(361) 729-7500
Fax: (361) 729-9500
E-mail: calvinwscholz@gmail.com 

Address
1528 South Fuqua, Unit 1
Rockport, Texas 78381

Mailing Address
P.O. Box 1496, Rockport, Texas 78381

Hours
Monday - Friday (except Holidays)
9:00 A.M. - 12:00 P.M.
and 1:00 P.M. - 5:00 P.M.
By Appointment

Evening and Weekend Appointments
Are Available

Frequently Asked Questions

Last Will and Testament, Probates, and Advance Directives

Question: My mother died with a Will. What should I do with the Will? Does it have to be probated and if so, how long can I wait?

Answer: Anyone in possession of a Will for a person who has died has the lawful duty to surrender the Will to the County Clerk of the county in which the Decedent resided at the date of death.  A Will does not have to be probated, however, in many instances this is the only way to effectuate the Decedent's intent as set out in the Will. Ordinarily, a Will must be filed for probate within four years of the date of Decedent's death, however, a Will may be filed after four years if the applicant establishes that the late filing was not due to any negligence or fault on behalf of the applicant.

Question: Is the probate of a Will expensive?

Answer: The probate of a Will is usually not expensive, however, probates of Wills vary considerably from one estate to another as do their probate costs. The filing fee payable to the county clerk is now $300.

Question: Should my mother quit claim deed her house to my sister and I while she is living and avoid the costs of probate?

Answer: The conveyance of the homestead during the lifetime of the parent to the children could raise issues of a gift tax which could be costly to the children.

A quitclaim deed placing title in the children may subject the property to the creditors of the children and be seized for their liabilities and force the parent out of the home during the time she is still living there.

If the parent gifts the house to her children, the tax basis is $ -0- as the children paid nothing for the house and when they later turn to sell the house, they may find that 100% of the sales price is treated as income for the children, either a long term capital gain or ordinary income taxed just as though it was earned through personal services.

Question: Can a "lost will" be probated?

Answer: If the will was last noticed in the possession of the Decedent, it may be presumed destroyed, however, if the will was last noticed not in the possession of the Decedent, it may be presumed lost and subject to probate. Presumptions only enable the presenting party with a satisfaction of what is called the burden of proof, however, presumptions may be overcome with credible and admissible evidence to the contrary.

Question: Does a Will have to be signed before a Notary Public?

Answer: The signature of a Notary Public to a Will may serve only as a witness but cannot serve both as a witness and as the official signature on a certificate attached to the Will. A Will needs no notary public to make it effective, only two signatures of qualified witnesses if typed or printed and none if entirely in the handwriting of the Decedent. An attachment to a Will called a "Self Proving Affidavit" is a statement made under oath and signed by the Decedent and two witnesses which proves part of the Will in advance and raises many presumptions in favor of the Will, and it is usually this affidavit and not the Will that is signed by the Notary Public.

Question: Can I just hand write my Will and avoid the expense of having an attorney prepare my Will?

Answer: There is no substitute for having a qualified experienced attorney prepare your Will, however, until you retain these services you might consider writing out your own will in your own handwriting, but please be informed that hand written wills, even if they express a testamentary intent and are signed by the Decedent, are much more difficult to establish in probate, may require hand writing experts, may require considerably more time and efforts to probate, and may cause the family to have to incur the expense for a performance bond for the personal representative. Handwritten Wills often have other problems not associated with those prepared by a qualified experienced attorney, which may cause delays, problems, increased expenses, and in some cases, the failure of the Will entirely.

Question: My work is the only income in my family. Why should my spouse need a Will?

Answer: If your spouse dies before you without a Will, your spouse is said to have died intestate, and the spouse's property passes to heirs set out in the statutory laws of the State of Texas which are not always to the surviving spouse. In some cases, the heirs at law are children of a former marriage, which may divide your community property estate into two parts, one for the surviving spouse and one for the children of a former marriage.

Question: Will a Will provide for all my testamentary needs?

Answer: A Will may provide for all your testamentary needs, but many other valuable properties are handled outside a Will and are not always part of the Decedent's estate at all. Examples of matters outside the probate of a Will are joint accounts with rights of survivorship, joint accounts with pay on death provisions, and life insurance proceeds. These beneficiaries take pursuant to the document and not under the Will and as such ordinarily have no obligation to use these funds to pay for the probate of a Will and have no legal duty to share these funds with other family members.

