| Read Time: 4 minutes | Estate Planning

What Are the Requirements of a Valid Will in Texas?

A last will and testament is a foundational estate planning document. In a will, you can lay out how you want your assets distributed upon your death. You also name an executor who will oversee your estate. While this concept is straightforward in principle, there are many factors to consider when drafting a will. Most importantly, you need to know whether the document meets Texas will requirements under state law. At Massingill Attorneys & Counselors at Law, we help individuals and families of all net worth levels and backgrounds create effective estate plans. We can help you clarify your wishes, decreasing the likelihood of any unnecessary familial disputes in the future. What Are the Requirements for a Will to Be Valid? On one hand, Texas lawmakers want to encourage people to draft wills because they provide much-needed clarity when settling someone’s estate. However, at the same time, there is often a lot at stake after someone passes on, which can lead to unanticipated drama. Thus, Texas law imposes a few requirements to draft a valid will. Will Capacity Requirements First, the testator (the person creating the will) must have the legal capacity to create a will. This requires that they are at least 18 years old, are married, or are a member of the United States military. Second, the testator must possess the testamentary capacity necessary to execute a valid will. This requires that at the time they draft the will, they command an understanding of: The fact that they are creating a will; The practical and legal effect of creating a will; The property they own; The people who are related to them; and The fact that making a will eventually results in the permanent transfer of assets. Additionally, the testator must have the capacity to make reasonable judgments about the matters contained in the will. Generally, Texas will requirements include the need for the testator’s signature on the document. However, if they are unable to sign the will, the testator can designate someone to sign on their behalf. There is no notary requirement for a Texas will. Will Witness Requirements Most Texas wills must be executed in the presence of two credible witnesses over the age of 14. A credible person is someone who does not stand to benefit from the provisions of the will. Each witness must sign, indicating they witnessed the testator sign the will. The major exception to the witness requirements is for holographic wills. Undue Influence In addition to the above, a testator must be free from undue influence when executing a will. Undue influence is a legal term referring to a situation in which someone successfully influences the testator to include something in their will they didn’t initially want to include. For example, if someone told you that they are happy to take care of you as long as you leave them your house in your will, they may have exercised undue influence over you if that was not your original intention. Are Handwritten Wills Valid in Texas? Yes, holographic wills are valid in Texas, provided they are properly executed. A holographic will is one that is entirely in the testator’s own handwriting, meaning no part of the will can be typed or in anyone else’s handwriting. These are often used on an emergency basis when someone does not have the time or ability to get to a Texas estate planning attorney. There is no witness or notary requirement for a holographic will. While holographic wills do not need to contain the date of execution, it is always a good idea to do so. While holographic wills may seem like the easiest type of will to create, they also frequently give rise to will contests. A will contest is when someone challenges the validity of a will for any reason. Estate planning laws are complex, and when someone writes their own will they may use inaccurate or inconsistent phrasing. This can lead to ambiguity, and ambiguity typically results in will challenges. If someone who was not mentioned in the will believes they should have been included, they may challenge the validity of a handwritten will. And if the language is not airtight, they may succeed in invalidating the will. Limitations of Wills While wills are the cornerstone of any Texas estate plan, they are rarely sufficient on their own. In a will, you can determine how the court will distribute your property after you die, name a guardian for any minor children (or adult children experiencing disabilities), and name an executor to oversee your estate. However, all assets in your will must pass through probate and are subject to federal estate tax. Thus, many families also consider other estate planning tools, such as trusts, which can allow for the more orderly and cost-efficient transfer of assets. Similarly, a will only takes effect after you die. If you suddenly become incapacitated, the person you named as an executor has no legal authority to conduct business on your behalf. This is where a power of attorney comes in. A power of attorney gives you the ability to name another person to handle your financial affairs if you become unable to do so. When thinking about creating a will, it is important to pinpoint what you are trying to accomplish. Often, you’ll find that a will can only get you part of the way to your desired goals. You may need to use other estate planning tools that work in conjunction with the will. A Texas estate planning attorney can help you better understand how each of these pieces fits together. They can work with you to develop an effective estate plan. Schedule a Free Consultation with a Texas Estate Planning Lawyer Today If you do not yet have a will, or it’s been years since you updated your will, reach out to Massingill Attorneys & Counselors at Law. At Massingill Attorneys & Counselors at Law, we have extensive experience working with families, helping them develop...

Continue Reading

| Read Time: 4 minutes | Estate Planning

What Is a Bequest in a Will in Texas?

