Die with a will and your wishes should be carried out. Die without a will and state law takes over, regardless of what you might have intended.

When you die without a valid will, which is referred to as dying “intestate,” a probate court takes over the handling of your estate. The probate court appoints a person or firm to handle any claims made against the estate, pay off all creditors, and distribute whatever assets remain under the laws of that state.

Types of intestate distribution

There are three common types:

1. Per stirpes
2. Per capita
3. Per capita with representation

Per stirpes (Latin, “by the roots”)

If a decedent’s estate is distributed per stirpes to his children, the estate will be divided by the number of the children he had. If one of the children predeceased the decedent, that child’s share will go to his heirs.

See the example to the right. If Steve is survived by his sons Aaron, Ben, and Chad, under per stirpes, each gets 1/3 of the estate. However, if Aaron predeceases Steve, Ben and Chad will each get 1/3 of the estate, and Aaron’s share will be divided between his sons, Dan and Ed, who each get 1/6 of the estate.

Per Capita (Latin, “by the head”)

If a decedent’s estate is distributed per capita to his children, all the living members of his children will receive an equal share of the decedent’s estate. However, if one of the children predeceases the decedent, then his or her share would pass to the other children of the decedent rather than to his descendants.

See the example to right. If Steve is survived by his sons, under per capita, each son will get 1/3 of Steve’s estate. However, if Aaron predeceases Steve, then Aaron’s share would be split between Ben and Chad, with each receiving a 1/2 share. None of the grandchildren would be entitled to any part of the estate.

Per Capita with Representation

Texas’ laws of intestate succession specify that if all the heirs are of the same degree of relationship to the decedent, meaning they are all children or all grandchildren, then the estate will be distributed per capita.However, if they are not of the same generation, for example, if both children and grandchildren survive, then the younger generation will only be entitled to the that portion of the estate that older generation would have received had they survived.

See the example to right. If Steven is survived by all of his sons, under per capita with representation, each of his children would get 1/3 of the estate. If Aaron predeceases Steve, Ben and Chad will each be entitled to 1/3 of Jack’s estate, and Adam’s share will be divided equally between his children, Dan and Ed. But, if all of Steve’s children predecease him, then each grandchild would be entitled to an identical share of the estate: in this case, 1/5.

Compare that to a strict per stirpes distribution, which would have required that the grandchildren share what their parent would have been entitled to had they survived. So, in our example above, Dan and Ed would share 1/3, Fred would get 1/3 to himself, and Gerry and Harry would share 1/3. As a result, the grandchildren would receive different shares of the estate.

Complicated Family Structures

The examples above deal with a fairly simple nuclear family unit. Sometimes, however, modern families can be complicated.

Last year, the musician known as Prince died with without a will detailing how his estimated $300 million estate would be handled. It would be up to the probate courts of Minnesota to handle this problem.

Dozens of people came forward claiming to be Prince’s son, daughter, or another relative. The probate judge ordered DNA testing. When the DNA did not support their allegations, the judge denied their claims.

There is, however, still a battle as to who will be the final heirs of Prince. The probate judge has ordered that Prince’s full sister and five half-siblings all qualified as heirs. The hold-up is whether two others, a reported niece and grand-niece, also qualify as heirs.

These two claimed relatives are the daughter and grand-daughter of Prince’s late “brother,” Duane J. Nelson, Sr. So what is the problem? It hinges of what “brother” really means. Prince’s father called Duane his son and was listed on his birth certificate, but he was not Duane’s biological father. As a result, Duane’s children do not have a genetic relationship with Prince. In addition, Prince’s father never lived with Duane nor supported him financially, but they called each other father and son. Now there is a battle between the relatives as to who is a legitimate heir of Prince.

With today’s mobile society and extended family relationships, it is easy to see that sometimes the courts have to go against what every one in the family “knows” the decedent wished because the court must follow the law. In addition, in cases with large estates, infighting can be quick, expensive, and ugly. Some relationships never recover.

Better to not die without a will.

I was inspired to write this  post after watching Bruno Mars’ tribute to Prince during the Grammys.

