may delay closing to the disadvantage of the buyer or seller.

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FORMAL ADMINISTRATION
Formal Administration is the most common form of probate in Texas. If an estate does not qualify for Summary Administration, or one of the other probate alternatives, it must be formally administered. Even if formal administration is not strictly required, it may still be the best choice of Probate proceedings.
In formal administration there is close court supervision and the collection and distribution of the decedent’s assets. The process unfolds in three stages: opening the estate, administering the estate and closing the estate.

Can be done with or without a will
Is the most common form of probate and involves the appointment of a Personal Representative(s) and issuance of Letters of Administration
Must be used when the decedent has been dead less than 2 years AND the estate’s assets are greater than $75,000.00, excluding primary residence.
Should be used when the estate owes money to creditors and/or there are special circumstances involving heirs.
Should be used if the estate is involved in a lawsuit

SUMMARY ADMINISTRATION
Summary administration is a shortened form of probate and does not require the appointment of a personal representative. Summary administration usually requires less time, effort and expense than formal administration.

There are two ways for an estate to qualify for summary administration:

The decedent must be dead for more than two years, OR
The value of the entire estate , less the value of exempt property, must not exceed $75,000.00
However, even if the estate meets one or both of these requirements, summary administration is unavailable if the decedent had a last will and testament that specifically directs formal probate.

Can be done with or without a will.
Can be done if the entire estate is worth less than $75,000.00, excluding the primary residence.
Can be done regardless of the size of the estate if the decedent has been dead for at least two years.
Can be done if the will does not include a provision requiring formal administration
Transfers title to property directly into the names of beneficiaries.
Is usually opened and closed much faster than a formal administration.
Assets of the estate are immediately distributed to beneficiaries and creditors upon the entry of the order admitting estate to probate.

ADMISSION OF FOREIGN WILL TO RECORD

Must involve a will that has been probated in another state
Is the most abbreviated form of probate
Can only be used when the estate assets are real property, usually a second home, condo, or vacant lot.
Is commonly used when property is being sold and probate was only done in another state. The seller(s) need the title conveyed to them in the public record in Texas so they can legally transfer the ownership to the buyer(s).
Should NOT be used when the estate owes money to creditors or there are special circumstances involving heirs.
Transfers title to real property directly into the names of the beneficiaries.

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Spinal Cord Injuries | Spine Injury Causes
Each year in the United States, about 200,000 people suffer from spinal cord injuries (SCIs).Most injuries are the result of an accident or a tragedy. Specifically, according to the National Spinal Cord Injury Association, the most common causes of SCIs in the United States are:

Motor vehicle accidents. Automobile and motorcycle accidents are the leading cause of spinal cord injuries, accounting for 48 percent of new spinal cord injuries each year.

Falls. Spinal injuries after age 65 are most often caused by a fall. Overall, falls cause 21 percent of spinal cord injuries.

Acts of violence. As many as 15 percent of spine injuries result from violent encounters, often involving gunshot and knife wounds.

Sports and recreation injuries. Athletic activities, such as impact sports and diving in shallow water, cause about 14 percent of spinal cord and back injuries.

Alcohol. Alcohol use is a factor in two percent of spinal cord injuries.

An analysis of the statistics reveals that violence-related SCIs are increasing while SCIs resulting from motor vehicles accidents are decreasing. The leading cause of violent SCIs is gunshot wounds. Moreover, violence is a more likely cause with younger people, while falls are more common among the elderly. It appears that advancements in technology and design have the ability to make cars safer. Yet, there are no similar efforts underway to make a bullet less lethal or disabling.

If you or a loved one suffers a spinal cord injury, it is important to consult with a spinal injury lawyer as soon as you are able. You deserve fair compensation for your spine injuries, and litigation may be required to make sure you have the resources to obtain an adequate recovery.

The time frame within which you are allowed to file a claim (statute of limitations) begins on the date of the injury and may only last a couple of years. Also, near the date of the injury, it is important to conduct an investigation into the cause of the injury, its nature and extent, and to gather and preserve evidence and witness testimony. Experienced spine injury law firm will know the proper steps that need to be taken to secure your rights.

At our Law Firm, our spine injury attorneys have a wealth of experience in representing people in personal injury, medical malpractice, and wrongful death cases, with particular knowledge, skill and understanding in dealing with spinal cord injuries.

If you are the victim of a spinal cord injury, contact our Law Firm for a free consultation regarding your legal rights. Our spinal cord injury attorneys are knowledgeable in spinal cord injuries and back injuries.

