Ashley Flotte’s Legal Blog

                Texas probate law provides that, when a decedent passes away, a certain amount of personal property (such as furniture, clothing, jewelry, vehicles, and so on) should be set aside for the benefit of the decedent’s surviving spouse. This “set-aside” (along with our homestead law) is a very beneficial aspect of Texas probate, in that this certain amount of personal property will be exempt from most creditor’s claims and forced sale.

                The Texas Property Code outlines the specific parameters regarding what property may be set aside. The exempt property may include: home furnishings; provisions for consumption; farming and ranching equipment; tools and vehicles used in a trade or profession; clothing; jewelry; two firearms; athletic and sporting equipment; a motor vehicle for each member of the family with a driver’s license; two horses, mules or donkeys and a saddle, blanket and bridle for each; 12 head of cattle; 60 head of other livestock; 120 fowl; and household pets. The aggregate value of the property cannot exceed $60,000 for a family, or $30,000 for a single adult.

                These items will be designated and set apart by an order of the probate court after the inventory, appraisement and list of claims is filed. The action for the set-aside may be brought by the court itself, or by the individual who is claiming the exemption. For the surviving spouse or unmarried child of the deceased living in the family home to initiate the set-aside, the process will involve filing an application with the probate court along with a sworn affidavit listing all property that the applicant is claiming as exempt.

                Although the set-aside will be protected from most creditors, it is important to note that it will not be exempt from all claims. For example, the property may be reached for the payment of Class 1 claims of the decedent, for the payment of debts secured by liens against the property, or for the payment of federal tax liens.

Certain provisions apply to the set-aside depending on whether the decedent’s estate is solvent, and depending on whether all children of the decedent were born to both the decedent and the surviving spouse (i.e., whether step-children are involved). There also exists the possibility of obtaining what is called an ‘allowance in lieu of exempt property’ if the circumstances permit. If you have questions about the exempt personal property set-aside, the set-aside of the homestead, or other aspects of Texas probate, we invite you to call the Houston Probate attorneys at Smith & Garg.

Despite my age, and despite my lack of children of my own, I watch the Charlie Brown holiday specials every year. The Great Pumpkin… A Charlie Brown Thanksgiving… A Charlie Brown Christmas. The Christmas special aired last night on ABC, and true to form, I couldn’t miss it.

Poor Charlie Brown’s frustration with the commercialization of Christmas seemed more relevant this year than ever. I think in a way he’d be happy to see what are anticipated to be nationwide cutbacks in gifts and frivolity, even if they are a result of our current economic crisis instead of the product of a spiritual awakening. Less spending power this holiday season may be a cause of great anxiety for parents unable to check off items on their children’s wish lists, but fewer or more modest gift exchanges may turn out to be a blessing in disguise. A disheartening, but appropriate, “time-out.” An opportunity to really appreciate the holiday, and as cliché as it sounds, to recognize what “really matters.”

It’s been a tough year for the country, and a grueling past four months as our economic bottom dropped out. As with any unfortunate situation, many who aren’t directly affected by the downturn see the issue as grave, but as something that is happening to “other people.” Even if your 401k has taken a beating, if you get to keep your job, if you aren’t facing foreclosure, if you can pay your bills and buy groceries, you may not feel as connected with your evening news broadcast. For those sticking it out just fine, take a big, big moment to be grateful.

The rising unemployment rate crept its way into my own family this week, and I can appreciate the sense of loss and utter frustration in the inability to “fix” the situation. And while it’s appropriate to mourn, it’s vital to pick up and keep going, and keep confidence that brighter days are ahead. Even if there currently aren’t hard facts to back up that hope, you have to put faith in the fact that they will, eventually, exist. I’m a huge proponent of keeping things in perspective:  as hard as it is to do, it’s so necessary to keep your eyes turned on what you have rather than what you don’t. It doesn’t make mass layoffs one bit easier, but at least perspective might offer a silver lining.

Charlie Brown has the right idea. Maybe we all need Linus to recite the meaning of Christmas, or we all need a little dose of economic crisis, to make us really appreciate what matters. Cynical or not, hurting financially or not, religious or not, there’s plenty to celebrate and be thankful for. Even though the volatility may not be over, 2008 almost is; we have a new year, and hopefully a little bit of a new outlook, to look forward to.

                This is a very common question, and one that is very important to address. Why hire an attorney to prepare your Will when legal software, internet downloads, and office supply store forms abound? Easy fixes and DIYs offer to fulfill your estate planning needs for a low, low price in the comfort of your own home. But are there drawbacks to these methods?

                I answer that with a resounding “YES.” And not just for the sake of my livelihood.