Question: Should I place how I want my remains to be treated in my Will?

Answer: While such provisions carry the weight of an advance directive in some cases, they may not arise until after the Will has been probated which may be long after the Decedent's funeral. It is best to take care of cemetery and funeral matters with an advance directive.

Question: If I have a statutory durable power of attorney or a medical power of attorney from my parent, will this be enough to handle all matters for my parent after they become very ill?

Answer: A statutory durable power of attorney will help you assist your parent in most all financial matters. A medical power of attorney will help you to make treatment decisions for your parent that your parent would have made had they been able to voice their intent. If your parent needs help otherwise with where they reside or their treatment, as in the case of long term care, you may find that neither of these powers of attorney will authorize you to make critical care decisions which would then require a legal proceeding to establish you as the guardian of their person. Without an advance directive to declare who would be their guardian, this could become a time consuming and costly experience with testifying medical experts required.

Question: If I sign a Living Will, will I then kept alive against my intentions?

Answer: Avoiding treatment against the patient's will may be the primary purpose of this advance directive. The advance directive for this is called Directive to Physicians or Surrogates and has in its provisions a sentence which authorizes the physician to disconnect all life supports if the physician is of the opinion that death is imminent in a matter of hours even with the availability of life sustaining medical equipment. There is no equivalent law if you have not signed one of these advance directives.

Question: I have been told that when I die, my estate may owe large estate taxes. Is this true?

Answer: Each estate has its own individual issues that would or would not qualify it for credits and/or deductions. As to the size of the estate and the amount of Federal Estate Taxes that may be due by your estate, the federal government laws on this appear to be changing over the last decade and you may begin your search by going on-line to see what these figures are for the current year and the upcoming years. Federal Estate Taxes are often a part of the political scene and change from term to term and sometimes from one congress to the next.

Question: Should I consider placing all of my properties in a trust rather than having a Last Will and Testament prepared and signed so that I will thereby save the money of a probate after I pass away?

Answer: While a trust is the type of document that meets the needs of the client in many instances, it is not always the best way to proceed and is not always the least expensive. Many estates can be probate with a minimum cost and in a relatively short time period. Rather than dictating to your attorney what you expect, ask your attorney for advice in this area. Trusts may restrict your ability to manage your own property and may require a probate of what is called a "pour over Will" and a minimum probate in any case. Trusts may be required where you wish to control the use of property over more than one generation. Trusts do not always save money.

Personal Injuries

Question: Can I just work with the insurance adjuster for the person that caused the accident and save on attorney's fees and expenses?

Answer: No one is required to hire an attorney. In some minor motor vehicle accidents where there is no personal injury and only property damages are concerned, you may consider handling the claim yourself. However, when personal injuries are involved, the insurance company insuring the driver of the motor vehicle that caused the accident begins to work right away with photographs of the accident scene and the motor vehicles involved in the accident before they are destroyed or repaired. They also begin to locate witnesses and obtain their statements. They will probably call you and obtain your statement over the telephone and obtain admissions that may later turn out to be wrong but they may be used against you. Your own insurance company may hire an attorney to represent the insurance company but unless you are being sued because you caused the accident, you may have no attorney representing your interests. In some cases, the property damages and/or the personal injury damages may exceed the limits of your insurance and in that case you may be personally liable for those excess damages. Even though you believe that the driver of the other car caused the accident and even though the driver of the other car received a citation, that does not mean that they will always be held liable as the policeman is not the judge or jury in the case, and in some cases, you may be accused of causing the accident when you were free of negligence. The handling of a motor vehicle accident is best handled by professionals.

Question: When should I call my insurance company after I have been involved in an accident.

Answer: Most insurance policies require a notice from you in a very short time period. If you fail to provide notice of the accident to your insurance carrier, they may decline coverage on the accident under the terms of your policy.

Question: After an accident in which there is some significant damage to my vehicle but I feel like I am not seriously injured, why should I go to an emergency room or see a physician following the accident?

Answer: If you fail to seek medical treatment following an accident and then later notice that you need medical attention, this may be used against you by the driver of the other car. Also, if you seek medical attention several days later or even weeks later when the symptoms of your injuries begin to show up, you may have to prove that those medical providers are treating problems arising out of the motor vehicle accident and not from some other cause that happened after the accident. Some injuries may not be noticed immediately but may appear several days, weeks, or even months after the accident.