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Elder abuse

“Abuse” means the willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish.
“Neglect” means a failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness.

The facility shall take reasonable measures to prevent patient abuse, patient neglect…

The facility shall employ the types and numbers of qualified staff, professional and non-professional, necessary to provide for the health, safety and proper care of patients.

The facility shall provide licensed nursing personnel consistent with applicable occupational regulations and sufficient to accomplish the following:

(1) patient needs assessment;

(2) patient care planning; and

(3) supervisory functions in accordance with the levels of patient care advertised or offered by the facility.

10A NCAC 13D .2305 QUALITY OF CARE
(a) The facility shall provide necessary care and services in accordance with medical orders, the patient’s comprehensive assessment and on-going plan of care.

(b) Acute changes in the patient’s physical, mental or psychosocial status shall be evaluated and reported to the physician or other persons legally authorized to perform medical acts.

(c) The facility shall not utilize any chemical or physical restraints for the purpose of discipline or convenience, and that are not required to treat the patient’s medical condition. An evaluation shall be done to ensure that the least restrictive means of restraint have been initiated on patients requiring restraints.

(d) The facility shall ensure that all patients who are unable to perform activities of daily living receive the necessary assistance to maintain good grooming, and oral and personal hygiene. The facility shall ensure appropriate measures are taken to restore the patient’s ability to bathe, dress, groom, transfer and ambulate, toilet and eat.

(e) The facility shall ensure measures are taken to prevent the formation of pressure sores and to promote healing of existing pressure sores. The facility shall ensure that patients with limited mobility receive appropriate care to promote comfort and maintain skin integrity.

(f) The facility shall ensure that in dwelling catheters are not used unless the patient’s clinical condition necessitates their use. The facility shall ensure incontinent patients receive appropriate treatment to prevent infections and to regain continence to the degree possible.

(g) The facility shall ensure that patients with limited range of motion, or who are at risk for loss of range of motion, receive treatment services to prevent development of contractures or deformities, and to obtain and maintain their optimal level of functioning.

(h) The facility shall ensure that patients who are unable to feed themselves receive the appropriate assistance, retraining and assistive devices when needed.

(i) The facility shall ensure that enteral feeding tubes are used only when the patient’s condition indicates the use of an enteral feeding tube is unavoidable.

(j) The facility shall ensure that patients fed by enteral feeding tubes receive the proper treatment to avoid aspiration pneumonia, metabolic and gastrointestinal problems, and to restore the patient to the highest practicable level of normal feeding function. The facility shall ensure appropriate care and services are provided to address needs related to hydration and nutrition.

(k) The facility shall ensure that patients requiring special respiratory care receive appropriate services.

(l) The facility shall ensure that patients are assisted to utilize personal visual lenses, hearing aids and dentures.

NCGS ยง 131E-117 Declaration of patient’s rights.
All facilities shall treat their patients in accordance with the provisions of this Part. Every patient shall have the following rights:

(1) To be treated with consideration, respect, and full recognition of personal dignity and individuality;

(2) To receive care, treatment and services which are adequate, appropriate, and in compliance with relevant federal and State statutes and rules;

(3) To receive at the time of admission and during the stay, a written statement of the services provided by the facility, including those required to be offered on an as-needed basis, and of related charges. Charges for services not covered under Medicare or Medicaid shall be specified. Upon receiving this statement, the patient shall sign a written receipt which must be on file in the facility and available for inspection;

(4) To have on file in the patient’s record a written or verbal order of the attending physician containing any information as the attending physician deems appropriate or necessary, together with the proposed schedule of medical treatment. The patient shall give prior informed consent to participation in experimental research. Written evidence of compliance with this subdivision, including signed acknowledgements by the patient, shall be retained by the facility in the patient’s file;

(5) To receive respect and privacy in the patient’s medical care program. Case discussion, consultation, examination, and treatment shall remain confidential and shall be conducted discreetly. Personal and medical records shall be confidential and the written consent of the patient shall be obtained for their release to any individual, other than family members, except as needed in case of the patient’s transfer to another health care institution or as required by law or third party payment contract;

(6) To be free from mental and physical abuse and, except in emergencies, to be free from chemical and physical restraints unless authorized for a specified period of time by a physician according to clear and indicated medical need; and

(7) To receive from the administrator or staff of the facility a reasonable response to all requests.

