By Jake Pollack
It can be a complicated question. If I tell someone that I am an attorney, I am typically then asked, “What kind?”. When I say that my primary area of practice is Wills, Trusts, and Estates, many people don’t know what that really means, or that it is only a part of what I do. The short answer is that I assist clients in organizing, managing, protecting, and transferring their family assets and wealth, both during life and at death, but I am going to take advantage of this issue’s Spotlight to be more comprehensive and descriptive.
The legal services that I provide can be divided into five categories, as follows:
Wills, Trusts & Estates
Traditional estate planning (Wills, trusts, and diminished capacity documents) accounts for more than half of my practice, and the importance of this planning cannot be understated. Wills allow you to direct who will inherit your estate assets, and how, designate who will manage the administration of your estate assets, and avoid and/or delay estate tax to the maximum extent. Trusts allow you to set aside assets for someone else, such as a spouse, child, grandchild, or charity, but control how the assets will be managed and utilized, and who will do so. Diminished capacity documents primarily allow you to designate the person who would make medical decisions for you and/or manage your financial affairs if you later lose the ability to do that for yourself.
Wealth Preservation & Legacy Planning
Regardless whether an estate has been acquired and increased in value over several generations or is newly-acquired, many clients desire to consolidate family asset management, transfer wealth to children or grandchildren prior to death, and/or undertake some level of asset protection. A family partnership or limited liability company can be utilized for all three purposes, and a domestic asset protection trust (now available in 16 states) or offshore planning in a foreign jurisdiction can be utilized for greater asset protection.
Estate & Trust Litigation
Disposition and/or management of estate or trust assets can give rise to litigation. While it is difficult to set aside or modify the terms of a properly-executed Will or trust, litigation is often used to create leverage for a more beneficial disposition. Litigation may also result from the management of estate or trust assets, or the medical care of, or financial management for, an incapacitated person. Guardianships are also the result of, and are subject to, formal judicial proceedings.
Probate & Estate Administration
The majority of estates are subject to some form of probate administration. Texas law provides for independent probate administration, which allows the executor to administer the estate without court supervision, but only if elected in a properly executed Will or unanimously agreed among the estate beneficiaries. Even with independent probate administration, the rights, duties, and obligations of the executor and the beneficiaries remain subject to the statutory prov-sions of the Texas Estates Code. Texas law also allows for probate alternatives that can simplify estate administration or which concern estates of minimal value. “Ancillary probate administration” may also be necessary if the bulk of an estate is probated in one county or state but other assets (typically real estate) are located elsewhere.
Business Entity Formation, Administration & Transactions
Many clients have formed or acquired business or investment entity ownership interests, desire to do so, or would benefit from doing so. In those instances, it is important to determine what type of entity or entities will be the most beneficial, and to form, organize, and operate the entity or entities properly. Mergers and acquisitions of new businesses or ownership interests often require review and negotiation of business plans, placement memoranda, and new or existing ownership and operating agreements. Ownership agreements (such as “buy-sell” agreements) can help provide seamless transitions if a business owner dies or becomes incapacitated and is consequently unable to manage or otherwise partic-ipate in a business, regardless whether that business is family-owned in whole or part. Lastly, businesses in which clients are owners or operators may be liquidated or dissolved for various reasons, both of which can involve the identification and resolution of legal and tax issues. Whether you are curious about or in need of one or more of the foregoing categories of legal services, please don’t hesitate to contact me.