                First, let me point out one common method of creating a legally sound, self-written Will. A “Holographic Will” is a Will that has been drafted, signed and dated entirely in the testator’s own handwriting. As long as certain statutory requirements are met, such Wills can in fact be admitted to probate. The key, however, is that a Holographic Will be wholly handwritten—no portion of the Will may be typed. Common pitfalls to self-written Wills, however, include handwritten provisions being mixed with typed provisions, clauses being scratched out or overwritten, or portions being illegible. In a do-it-yourself Will, much room is left for error and statutory violations. Holographic Wills are often used in situations of grave health or significant danger, when an attorney-prepared Will is either pending or simply not feasible. If the circumstances allow for time and availability of consulting with an attorney, it is strongly suggested that you have a clear, properly-drafted, and properly-executed Will drafted by a qualified Estate Planning professional.

                Some people do choose to create their own typewritten Wills with the aid of pre-printed office supply-store forms or documents downloaded from the internet. These pre-created Will forms are usually very general in nature, and do not consider the unique requirements and circumstances of the testator. Therefore, persons using such forms very often do not account for and coordinate all assets, do not take into account advantageous planning strategies, do not provide for ultimate wealth transfer tax savings, and do not tailor the provisions to the circumstances of their particular estate. Further, just as with a Holographic Will, much room is left for scratch-outs, handwritten additions, or other changes—which could give rise to possible challenges to the validity of the Will when the time for probate rolls around. For instance, if changes are made to the self-created Will by the testator without the statutory formalities being observed, this could spawn a claim of fraud or forgery. Potential heirs or contesters could allege that a self-made addition or change was made by a fraudulent third-party and should therefore be stricken. It is often difficult to prove who, exactly, made the changes or why.

Again, as long as the self-written or self-created Will complies with Texas law, it can be found as valid, but significant room is left for error and future challenges in the probate court. At a minimum, we highly suggest that you have a self-created Will thoroughly reviewed by the qualified Wills & Trusts attorneys at Smith & Garg to ensure that it meets the requirements of Texas probate law. To fully protect your wishes, however, we strongly urge you to create your Will in conjunction with the experienced Houston Wills & Trusts attorneys at Smith & Garg.

I’ve been hearing a lot lately about the Twilight book series, which has apparently spawned a new film that opened last weekend. It seems that Twilight is all the rage among the kids these days. Have we gone from Harry Potter to vampires? I’m not sure I like that.

                I honestly don’t know anything about the movie, or the books for that matter. But I have overheard the stars plugging the film on various early-morning news programs, and one particular interview caught my attention. Robert Pattison, one of the film’s actors, mentioned that he starred in a movie called Little Ashes that will be selectively released in 2009. In it, he portrays a young Salvador Dalí. How fabulous! The film explores Dalí’s early years, including his experimentation with cubism and his covert relationship with famous poet Federico García Lorca. How scandalous! I hope it comes to the Houston area; I’d love to check it out.

                I think my love for Spanish and Latin American art is a direct product of it being shoved down my throat by my high school and undergraduate Spanish studies. Although I have a huge appreciation for art in general, being forced to study the works of Picasso, Miró, Dalí, Velázquez, Rivera, Goya, Botero, El Greco, etc. in particular really made me grasp their genius. I had the opportunity to study abroad in Spain in 2002, and while obviously I couldn’t wait to get to the ‘discotecas,’ I also couldn’t wait to get to the Prado, the Reina Sofia, and the Picasso Museum. I remember seeing Galatea de las Esferas and Imperial Monument to Woman-Child at the Reina Sofia and thinking that Dalí’s mind and talent were on a level that I couldn’t even comprehend.

                He apparently was also quite an eccentric fellow. I’ve heard everything from his delivering a lecture dressed in scuba gear to his bringing a leather rhinoceros with him on The Tonight Show and refusing to sit on anything else. I wonder what we’ll learn about his days as a youngster in the movie. It might not be as popular, though, as Twilight… crazy surrealist artist vs. teenage heartthrob vampires…

Things to rejoice:

·         The attorneys at Smith & Garg are here to help you in all your Wills, Trusts & Estate Planning, Probate, Family Law, Immigration, Business Law, Litigation, Credit, and Employment Law needs.

·         It’s a short week. T minus three days until turkey, dressing and cranberry sauce.

·         A Charlie Brown Thanksgiving comes on ABC tomorrow night.

·         24 fans got a long-awaited taste of Jack Bauer last night.

·         Usher is performing at the House of Blues tonight.

·         T minus four days until the Christmas tree can come out.

·         Black Friday sales.

·         I heard a rumor that the new album Alone II: The Home Recordings of Rivers Cuomo is being released today, instead of tomorrow.

·         I have just confirmed the rumor that Alone II is in fact being released today. Therefore, it’s time to head out for the evening. Please call me on my cell with your Wills, Trusts & Estate Planning and Probate needs.