Question: The insurance adjuster from the insurance carrier for the other car is offering to settle the accident right after the accident happened and is even offering to write me a check right there at the accident scene or at my house. Should I take the check?

Answer: Once you take a check and cash it, your rights to pursue any further damages for personal injury or for your vehicle have ended. Many problems associated with personal injuries do not surface until days, weeks, or even months after the accident.

Question: I hired an attorney to work on my personal injury case on a contingent fee basis, however, I am not pleased with his work on my case. He rarely ever calls me to update the status of my case and often fails to even return my calls. Should I hire another attorney?

Answer: Your attorney should work with diligence in the prosecution of your case, should keep you informed of his progress, and should return your calls. Discontinuing the services of an attorney after he has expended considerable time and expenses in your case may not always be the best solution, and certainly not until you have more information. If you do not have what is called "good cause" for terminating the services of your attorney, you may find that he will be retaining an interest in your case and if it is settled with another attorney, he may still demand the fractional interest you agreed to pay when he was first retained. Many contracts with attorneys provide information on what is expected if you are having problems with your own attorney. You should consider meeting those contractual requirements before proceeding further.

If you have contacted your attorney and he is still not returning your calls or you feel that your case is in jeopardy because of your own attorney' s actions or inactions, you may wish to contact the State Bar of Texas.

Texas law requires that all attorneys provide their clients with the following notice about the existence of the attorney grievance process. "The State Bar of Texas investigates and prosecutes professional misconduct committed by Texas attorneys. Although not every complaint against or dispute with a lawyer involves professional misconduct, the State Bar's Office of Chief Disciplinary Counsel will provide you with information about how to file a complaint. Please call 1-800-932-1900 toll-free for more information."

REAL ESTATE

Question: Why should I consider retaining an attorney when I sell or purchase real estate?

Answer: In many cases a real estate transaction is the largest single transaction that the person undergoes in his lifetime with not only a relatively large amount of money involved but also with other issues that may be equally important when it comes to realizing what you intended to sell or purchase and either being relatively free of future disputes arising out of the transaction or simply enjoying the purchase of the real estate, for personal reasons or for business reasons.

Question: I have my own real estate broker helping me sell my real estate. Will my real estate broker be able to advice me on the issues of selling my real estate without my having to retain an attorney?

Answer: A real estate broker is not authorized to practice law in the State of Texas unless they are also licensed as such. The practice of law includes but is not limited to giving legal advice or legal opinions and even reaches to the selection of what form of a real estate document may be needed in a given situation.

Question: The Seller is not willing to provide me with a policy of title insurance on the sale of their real estate to me, represents that they own the title free and clear, and that it would be a waste of their money to provide me with insurance on the title. What should I do?

Answer: Often the question of whether or not to obtain title insurance is reduced to who is willing to pay for the expense. There are too many hidden dangers in purchasing property without the help when obtaining title insurance. The title insurance companies in issuing their title insurance policies exam the title to the property and list all exceptions in a commitment for title insurance, which you should read carefully. In some cases, the title insurance company will decline issuing title insurance until some objection is removed or may decline the issuance of a title policy notwithstanding objections being removed.

If the Seller is not willing to pay for the cost of obtaining an Owner's Policy of Title Insurance, you as the Buyer may want to consider requiring the Seller to produce the title insurance but at the cost of the Buyer or you may consider splitting the cost of the title insurance with the Seller. If you find problems after closing a real estate sale and have not covered your purchase with title insurance, you may find relatively expensive legal problems that require litigation and could even lose your claims to the real estate.

Question: The real estate contract I signed is a long document that contains a lot of information. Will my real estate broker help me with all those deadlines and decisions I need to make?

Answer: Most real estate brokers are retained for the purposes described in the listing agreement for Sellers, that is, to help the Seller find a suitable buyer for the property and do not have any legal obligation to supervise the procedures leading up to a closing on the sale of the property, which may remain the obligation of the Seller. Likewise, a standard form real estate contract contains many deadlines for procedural steps leading up to a closing. If those procedural steps are not satisfied, you may find that they are waived by you and that after the deadline, you may have no further recourse if you have failed to act accordingly. You should read every word of the contract and calendar every deadline, both for the Seller and the Buyer, and keep strict records of what is required and act accordingly. If you do not understand those deadlines or those requirements, you should consult an attorney to help you.