One of the most important decisions to make when estate planning is deciding who will inherit your assets. Your last will and testament will include these decisions in the form of bequests.   So what does bequest mean in a will? Generally speaking, a bequest is how you instruct who gets what when you die. There are many different kinds of bequests, which we’ll explain in more detail below. What Is a Bequest in a Will in Texas? A bequest in a will is the legal way of gifting someone money or property after your death. Bequests can be made to people, organizations, institutions, trusts, or foundations. However, you cannot “bequeath” property to an animal (although you can instruct that a sum of money be used for an animal’s care). When you bequeath property to a person or entity, they become a beneficiary and obtain certain rights. Types of Bequests There are many kinds of bequests you can make in a will. Bequests can be simple or quite complex, and they differ based on the property you’re gifting and the type of beneficiary.  Specific Bequest As the name insinuates, a specific bequest in a will is a gift of a specific asset to a specific person or entity. The asset can be either property or money. Here are a few examples: “I bequeath my Swarovski crystal rose figurine to my niece, Allison Turner.” “I bequeath the property located at 123 Main Street, Dallas, Texas, to my son Benjamin Smith.” The more details you provide when making a specific bequest, the better. This eliminates confusion and ensures that your intentions are followed. General Bequest A general bequest is a monetary gift to a specific person or entity. Here’s an example of a general bequest in a will: “I bequeath $10,000 to my son, John Smith.” The gift is paid out of the general pool of assets in the estate, not one particular asset, such as a bank account. Demonstrative Bequest Unlike a general bequest, where the source of the gift is irrelevant, a demonstrative bequest is a gift, usually of money, from a particular source. For example, if you want to leave $15,000 from your savings account to your sister, those specifications would be made through a demonstrative bequest. Another example is “100 shares of my Apple stock.”  Percentage Bequest With a percentage bequest, you can proportionally divide your estate among beneficiaries, as opposed to leaving them a dollar amount. Here’s an example of a percentage bequest: “I bequeath 25% of my estate equally among my four children.”  If you’re concerned that the value of your estate will fluctuate or certain assets may not be in your estate when you die, a percentage bequest might be appropriate.  Charitable Bequest Charitable bequests are gifts of property to a qualifying charity, non-profit organization, trust, or foundation. With a charitable bequest, you can satisfy your philanthropic goals and take advantage of the tax benefits. Residuary Bequest After satisfying all the bequests in your will, you may have leftover assets. This is known as your residuary estate. You can choose what happens to this pot of money and property by making a residuary bequest to a specific beneficiary. An example of this is: “I give all the remainder of my estate to the local ASPCA chapter.”  Contingency Bequest A contingent bequest is the transfer of property that’s only made if a certain condition is met. Here’s an example of a contingent bequest: “I hereby bequeath $50,000 to my niece Lucy, but only on the condition she graduates from a four-year university or technical college by the age of 23.” You can also structure a contingent bequest so that it takes effect only if the primary beneficiary dies before you. For example: “If neither my spouse nor any of my descendants survive me, I give the entire proceeds of my brokerage account to the Texas Children’s Hospital.” What Happens to Property Not Bequeathed Under a Will? As mentioned above, you can make a residuary bequest and specify who gets anything remaining in your estate. If you do not specify what happens to your residuary estate, Texas intestate succession law decides for you. Under the laws of intestacy, your leftover assets will go to your closest living relatives. Depending on who’s still alive at your death, the laws become more complex, particularly for blended families.  If you do not bequeath all your assets under your will, there may be unintended consequences. For example, it’s entirely possible for a distant relative to inherit remaining assets if you don’t provide specific instructions otherwise via bequests.  Contact the Estate Planning Attorneys at Massingill Attorneys & Counselors at Law Life is complicated, but estate planning doesn’t have to be. At Massingill Attorneys & Counselors at Law, we simplify and explain legal concepts, so our clients feel confident in their decisions. We take the time to learn every detail about your assets, your family, your wishes, and your dream legacy. When you work with our estate planning attorneys, you’ll receive a personalized, unique, and comprehensive estate plan. Our quality of work speaks for itself and continually earns us five-star ratings on Google.    If you live in any of the greater Austin, Texas areas, contact us to schedule an appointment. Let’s start planning your legacy today.