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Construction defects
The attorneys at our law firm have substantial experience handling construction defect matters throughout Texas. We are committed to providing personal attention and effective legal representation to your unique construction defect issue, whether you are a developer, builder, subcontractor, or homeowner. We handle cases related to all types of construction defect matters including:

Structural defects
Roofing defects
Plumbing issues
Electrical issues
Window failures
Slab or foundation issues
Stucco defects
Developers – Builders – Subcontractors
If a construction defect claim is filed against you, our attorneys are prepared to efficiently resolve it for you. We will evaluate the claim and advise you on your options to settle or go to trial. Often, construction defect matters can be favorably settled through mediation without the potential exposure of trial. Mediation can result in both time and money savings for you. Our construction defect attorneys have represented developers in numerous mediations with favorable outcomes.

You should also be aware that you can tender the defense of the construction defect claim to your insurance carrier. This should be done as soon as possible after a claim has been filed against you. We can help you with this process.

Additionally, our law firm is also knowledgeable in the areas of contract and business disputes and can assist you with these issues, should they arise.

Homeowners
Our construction defect attorneys understand how important a person’s home is to them. Many construction issues including contract disputes and defects can occur during or after completion of your home. If a dispute or defect should occur, homeowners should be aware that there are time limits which may bar them from seeking relief. It is important for homeowners to consult with an attorney regarding these time limits. Our construction defect attorneys can evaluate your unique situation and advise you on this issue. We can also advise you on whether trial or mediation may result in the best outcome for you.

Contact Our Lawyers today for a Free Initial Consultation

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Probate

What happens to a person’s assets when he or she dies? Typically, his or her assets will be distributed through a probate procedure unless there is a surviving spouse and the estate consists entirely of community property. Property held in joint tenancy with another person and property transferred by gift before death or placed in a living trust is also not subject to probate.

Our probate lawyers have extensive experience assisting clients in estate administration. We will review your situation and determine if probate is necessary to distribute your deceased loved one’s assets. If probate is necessary, we will represent your interests, helping to ensure the assets are distributed according to the will, or according to law if a will was not created. Contact our probate law firm today to schedule a consultation with one of our attorneys.

Probate With a Will vs. Probate Without a Will
If probate is necessary and a person dies with a will (testate), the executor of the will opens a probate. The court then decides if the will is valid. If it is determined that the will is valid, the named executor will undertake many tasks such as:

Gathering of assets
Protecting and managing the assets
Valuing the assets
Paying debts and taxes
Distributing the remaining assets to the beneficiaries named in the will
Keeping accurate records for accounting to the court
If a person dies without a will (intestate), a probate may also be opened and the court will appoint an administrator. The administrator will have the same responsibilities as an executor. After all your debts have been paid, your assets will then be distributed to your surviving relatives according to laws of succession. If you have no surviving relatives, your assets may escheat to the state.

The Reality of Probate
The probate process is a time-consuming and often confusing process. Additionally, the decedent’s assets and the distribution of those assets will become public record since probate is a formal court process. A probate typically takes nine to 11 months to be completed. Even in the most routine probates, the law requires a minimum four-month wait after the Notice to Creditors has been issued before any action can be taken to distribute or close the estate. If you have certain individuals who you wish to provide for within a shorter period of time after your death, probate may frustrate your desires and you may wish to create an estate plan during your life to allow probate to be avoided.

Additionally, probate is an expensive procedure with both attorney and executor/administrator fees being set by statute. The fees are:

4 percent of the first $100,000

3 percent of the next $100,000

2 percent of the next $800,000

1 percent of the next $9,000,000

Half of 1 percent of the next $15,000,000

Reasonable fee to be determined by the court for any value in excess of $25,000,000
An estate valued at $500,000, for example, would result in attorney’s fees of $13,000 and executor/administrator fees of $13,000. If you do not want your loved ones to be faced with the expense and time involved with the probate process, it may be avoided through appropriate estate planning before your death.

Alternatives to Probate
Thankfully, there are alternatives to probate for some clients. Under some circumstances, summary proceedings (which are faster and less complex than full probate proceedings) may be available to deal with a deceased person’s assets. Examples of these summary proceedings include:

Petition for Succession to Real Property
If the gross value of the estate is under $100,000, a Petition to Determine Succession to Real Property can be filed. This petition is filed 40 days after the date of death by all persons who succeed to the property (are entitled to inherit) in the county of residence or where the property is located. These types of matters are set for hearing.

Small Estate Affidavit
If the estate consists solely of personal property (for example, a bank account) and the gross value is under $100,000, an Affidavit (or Declaration) for Collection or Transfer of Personal Property under Probate Code §13100 can be used to distribute the estate. This is not a court procedure. It must be at least 40 days since the date of death. This cannot be used to transfer real property (land or buildings). All persons entitled to receive assets must sign the affidavit and the signatures must be notarized. For more information, see Probate Code §13100.