Question: I am considering [selling] [buying] an ongoing commercial business. Will my real estate broker be able to guide me through the process, and if I have no real estate broker, can I handle the transaction myself?

Answer: The scope of an ongoing commercial real estate transaction is in most cases beyond the forms made for the use of a real estate broker. An ongoing commercial real estate transaction involves the establishment of the business [good will], constantly changing inventory [types as well as quantities], creditors, employees, confidentiality agreements, non- competition agreements, and negotiations on the same. Selling items in the store and selling all the items in the store to a single buyer are different transactions, one in the usual course of business and the other classified as a "Bulk Sale" which will most often trigger bulk sale laws and creditors. Not all attorneys are experienced in handling ongoing commercial real estate transactions.

Question: Can I save money by going on-line and finding my own documents to prepare and handle the transaction without an attorney?

Answer: Most on-line document suppliers will provide in their papers that they are providing legal forms and not legal advice. You may find that if a problem later develops, the money you have spent on these on-line forms will have cost you much more than you would have spent had you first retained a qualified attorney at law to have assisted you in the transaction.

LITIGATION

Question: When should I consider representing myself rather than retaining an attorney?

Answer: There is no single answer to this frequently asked question. "Litigation" includes not only a lawsuit but some dispute or controversy that is likely to result in a lawsuit. Once one of the parties to a lawsuit has filed a petition or a claim, legal notice must be provided to the other party, whether by posting on the courthouse bulletin board, certified mail, or personal service by someone authorized to deliver the citation. The notice will provide that an "answer" or response to the claim must be filed within a certain time period or else a default may be granted in your absence which may become final and not capable of being appealed.

Question: I am a landlord and have an agent that helps me rent the property. Can I use my agent to represent me in an eviction case?

Answer: An agent may represent a landlord in an eviction case in the justice court even though the agent is not authorized to practice law. Some eviction cases may involve issues that are more difficult to handle as compared with an ordinary failure to pay rent case and in those more difficult cases the landlord should retain competent experienced counsel.

Question: I am involved in a dispute with another individual and the case is in the justice court. Can I use my agent to represent me there?

Answer: Small claims court proceedings in the justice court require representation by either the party himself or a person authorized to practice law in the State of Texas.

Question: I am one of the owners of a business that operates as a Limited Liability Company [LLC] or as a Subchapter S Corporation. If the business becomes involved in litigation, can I represent the business without hiring an attorney?

Answer: An LLC or a Corporation is a separately recognized entity in the State of Texas and as a non-person entity cannot represent itself and therefor the business as such must retain an attorney for its representation. If you fail to act accordingly, you may find a Motion To Strike your pro se answer and then take a default against your company.

Question: I have been sued and accompanying the citation and the complaint is a lot of other papers that look important. What should I do?

Answer: The citation requires an answer in a certain period of time, usually the Monday next after 10 days for justice court proceedings and the Monday next after 20 days for county and district court proceedings. If you fail to answer or respond, a default may be granted against you. Those "other papers" may be discovery documents. Most often, discovery papers follow an Answer. Among the various types of discovery, requests for production of documents, interrogatories (questions), and requests for admission are the most frequently used. A careful reading of any of these discovery tools warns the person who is receiving them that a response is required in a certain period of time. In the case of Requests For Admission, they may be deemed "admitted" if no response if filed in 30 days! If you fail to fully respond and a trial follows, you may be very limited on the witnesses you want to call and even on the manner in which you proceed at trial.

 

Disclaimer:

These frequently asked questions [FAQ] are not an exhaustive set of frequently asked questions, but are a mere sample. The answers are not to be considered as "legal advice" or as the answer to any specific question that an individual may have as that requires consultation with your attorney and in that consultation many other issues may need to be considered before providing advice. Not all questions have an "answer" as the resolution of conflicts, for example, often involves a series of procedures, and depending upon the conflict, may require varying remedies in order to attempt to reach a final resolution.

 


 

Not certified by the Texas Board of Legal Specialization. | This website is designed for general information only. The information included in this site is not, nor is it intended to be, legal advice. This site does not create the formation of a lawyer/client relationship. | The Law Firm of Calvin W. Scholz is responsible for the content of this site for the purposes of compliance with the Texas Bar and the Texas Rules of Disciplinary Procedure.

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