Continue Reading

| Read Time: 3 minutes | Estate Planning

Six Estate Planning Tips for Small Business Owners

Estate planning for business owners is one of the most important but overlooked parts of setting up a business. Often, folks wait until it’s too late to have conversations about their wishes for their small business after they pass on. When setting up your business, estate planning for small business owners can be an essential component of preparing for long-term success.  Your business is likely one of your greatest assets, and it’s something you should protect with plans and insurance while you’re alive. Don’t let all your hard work go to waste after you’re gone. Talking to a local business estate planning lawyer is the first step in helping protect your greatest asset, your business. At Massingill Attorneys & Counselors at Law, we can help you navigate all aspects of estate planning. To help you prepare, we’ve compiled the six top estate planning tips for small business owners. 1: Draft or Update a Will and Estate Plan A will and an estate plan can be foundational documents for your business. And talking to an estate lawyer is the first step in drafting a solid estate plan for your business. If you die without a will, figuring out how to pass down your company and its assets can become expensive and time-consuming for your heirs. Make sure you avoid this preventable confusion by putting your will and estate plan into place as soon as possible. 2: Communicate Openly About Your Business Succession Plan A business succession plan discusses how you want your business run after you’re gone. Talk about your succession plans with your family and business partners. Succession plans work best when you work with your heirs and partners to put them into place while you’re alive. An experienced Austin, Texas business estate planning lawyer can help you develop your succession plan today. 3: Draft a Buy-Sell Agreement (for Businesses with Multiple Owners) For a business with multiple owners, creating a buy-sell agreement can help ease confusion after one owner dies. A buy-sell agreement allows any of the following to happen upon your death: Your business partners can purchase your interest in the business; Your heirs can inherit your share of the business under your will; Your interest can be sold to a third party; or You can block a third party from purchasing your interest in the business. Make sure you speak to a lawyer and make your desires known. Having a buy-sell agreement in place as part of your estate plan can help open conversations in multiple-owner businesses. It can also ease transitions when one owner exits or dies. 4: Focus on Tax Efficiencies Taxes are one of the biggest concerns for any business owner trying to create an estate plan. One of the key issues in creating a solid plan is reducing the need to sell parts of your business to pay estate tax. Developing your estate plan with an experienced Texas estate planning lawyer can help you understand your potential liabilities. An estate planning lawyer can also help you understand your options for minimizing those liabilities and protecting your business and your heirs. 5: Confirm You Have Enough Insurance Life insurance and liability insurance can be a lifesaver for your heirs. Make sure you have enough of both when you’re doing your estate plan for your small business. You should consider buying enough life insurance so that your heirs or business partners have the liquidity to finalize your business affairs after your death. It’s also a good idea to pay the liability insurance for a certain period beyond your death. This can help your heirs in the event that a customer or client brings a lawsuit after your death.  6: Maintain Proper Records (and Disclose Where They’re Kept!) Any estate lawyer will tell you that an estate plan is only as good as the paper it’s written on. Unfortunately, many people write estate plans and then secure them in places where no one can find them. Don’t let this happen to you. Maintain proper records of your estate planning. Keeping your will and other estate documents with your estate planning lawyer is a great idea. Let your family and business partners (if applicable) know your lawyer’s contact details.  How We Can Help Our law firm serves Texas businesses like yours who want to prepare for the future. Attorney Joshua Massingill and his team have helped many Texas small businesses understand their estate planning options. We have abundant experience in estate planning for businesses. Contact us today to book a consultation to discuss your business’s future. We’re standing by and excited to speak with you.

Continue Reading

| Read Time: < 1 minute | Business Law

ACL Fest May be at Risk of Violating New Law Aimed to Prevent “Vaccine Passports”

The Austin City Limits Festival announced a requirement that attendees have a negative COVID-19 test or proof of vaccination to attend this year’s event. The requirement stems from similar requirements to attend other popular music festivals, including Chicago’s Lollapalooza. The Chicago Public Health Commissioner shared that two weeks after the festival, only 200 COVID-19 cases had been traced back to the event. Of those cases, no one required hospitalization. The commissioner also noted that 90% of attendees were vaccinated against the virus. Following this model, ACL fest plans to require proof of vaccination or a negative COVID-19 test within 72 hours. This requirement is being implemented despite Texas’s law denying state contracts and operating permits to businesses that require proof of vaccination for service. Joshua Massingill provided commentary on the ACL Fest’s decision and the application of the new Texas law in an interview with CBS Austin. It is important to note that this new Texas law is not implemented by one government agency but, rather, is government-wide. Massingill said that means there is no one agency focused on enforcing the mandate. The ACL Fest doesn’t actually obtain any permits from the government for the event. Instead, it hires vendors who in turn receive proper licenses from the state. This could help the ACL Fest avoid confrontation with the new regulations. Massingill also said that the festival’s option to provide proof of a negative COVID-19 test instead of vaccination might be a loophole to the new statute. He said this was a “novel” approach by businesses to avoid the state’s consequences, so he could not anticipate the government’s response. However, given the ACL Fest’s prominence in Texas, Massingill said he anticipated the state would respond in 24 to 48 hours if it planned to object to the requirements.