Were you betting on the Super Bowl’s outcome? Unless you placed your bet with a licensed Nevada bookmaker, you have violated a federal statute.

Over 111.3. million people watched the Super Bowl this past Sunday. I’m sure that a large number of those viewers also made some sort of wager on the outcome of the game. But they probably didn’t know that unless they placed their bet with a licensed bookmaker in Nevada, they violated federal law.

Professional and Amateur Sports Protection Act of 1992

The Professional and Amateur Sports Protection Act (PASPA), also known as the Bradley Act, outlawed sports betting nationwide except in licensed sports pools in Nevada, as well as sports lotteries held in Oregon, Delaware, and Montana (all states that had already legalized sports betting in their borders by 1992; today only Nevada supports betting). Under PASPA , however, jai alai (which to me looks a bit like racquetball) and pari-mutuel horse and dog racing are excluded.

Back in the late 1980s and 1990s, commissioners from various sports leagues pushed the U.S. Congress to create a nationwide ban on sports gambling. At the time, many states were considering legalizing sports betting. The commissioners wanted to prevent such betting to protect the integrity of the game and prevent game fixing.

Senator Bill Bradley (D-N.J.), a former professional basket player, strong supported the bill, arguing that sports gambling is a “national problem” causing “moral erosion [that] cannot be limited geographically” and harms that are felt “beyond the borders of those States that sanction it.”

PASPA and betting today

It’s estimated that the illegal sports betting market is upwards of $400 billion,  which eclipses the legal sports wagering market at $4.2 billion a year.  States are understandably unhappy that a federal statute has prevented them from taking advantage of potential taxable revenue.

Some states claim PASPA should be repealed because it is unconstitutional. They argue that the 10th Amendment to the U.S. Constitution reserves to the states all rights not explicitly granted to the federal government, which should include gambling regulation.

Recently, New Jersey has filed lawsuits claiming PASPA is unconstitutional because it allows four states to offer sports betting while disallowing the remaining states, a clear majority. Verdicts in 2013 and 2016 by the U.S. Court of Appeals for the Third Circuit upheld the federal statute, stating PASPA is indeed constitutional.  The 2013 case ended at the appellate court, but it was believed that the latter case would be before the U.S. Supreme Court this session. On January 17, 2017, however, the Court delayed a ruling on whether it would consider at the case, instead inviting the solicitor general to file a brief on behalf of the government.

In October 2016, former NBA Commissioner David Stern called for the repeal of PASPA, reversing his earlier position.

So perhaps you did break the law on Sunday, along with millions of other Americans, but you are in good company. Last year President Obama openly admitted to breaking the law, and President George W. Bush was known for making golf bets.

Recently in Dusseldorf, Germany, a former tenant sued his landlord for a full refund of his security deposit, which had been partially withheld because the marble floor of the apartment’s bathroom had been damaged by uric acid, presumably from the errant urine of an upright person relieving himself.

There has been a long-running debate in Germany over whether men should be encouraged to sit down when urinating. Stehpinklers (men who stand up to pee) have been pitted against Sitzpinklers (men who sit down). German supermarkets have sold millions of devices that attach to toilets and scold Stehpinklers when they lift the seat.

While some men have accommodate this demand, others have vehemently resisted. So vehement was the resistance that academic Klaus Schwerma, a proponent of Sitzpinkeln, wrote an entire critical book entitled Stehpinkeln—Die Letzte Bastion der Maennlichkeit? (Peeing Standing Up—the Last Bastion of Masculinity?).

In above case, a judge ruled in favor of the former tenant, stating that “Anyone who still practices this formerly dominant custom has to expect occasional clashes with their flatmates, particularly female ones. But they don’t have to worry about damage to the marble floor.”

I was surprised by that ruling. I thought that the man, of course, could urinate using any method he wanted but that he should be responsible for any damage resulting from it.

Although I can’t help you with a Stehpinkler/Sitzpinkler  case, if you have a family law or probate case, call my office at 682-234-2006 to schedule your free consultation.