If the estate consists of real property worth $50,000 or less, the assets can be dealt with under an Affidavit re Real Property of Small Value. The affidavit may be filed six months after death in the county of residence. If the decedent was a non-resident of
Texas, the affidavit may be filed in the county where the property is located. This is filed with the court but no court hearing is set.

How Can Our Law Firm Help You?
Our probate attorneys can assist you in determining if a full probate is necessary for your particular situation or if a summary proceeding may be appropriate. If a full probate proceeding is necessary, our attorneys will guide you through the process every step of the way. This includes assisting with filing the petition for probate of will and for letters testamentary, if an executor was named in the will, or letters of administration, if an executor was not named in the will. Our attorneys also assist clients with small estate procedures and summary proceedings when a full probate is not required.

It is important to address your specific circumstances and desires with a qualified attorney to determine what type of probate proceeding is best suited to your situation. To schedule an appointment with one of our probate lawyers, please call our law firm today.

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IF YOU HAVE RECEIVED A LETTER FROM THE IRS OR A REVENUE OFFICER HAS LEFT A CARD ON YOUR DOOR – SHOULD YOU HANDLE IT YOURSELF, OR HIRE AN ATTORNEY?

It is possible for many ordinary situations that arise with the IRS to be handled by the taxpayer and his or her tax preparer. The biggest exceptions to this are: 1) when the IRS makes a demand that the taxpayer disagrees with and/or cannot comply with; 2) IRS criminal investigations, and 3) audit of tax return(s). The reality is that many people do not want to deal with the IRS under any circumstances and often either self-prepared their tax return, do not have a good relationship with their tax preparer, or for whatever reason do not want their tax preparer to be involved for a multitude of different reasons.

If you fall into the category of people who do not want to contact the IRS yourself and want representation please call our office to speak with an experienced tax attorney. We do not charge for consultations.

The benefits of contacting our firm versus any of the other National Organizations that advertise on the radio, internet, television are several. As a small firm we have an advantage over the large organizations because we provide individual attention to our clients and actually do the work we are hired to do. As licensed Attorneys we can discuss options that your CPA or tax preparer cannot such as when bankruptcy is an option, or when the matter goes to Appeals or Tax Court we have years of experience in litigation and fighting for our clients in Court. Lastly, as attorneys the confidentiality and attorney client privilege provides our clients with added protection.

People ask me all the time if they need an Attorney, CPA or EA when dealing with the IRS. My answer is the same as when people ask if they should hire an attorney to represent them in court. Anyone can represent themselves in court. They must know in advance that they are going up against opponents with legal education, training, and have years of courtroom experience. Also, the self-represented individual will be held to the same standard as a professional for presentation of their case in Court. Can a person representing themselves settle a lawsuit? Yes, but probably not as beneficial of a settlement as having an experienced advocate on their side. Can they win at trial? Possibly. But, again why go through the stress and risk to assets, future income and in criminal cases persona liberty.

While a taxpayer can represent themself in dealing with the IRS he or she must understand that IRS employees are well trained and often have years of experience in this area. In almost all instances the IRS employee you speak with will have any tentative agreement approved by a supervisor. There is no such level of assurance with an unrepresented taxpayer that they are receiving an acceptable resolution.

There are taxpayers with a sufficient background and aptitude in negotiation who can educate themselves through reading online and studying the IRS publications and manuals who can obtain a satisfactory result when dealing with some IRS issues. However, most people do not have the time or interest in obtaining the knowledge necessary to adequately handle the issues they are experiencing with the IRS. Anyone who has called the IRS customer service before knows how difficult it can be to get an issue resolved over the telephone. It is not uncommon to be placed on hold for 30-40 minutes and to be handed off from one agent to another. Often times deadlines are provided over the telephone for follow up calls to provide further information. Then another round of calls is needed to get to the next step.

The amount of money that it costs to hire an attorney in most instances is saved in not having to spend the time and effort needed to get a satisfactory resolution of an IRS problem over multiple telephone calls and preparation of required financial forms that the IRS is going to require.

COMMON LETTERS AND NOTICES FROM THE IRS AND WHAT THEY MEAN

For guidance, here are some common letters and notices issued by the IRS and some information either from the IRS website or other observations from experience in representing taxpayers.