Continue Reading

| Read Time: 4 minutes | Healthcare Business Law

Medical Office Compliance Plan: A Primer for Healthcare Business Owners

State and federal laws heavily regulate the healthcare industry in the United States. As a result, if you are involved in any level of providing healthcare services in our country, you must always remain aware that there are complex compliance issues you must adhere to. Here is a look at some of the basic regulatory issues you might encounter and how a healthcare law specialist can assist you in addressing them. Specific Issues and Risks Regarding Regulatory Compliance as a Healthcare Business Owner Complying with general contract and business laws and rules when you are a healthcare business owner is not enough. Medical offices deal with numerous other levels of compliance issues specific to their field. For instance, based on your business, you may find that you have to pay particular attention to rules regarding: Medicare billing for services; Facility licensing and certification; Hospital-physician contracting and alignment, and other non standard contract laws; Provider formation, operations, and acquisitions; Managed care compliance; Medical coding compliance plans and intricacies; Compliance with federal and state laws regulating HMOs and insurance companies; and E-health regulations. The examples listed above are just the tip of the iceberg. The number of compliance plans your healthcare business must put in place are extraordinary and often changing. Violations, even unintended, can lead to serious consequences. For instance, a compliance plan for a medical office, should be sure to address the Stark Law. Under provisions of the Stark Law, a doctor may not refer a Medicare or Medicaid patient to an entity in which the provider or an immediate family member has a financial interest for the provision of designated health services. This is one of several important Federal fraud and abuse laws that apply to healthcare businesses. Your office must have a medical compliance plan with checks and balances in place to ensure compliance with this law. Punishments for violating the Stark Law could include: Prosecution before the Department of Justice, Criminal penalties,  Civil fines, and Loss of your medical and business licences. These punishments can doom a healthcare business owner.  How a Lawyer Can Help Your Office With Medical Compliance Healthcare attorneys are trained, experienced, and focused on helping healthcare business owners create compliance plans and address non compliance accusations. Medical offices must be proactive in seeking legal assistance regarding formation of compliance plans and operating in alignment with those plans. It is also essential that your medical office have attorneys ready to defend you regarding non compliance claims. Proactive Legal Support If you are starting or already own a healthcare business, it is best to engage healthcare lawyers. Among other things, they can evaluate your business and provide services surrounding: Drafting and implementing a full compliance plan; Creating medical office contracts for transactions; Addressing medicare provider enrollment compliance; Preparing and negotiating full preferred provider agreements; Constructing physician compensation arrangements; Implementing mergers of medical groups; Purchasing equipment and lease agreements; Producing written policies, procedures, and standards of conduct documents; and Providing training and education on updated medical compliance. You need a law firm with healthcare expertise to address, review, or create a comprehensive medical compliance plan for your healthcare business. Doing so will aid you in avoiding critical issues in the future. Help During Regulatory Compliance Issues Along with providing early and ongoing support, healthcare lawyers can assist with representation and legal advocacy if you face an audit or legal challenge. These may include addressing issues such as: Disputes over department closure and scope of exclusive contracts; Joint venture litigation; Voluntary disclosure of Stark violations and refunding overpayments; Failure to comply with Medicare coding and billing requirements; Inquiries regarding state licensing laws;  Medicare and Medicaid suspension actions;  Dissolution of corporations and partnerships; Accusations of HIPPA compliance failures; Dispute resolution involving a medical code compliance plan; Shareholder (“buy-sell”) partnership and operating agreement choices; and Handling of provider payment disputes. The above list is not all inclusive. A lawyer who works with healthcare entities can provide timely and responsive legal representation for any issue you might face regarding audits, investigations, and alleged violations.  Whether you are part of a sole practice, medical group, hospital, managed care organization, or other healthcare related businesses, you need a medical compliance plan. Once that is in place, you should have ongoing assistance to ensure continued compliance with the ever changing regulations. If you find yourself in need of representation, you want a firm with excellent reviews you can trust to handle your case. But do not wait until you reach that point. Seek out help now to address your medical office compliance plan needs.  Massingill Attorneys & Counselors at Law: Providing the Massingill Difference Massingill Attorneys & Counselors at Law is an Austin, Texas-based law firm focusing on healthcare business law throughout the state. Clients provide the firm with an ongoing top notch rating, and view us as exceptional legal professionals who are also personable and caring. Along with healthcare law, the firm addresses family estate planning and an array of general business and employment law areas.  When you need trusted, experienced legal counsel, look no further. Massingill Attorneys & Counselors at Law offers a flat fee arrangement and quality representation. Reach out to us today online or at 512-410-0343. We are available via video, phone, or in-person consultation. 