(above photo by yasmapaz & ace_heart/Flickr)

It can be very difficult for a grandparent to get visitation rights to a grandchild. In 2000, the United States Supreme Court held that a parent has a fundamental right to decide who has access to a child. Troxel v. Granville, 530 U.S. 57 (2000). This case established the Troxel “fit parent” presumption.

In Texas, a grandparent must rebut the “fit parent” presumption by proving that the grandchild’s physical health or emotional well-being would be significantly impaired if the grandparent’s possession or access was denied. This is a very high standard; for example, evidence showing that grandchildren displayed anger, began wetting the bed and had nightmares, and suffered from losing contact with their material family members was not sufficient to establish significant impairment under the Texas Family Code. In re Scheller, 325 S.W.3d 640, 643 (Tex. 2010).

To obtain possession, the grandparent must prove all five of the following points:

1. The grandparent must prove that at least one of the grandchild’s biological or adoptive parents has not had that parent’s parental rights terminated
2. If a parent has custody of the grandchild, the grandparent must rebut the “fit parent” presumption as mentioned above. If a non-parent has custody of the grandchild, however, several courts have found that the grandparent does not need to rebut the “fit parent” presumption.
3. The grandparent must prove that the parent intends to completely deny the grandparent from having possession of or access to the grandchild.
4. The grandparent must prove that he or she is the parent of the grandchild’s parent.
5. The grandparent must prove one of the following is true about the grandparent’s son or daughter who is the parent of the grandchild:
   • He or she has been incarcerated for at least 3 months before the petition was filed;
   • He or she has been judicially declared incompetent;
   • He or she is dead; or
   • He or she does not have actual or court-ordered possession or access to the child.

If a grandparent is able to prove all of these points to the court’s satisfaction, the grandparent can be granted the right to have possession of or access to the grandchild.

If you are a grandparent wishing to gain access to your grandchildren, call my office at 682-234-2006 to schedule your free consultation.

I’ve just finished reading Can’t We Talk About Something More Pleasant?, The New York Times graphic books best seller by Roz Chast, a cartoonist for The New Yorker magazine. In her brutally honest memoir, Chast chronicles how she coped with her parents’ old age, from dementia and incontinence to the huge financial and emotional toll.

Bit by bit, from her home in a different state, Chast realized that her 90+ parents are going downhill, and she assumed a more active role in their care. Her mother had fallen several times, and her father was showing signs of dementia.

Chast called in an elder lawyer, someone who, as she says, specializes “in the two things that my parents and I found it most difficult to discuss: DEATH and MONEY.” Her parents needed essential estate planning documents, like a will and an advance directive, a written statement that expresses your wishes about end-of-life care.

As is so often the case, the real bone of contention is the power of attorney, a document that authorizes a trusted family member, friend, or advisor to act as your agent in a variety of financial and legal matters if you become incapacitated. But, with the help of the elder attorney, the appropriate documents were drawn up for her parents.

After the publication of the book, Chast spoke about how important the elder lawyer was in helping her take care of her parents:

“The way they dealt with aging was the way they dealt with everything else: Don’t ask for trouble. I think they felt that by talking about anything in the future, they’d invite it in. If you don’t talk about it, it won’t happen.

“They were very much afraid of seeing an elder lawyer, which was kind of a turning point and a great thing—and I’m so glad they did it—but they didn’t want to discuss anything.

“I was as much in denial as they were. I didn’t know what those things were. Health care proxy? But if we hadn’t gotten those papers in order, it would have been a lot harder. I started to collect information, like what medications they were on. I did know what a health care proxy was by the time the appointment was over. We got their wills updated. I found out about some bank account they had about $114 in. Things that would have been much, much harder to deal with a few years down the line.”

Too often, adult children who are thrust into the role of caregiver of their parents learn that these vital documents were not drafted. In addition, sometimes advanced dementia makes it impossible to now get those documents because the parents don’t have the necessary mental capacity.

To learn more about my services as an elder lawyer and to see what I can do for you, call my office at 682-234-2006 to schedule your free consultation.