CP14
–Request for Payment. Starts the collection process by notifying you that the IRS believes you owe more money with an explanation as to why. When there is an amount due there will be penalties and interest assessed as well.
　
CP90/CP297
–Final notice of intent to levy and opportunity to request a Collection Due Process Hearing (CDP) – This letter gives 30 days to resolve whatever tax issue by paying or entering into an installment agreement; or file for CDP. This notice is commonly seen before levy on Social Security Benefits (or CP 91 – commonly 15% is taken of benefits but can be up to 85%), but also can be used before levy against bank accounts, wages, or property of he taxpayer.

CP161
–Notice of Unpaid Balance or Amount Due

CP501/502
–Request for Payment of Amount due and beginning of series of letters leading to levy and seizure of property. Upon receipt of each letter in this series there is 30 days to respond. Upon the last letter if there is no response or inadequate response there is a final notice before levying begins.

CP503
– Immediate action required. Next in line of letters. A tax amount is assessed and owed. This is the time to contact the IRS with a plan as to how you wish to resolve your tax debt issues.

CP504
– Urgent Notice that the IRS intends to levy and seize assets. Last before the final notice of intent to levy is sent. By this time it is important to be developing a plan as to how you want to address your tax debt issues. There is a telephone number in the upper right hand corner of the letter to call to speak with a representative from the Automated Collection Service (ACS).

CP515
–Request for tax return. If you have not filed, this letter is sent as the first courtesy notice that no return has been processed. This is a good time to contact a tax professional to get started in preparing and filing your return(s).

CP518
–Overdue tax return – Final notice before the statutory notice of deficiency stage of having returns prepared under 6020(b) by the IRS without your input.

CP521
– Installment agreement payment notice that you are in an agreement and have a payment that is due.

CP523
– Notice of Default of Installment Agreement. You have either missed payments, or have incurred further tax assessments by filing a later return without full payment. The IRS needed to be contacted to determine if the installment agreement can be reinstate or modified to address the further assessment.

CP566
– Contact letter re: you have been selected for a correspondence audit. Review where information can be provided to the auditor by fax and mail.

668W and 668A
– These are levies. 668W is a continuing levy on wages. 668A is a one time levy against your financial institution or someone who may owe you money. As soon as you become aware of one of these it is time to call the IRS to see if they will release the levy otherwise the employer or financial institution must honor the levy. Have the fax number of payroll or the legal department of the bank handy; if the IRS is willing to release the levy, time is of the essence. The time to work things out is before the money is sent to the IRS.

Letter 1058
–Final notice of intent to levy and your rights to a hearing. This is the letter that the CP500 series culminates in. This is also a letter that a Revenue Officer from the IRS may send at the same time as requesting documentation or a Financial Statement. There is a 30 day period to either resolve the account or file a Collection Appeal. Collection Appeals are only a good idea for the taxpayer if all tax returns and estimates are up to date or can be brought current quickly. If the Appeals Officer finds that the taxpayer is not in compliance the appeal will be denied.

Letter 1085
–30 day notice before the assessment of a Substitute for Return prepared by the IRS pursuant to 6020(b). Generally you do not want the IRS to prepare a return for you. The IRS-prepared return will rarely as accurate as it would be if all your deductions were taken into account, and a 6020(b) return cannot be discharged ever in a Bankruptcy without being paid in full. In the payroll tax context, the IRS may have to estimate the number of employees that were on payroll based upon projections from prior filed taxes.

Letter 1153

–Proposed Assessment of Trust Fund Penalty Assessment – Pertains to Payroll Taxes unpaid by responsible party of a business. There are 60 days to respond. (Sent along with a Form 2751 to sign if in agreement with the assessment).

CP2000
–Proposed Changes to Tax Return. The IRS believes you have made a mistake on a tax return. Either not including income, or challenging a dependent, or deduction. If you do not agree this is your chance to explain why you were right. If you agree with the proposed change sign off and make arrangements to pay the additional amount owed.

Letter 2205 and 3572
–Initial taxpayer contact letters for a field audit. Unlike the CP2000 and CP566 that are dealt with through the mail or fax, the field audit will take place in person. It can be at an IRS location or at the place of business or the home of the taxpayer. There are usually specific areas that are going to be reviewed such as gross receipts, or items of deductions on a Schedule C.

Letter 3219

– Notice of Deficiency. If you have unfiled taxes and the IRS has proposed an assessment, or if after an audit there is a proposed additional amount of assessment, the Stat Notice gives you 90 days to resolve the matter or file a tax court petition sending the matter to tax court for resolution. Upon filing of the tax court petition, the IRS responds and an Appeals Officer is assigned to either resolve the matter or send forward to trial.

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