Continue Reading

| Read Time: 4 minutes | Estate Planning

FAQ: Medical Power of Attorney in Texas

There may come a time when a person loses the ability to communicate his or her health care decisions. Whether the person loses capacity as a result of an accident, disease, or old age, it can be a difficult time for everyone involved. To ease the emotional stress of these types of situations, Texans should consider completing a medical power of attorney.  What Is a Medical Power of Attorney in Texas? A Texas medical power of attorney (POA) is a legal document that authorizes a person (the agent) to make medical decisions on behalf of someone else (the principal) when they are incapable of doing so. A medical POA in Texas is sometimes referred to as an advance directive. How Do You Create a Texas Medical Power of Attorney? To create a medical power of attorney, Texas law requires that you either sign the document in front of two witnesses or have a notary public acknowledge your signature. Your signature is confirmation that you read and understand the information in the disclosure statement, which is a required part of the medical power of attorney. Texas Health and Human Services (HHS) provides a medical power of attorney form for Texas residents that is modeled off of the Texas medical power of attorney statute. Who Can Witness My Medical Power of Attorney in Texas? Any competent adult may witness a medical power of attorney. However, the following persons cannot be one of the witnesses: Your agent; A person related to you by blood or marriage; A person who could inherit a portion of your estate; A person who has a claim against your estate; Your doctor or one of your doctor’s employee’s; or A health care provider or their employee at a health care facility where you’re a patient. Remember, you also have the option to sign your medical power of attorney in front of a notary public.  Who Can Serve as My Agent? Anyone 18 years or older can serve as your agent, except for the following persons: Your doctor or other heath care provider; An employee of your doctor or health care provider, unless that person is your relative; Your residential care provider; or An employee of your residential care provider, unless that person is your relative. If you designate your spouse as your agent and later divorce, your spouse is no longer the agent.  When selecting an agent, choose someone you trust. Healthcare agents must make medical decisions per your instructions and in accordance with your wishes, which includes your religious and moral beliefs. However, if you do not have instructions on how to handle a certain situation, the agent must make the decision based on what the agent thinks you would want. This is quite a significant amount of responsibility.   What Medical Decisions Can My Agent Make for Me? Your agent can make almost any medical decision you could. However, your agent cannot consent to the following: Committing you to a mental health institution; Convulsive treatment or psychotherapy; An abortion; or Withholding care intended to provide comfort.  Keep in mind that you can limit the agent’s decision-making authority within your medical power of attorney. When Does the Texas Medical Power of Attorney Go into Effect? The Texas medical power of attorney goes into effect immediately once you sign the document and deliver it to your agent. However, the agent can make healthcare-related decisions only once your doctor certifies in writing that you are unable to decide for yourself. Up until that point, you have complete control over your own medical decisions. If you are deemed incompetent but later regain competency, then your agent loses the authority to make health care decisions for you.  Can I Revoke My Medical Power of Attorney? Your medical power of attorney lasts until it is revoked (i.e. canceled), you become competent, or upon a set expiration date. If at the specified termination date you are incompetent, the medical power of attorney remains in effect until you become competent or revoke it.  You can revoke it at any time. To revoke a medical power of attorney in Texas, you can do any of the following: Destroy the document; Sign a new medical power of attorney; Sign a written revocation; or Tell your agent or doctor that you intend to revoke your medical power of attorney.  A written or oral revocation takes effect once your doctor is made aware and records the revocation in your medical file. Is My Texas Medical Power of Attorney Valid in Another State? A medical power of attorney executed in Texas is only valid in a different state if that state allows it. Under Texas law, a medical power of attorney that is validly executed in another state has the same effect in Texas.  What Happens If I Don’t Have a Texas Medical Power of Attorney?  If you are unable to make your own health care decisions and you do not have a medical power of attorney, the following persons (listed in priority) will make decisions for you: Your spouse, Your adult children, Your parents, or Your nearest living relative. These people will have the decision-making power to withhold or withdraw life-sustaining treatment. All medical decisions must be based on what your wishes and desires might be.  Contact Massingill Attorneys & Counselors at Law If you need a Texas medical POA, the estate planning attorneys at Massingill Attorneys & Counselors at Law are here to help. We offer flat fee pricing and a personalized approach that will leave you feeling confident in your estate planning decisions. Our 5-Star Google rating speaks to the success we bring to our clients. Contact us today or give us a call at (512) 410-0343 to schedule your consultation.

Continue Reading

| Read Time: 4 minutes | Estate Planning

Dying Without a Will in Texas: What Young Families Need to Know About Texas Intestacy Statutes

In many cases, this is what happens if you die without a will in Texas: complications and conflicts. Even more disturbing is that the state ends up determining what happens to your estate rather than you. When you have no will in Texas, you provide no definitive legal assurance regarding what your wishes are, and you give your loved ones no legal right to carry out even the wishes they are sure of. Dying intestate in Texas can and should be avoided by all adults, including those who are part of young families. Why You Should Have a Will A will is an essential part of an estate plan. When an estate planning lawyer creates your will, they do so after meeting with you and learning about your family and assets. They create a legally binding document—a will—that speaks for you beyond the grave. In this document, you state how your property and assets will be distributed. It can also address issues of care and support for your minor children.  A will can be very specific. In some cases, you may wish to be sure that you exclude a certain person from receiving anything through your estate. For example, say you have an estranged parent you fear will incorrectly argue that you promised them certain items. Your will can clearly state that you are intentionally leaving them out of the will and that you wish to leave them nothing. In other situations, you may have a partner to whom you are not married. Your lawyer will know that Texas intestate succession laws will exclude them from inheriting your property. As a result, they will make sure that your will, which will supersede dying intestate laws, clearly provides for your beloved partner. For a young family with kids, you and the child’s other parent may find that one of the most important parts of your will is providing for the child’s care if either or both of you pass away. What happens if you die without a will in Texas along with your child’s other parent? You leave with no legally clear statement of whom you wish to raise your children. Dying with no will in Texas leaves your estate without important protections you could have provided by creating a will. The court will deem you as dying intestate in Texas. At that point, the state law, not you, determines what happens with your estate. Regardless of age, health, income, etc. you should have a will. What Are Texas Intestate Laws? Texas intestate succession laws provide a road map of what happens to the estate of someone who dies without a will. The Texas Estate Code, which addresses intestate succession law, states that spouses and children, parents, and siblings inherit, in that order. There are breakdowns regarding percentages for each group, based on which parties are alive when you pass away. An Example of Intestate Succession Laws To provide an understanding of what happens if you die without a will in Texas and how the courts use intestate laws, consider this scenario. A young adult with a partner passes away suddenly and unexpectedly. They leave no will, and their partner is not their legal spouse or domestic partner. They have been with their partner for over 5 years. They were extremely close to their youngest of 3 younger siblings. They had not spoken to or had any relationship with their other two siblings in years, after a falling out. Their parents are no longer alive. The partner and sibling with whom they were very close believe in all sincerity that the deceased would have wanted the two of  them to have their personal belongings and possessions. They further agree that the person would have given a sizable amount of their financial estate to a charity close to their heart. However, because the person died with no will in Texas, this does not happen. Texas intestate succession law provides that the siblings would receive equal measures of the estate. The partner and charity would receive nothing. But the two siblings the person was not speaking with would each receive one-third of the estate. Special Consideration for Young Families Without a Will If you are a young family, what happens if you die without a will in Texas is that you do not protect your family or provide clear intentions of your wishes regarding your belongings. Instead, you put those you love in the unfortunate, costly, and time-consuming process of having to wade through court and bow to Texas intestate succession laws. Yes, these laws provide assistance to some family members. However, Texas intestate succession laws are not enough. For instance, while the Texas estate code which contains intestate circumstances addresses children, it does not fully protect them. Young families with wills often also create trusts, guardianships, and other protections for their families. These additional important protections are not fully covered by intestate laws. Your estate attorney can help you adjust your will as you face any of life’s milestones. They can update your will for changes and desires related to:  Marriage, Committing to a long term domestic partner,  The birth or adoption of a child, Providing care for an elderly parent or disabled sibling, Plans regarding home and property ownership, and Leaving gifts for close friends or charities you grow to deeply care about. Without a will, your wishes may not be carried out once you die. This will be the case even if you made those wishes clear in conversations with those you love. So what happens if you die without a will in Texas? Don’t make your family and loved ones find out. Work with a lawyer now and get a will. One of the most important adult decisions a young family can make is to work with a trusted estate planning law firm to avoid the court applying intestate succession laws to their young family. Massingill Attorneys & Counselors at Law: Austin, Texas Estate Planning Attorneys The attorneys at...

Continue Reading

| Read Time: 4 minutes | Estate Planning

Thinking About Doing Your Own Will?—LegalZoom vs. Hiring a Lawyer

When planning a will, many people assume that filling out a single document or form is enough to divide their property appropriately upon death. Unfortunately, this often results in unforeseen problems, such as beneficiaries contesting the will. At Massingill Attorneys & Counselors at Law, we are dedicated to helping clients protect their legacy and give their family peace of mind.  Is LegalZoom Good for Wills? A LegalZoom Will Review While it may be tempting to use do-it-yourself solutions like LegalZoom to create a will, it often leads to unintended property distribution. To create an effective will, you need to take all possible life outcomes into consideration, including deaths, births, marriages, divorces, adoptions, and more.  Websites like LegalZoom cannot tailor your will to your specific situation and only provide a generic, one-size-fits-all solution. For example, if you create a will with your wife as a beneficiary, what happens if she dies before you? LegalZoom cannot address these scenarios as thoroughly as an experienced estate planning attorney. Is a LegalZoom Will Valid? A LegalZoom will can be valid, but there are many circumstances that can make a will invalid. Without the assistance of an attorney, you are much more likely to make an error that invalidates the will or cause someone to challenge its validity. For a will to be valid, you can’t just fill out a form and put it in a drawer. It’s important to comply with legal formalities required by the state, such as signing the will and having it appropriately witnessed. LegalZoom won’t complete these steps for you. A LegalZoom will is also more likely to be subject to challenge. For example, imagine there are questions about whether the testator was mentally competent to sign. If an attorney prepared the will, they could attest to the testator’s mental capacity. But if the testator’s daughter just printed out the will and had them sign it, questions about mental capacity or undue influence could plague the probate proceedings.   Important Elements of a Will That LegalZoom May Leave Out Even if your Will seems relatively straightforward, there are a few key parts of your document that LegalZoom won’t cover. Here are some of the essential parts LegalZoom might forget to include in your Will. Alternative Executors and Beneficiaries When filling out a will, the testator must choose an executor to carry out their wishes. In most cases, this is a spouse, child, or other close relative. However, if the primary executor dies or rejects their role, the probate court must appoint an administrator for the will. Each state has its own laws designating who may serve as an administrator if the testator doesn’t have an alternative executor. In addition, if a testator doesn’t name an alternative beneficiary in case the primary beneficiary cannot receive a gift, the probate court will distribute the gift according to state law. Witnesses In some states, a will requires the signature of the testator along with signatures from two or more witnesses. This means that the witnesses must be present when the testator signs their will and include the date and location of the signatures. While this may sound like a minor detail, some states will invalidate a will without this information. Conditional Gifts It isn’t uncommon for testators to leave a gift to a beneficiary with a request for them to meet certain criteria. Conditions allow you to control when your beneficiary receives their gift and how your beneficiary uses it. For example, if you want to leave your child a family heirloom, you can give it to them under the condition that they don’t sell it. This is a great way to ensure that your wishes are fulfilled. However, LegalZoom may not provide an option for you to customize your gifts in this way. Guardianship Nominations A guardianship nomination is often overlooked in a will, especially if the testator expects their spouse to take care of their children. However, this section helps identify a legal guardian for a minor child in case both parents die simultaneously. Why You Should Hire an Estate Planning Lawyer One of the major risks with using a service like LegalZoom is that they aren’t a law firm. This means that they cannot legally review your will for legal accuracy, provide advice for filling out your will, or apply the law to your specific situation. As a result, many people who use their service unknowingly create an invalid or incomplete will.  If you want to create a will that minimizes the risk of legal disputes and carries out your wishes to the letter, hiring an estate planning attorney is your best bet. At Massingill Attorneys & Counselors at Law, our attorneys can help address your individual needs by making a comprehensive estate plan that covers every possible scenario. This includes identifying both primary and alternative beneficiaries, assigning legal guardians to a minor child, preparing detailed medical directives, and more. Need Help Planning for the Future? Estate planning isn’t easy to do alone, especially if you have unique circumstances or don’t know where to start. At Massingill Attorneys & Counselors at Law, we know that your will is an important investment in your legacy. Our goal is to tailor your will to your precise wishes and protect your family from potential legal issues. If you are ready to start the estate planning process or have questions about your existing will, call us at (512) 410-0343 to schedule a consultation. We proudly serve clients living in Cedar Park, Austin, and throughout the state of Texas.

Continue Reading

| Read Time: 3 minutes | Business Law

FAQs About Texas Trademark Registration

In the state of Texas, trademark registration helps business owners protect their name, slogan, or logo from use by another entity. While registering for a Texas trademark is much quicker than a federal trademark application, it requires a lot of the same information. The application can be overwhelming for small business owners, especially if they have no experience with intellectual property protections. Here are some of the most frequently asked questions about Texas trademark registration and how a business law attorney can help with the process. What Are the Requirements for Texas Trademark Registration? In Texas, there are two requirements for trademark registration.  First, the mark must currently be in use. This means that you must be actively using the trademark on sold products or service advertisements in Texas before submitting the application. If you register before you start using the mark, the trademark examiner will deny your application without a refund. Second, the mark must be distinct. This means that the words, symbols, names, logos, and devices must be unique. If the mark consists mainly of common descriptions of a product/service or a surname (e.g., “Delicious Ice Cream,” or “Petersen’s”), it cannot be registered. However, a non-distinctive mark may become eligible for a trademark after five consecutive years of exclusive use if it doesn’t conflict with other trademarks registered in the state. Do I Need to Be a Business to Register a Trademark in Texas? You don’t need to be a business to register a Texas trademark. Anyone may apply for a trademark in Texas as long as they own the mark being registered. However, your business designation determines whether the trademark belongs to an individual or an entity. For example, if you are a sole proprietor, you may register the trademark under your name. In contrast, if you are a limited liability company or corporation, you must register the mark under the business name. How Long Do Texas Trademarks Last? In Texas, the registration of a trademark lasts five years from the date of registration. After the initial five years, you may renew the trademark registration for an additional five years within 180 days before the expiration date. To renew your trademark registration, the mark must still be in use in Texas. How to Register a Trademark in Texas Registering a trademark in Texas is relatively simple if you have only one mark. All that’s required is an application with an example of the mark and a class fee. However, if you have multiple marks, you must pay a class fee for each one. 1. Complete an Application Texas trademark registration requires an application which includes your individual or business name, address, and mark information. The application, Form 901, includes ten sections and can be delivered to the Secretary of State by mail, fax, or in person. To review the application, the trademark examiner needs three pieces of proof, also known as specimens, showing that your mark is currently in use. A specimen includes any tags, labels, packaging, web pages, or ads that include the mark. Sections 5-10 of the application deal with the details of your mark. In section five, you must describe the mark as it appears in your provided samples. You can also claim the colors of your mark as a distinctive feature if desired. The rest of the sections identify the goods and services being sold with the mark and whether the trademark is registered with the United States Patent and Trademark Office. 2. Pay the Class Fee In section seven, the application asks you to classify the types of goods or services being sold with the mark you submit. For example, if your mark appears on two separate categories of products, such as alcoholic beverages and meats, you must pay two class fees. The cost per class for Texas trademark registration is $50. Why Was My Trademark Application Rejected? There are a few reasons why the trademark examiner may reject your application. One of the most common reasons for rejection is submitting a mark that isn’t distinctive. According to Section 16.051 of the Texas Business and Commerce Code, a mark isn’t registerable if it is descriptive, deceptively misdescriptive, primarily a surname, or primarily a geographic feature.  Another reason why your application may be rejected is because certain parts of the mark aren’t registerable. This usually includes general words that may be used to describe a product or service. Need Help Registering a Trademark in Texas? At Massingill Attorneys & Counselors at Law, we are dedicated to helping businesses safeguard their intellectual property. Whether you need your trademark filed with the state of Texas or the US Patent and Trademark Office, we can help. If you want to register a trademark in Texas or have questions about your application, call us today at (512) 410-0343 to schedule a free consultation. 

Continue Reading

| Read Time: 3 minutes | Business Law

Texas Trademark Registration Overview

A trademark will protect the brand identity of your business or product against envious competitors by preventing them from using your trademark in commerce. For full trademark rights, you need to register your mark, although you can obtain common law trademark rights by using your mark in commerce before anyone else does. Texas offers a process by which you can register your trademark in the state. Federal registration is also available. Trademark Registration Cost The cost of trademark registration can add up if you select an inexperienced lawyer who charges you by the hour. A more experienced lawyer, ironically, will probably cost you less, because the total number of billable hours will be less. In any case, the cost for trademark registration, whether hourly or flat fee. should not exceed a few hundred dollars unless your application involves a special complication (filing in many classes, for example). Government filing fees are $50 per class for Texas registration and $225-$400 per class for federal registration. It is best not to try to save money by conservatively estimating the number of classes you want your trademark to cover. Such an approach might save you money in the short run, but it is likely to cost you a lot later. Texas Trademark Registration Process  If you want to register your trademark in Texas, rather than nationally, you will need to qualify under Texas rules and follow the Texas procedures. Your trademark must meet the following qualifications before the state of Texas will register it: You must be using it in commerce in Texas; It must be distinct from any other trademark registered in Texas; and It must be distinct from any other trademark registered by the USPTO. The process works like this: Fill out a Trademark or Service Mark Application Form and have notary public notarize it; Gather three items of evidence that you are using your trademark in Texas (photos, advertisements, etc.); Submit the notarized application and evidence to the Texas Secretary of State together with applicable fees; Respond to any requests for clarification or additional information from the Texas state government (you will have 90 days to respond to each such request); and After Texas issues your trademark registration, use the ™ symbol to indicate your trademark registration—do not use the ® symbol unless the US Patent and Trademark Office (USPTO) has granted you federal registration. An approved trademark registration in Texas will get you five years’ worth of protection. If you are still using it in commerce at the end of five years, you can seek a five-year renewal. Keep in mind that if you obtain federal registration, you probably won’t need Texas registration.  Federal Trademark Registration If you successfully register your trademark with the USPTO, you will gain nationwide protection of your trademark rights. The USPTO maintains a regional office in Dallas. Federal registration comes with many benefits, including: It serves as evidence of the ownership, validity, and enforceability of your trademark; It can prevent the registration of similar marks; It can prevent an infringer from pleading “innocent infringement”; You can have US Customs and Border Protection prevent the importation of infringing goods; You gain access to the federal courts and to statutory and treble damages; It helps you register your mark in foreign countries; and Your trademark can become “incontestable” after five years. To obtain a federal trademark registration, you will need to complete the following steps: Perform a trademark search to confirm the uniqueness of your trademark; Complete the federal trademark application, preferably for registration on the USPTO’s Principal Register; File your application together with supporting documents and the applicable fee (you can file online); Respond to all correspondence form the USPTO, especially Office Actions; Wait while the USPRO publishes your trademark in its Official Gazette for 30 days— absent a successful opposition, it will register your trademark and issue you a Notice of Allowance; Within six months after the USPTO issues you a Notice of Allowance, submit a Statement of Use to the USPRO; Continue using your mark in commerce; and Extend your trademark registration during your sixth and tenth years after registration by filing certain paperwork with the USPTO. All these steps are more complicated than they may appear and require the assistance of a trademark lawyer to avoid mistakes. Start the Texas Trademark Registration Process Today Trademark registration in Texas is not always necessary. If you are going to do it at all, however, you need to do it correctly. By contrast, federal trademark registration is almost always a good idea. It may seem complex, but Joshua Massingil, Attorney at Law, PLLC, we excel at making things simple. Keep your eye on the big picture and leave the critical details to us! Call us at 512-601-6794 or contact us online to book a consultation.

Continue Reading