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Bankruptcy
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Estate Planning & Probate

BANKRUPTCY

What is Bankruptcy?

Bankruptcy is a judicial proceeding under federal laws and rules that govern the relative rights and responsibilities between a debtor and creditors. A federal bankruptcy judge presides over every bankruptcy case and applies the bankruptcy laws to the facts in the case. Our Bankruptcy Practice consists of the representing creditors in federal bankruptcy proceedings filed by bankrupt debtors. While federal law provides for the protection of bankrupt debtors, it also provides creditors with rights that can be exercised in bankruptcy court. We advise creditors about their rights and then represent their interests in federal bankruptcy courts and proceedings.

Does a creditor just have to “give up” the monies owed if the debtor files bankruptcy?

No. There are different types of bankruptcies, and different rights and remedies given to creditors in each, depending upon the character of the debt, the security (if any) for the debt, and other factors. A creditor faced with a bankrupt debtor should secure prompt legal advice when a debtor threatens or files bankruptcy.

What collection efforts can I take against a debtor who is in bankruptcy or who threatens bankruptcy?

This answer varies depending upon the type of debt, the type of bankruptcy, and the stage of the bankruptcy proceeding. Typically, collection efforts against someone who has filed bankruptcy have to be conducted under the laws and rules governing bankruptcy proceedings.


LITIGATION

What is Litigation?

Litigation is the resolution of disputes involving the application of law or legal principles.

Are disputes always resolved in court?

No. Resolution of disputes can occur by several means, from just talking, to mediation, arbitration, administrative proceedings before governmental agencies, and court proceedings in the numerous state and federal courts. Persons with legal issues should consult with a lawyer about the available procedures and the best forum and means for resolving their particular dispute.

How can I avoid going to court?

One of the best ways to reduce your risk of going to court is to have careful legal planning and analysis of activities and relationships. A good lawyer should advise a client on how to avoid disputes and plan their activities and relationships to maximize their position in advance of a dispute.


REAL ESTATE

What is Real Estate Law?

Real Estate Law is the substantive area of the law that deals with rights, interests, and liabilities associated with land and the structures, minerals, and products of land. It can include landlord/tenant relationships, sales and conveyances, mineral interest transactions, development, and security interests in land.

What is title insurance and do I need it?

Title insurance is insurance that is intended to protect a buyer or lender (or seller in some cases), with certain limitations, in the event there is a defect in the title conveyed. Lenders usually require title insurance when land is pledged to secure a loan. Depending upon the specific situation, title insurance may or may not be advisable or available. A lawyer can help a client analyze the appropriateness of title insurance in a specific situation.

What is the difference between a Quitclaim Deed, a Deed Without Warranty, and a Warranty Deed?

These different types of deeds describe the quality of assurance given by the seller to the buyer and indicate the seller’s strength of title. A quitclaim deed only transfers whatever interest the seller has. A deed without warranty conveys the property, but does not warrant that the seller has title. Warranty deeds contain warranties by the seller that the seller has legal title. Different types of warranty deeds are used in today’s real estate transactions.


ENTITY

What Is Entity Law?

Entity Law involves the creation, formation, and management of “entities” such as partnerships, corporations, professional associations, limited liability companies, and the various other legally recognized associations that persons and entities can utilize. The area of practice also includes the evaluation and enforcement of third parties.

What is the best kind of entity to form for my business?

The answer depends upon a number of factors: the client’s business goals, tax implications, the type of business, the need to minimize personal liability, borrowing capability, and legal restrictions. Careful planning with a lawyer and tax advisor should be part of deciding what kind of entity is appropriate.

What kind of legal advice do I need after I set up an entity?

An entity is a legally recognized “person” in the law, and like a person, it needs care and “check-ups.” Generally, regular reports must be filed (including different types of tax returns) with state and/or federal agencies, meetings must be held among the owners and/or managers, and approvals of certain transactions must be secured from the entity. The “maintenance” of an entity should be discussed at the time of its creation and should be one of the factors in determining the type of entity to establish. A lawyer can assist an entity's managers and owners procedures or actions to keep the entity operating legally.

ESTATE PLANNING & PROBATE

What is Estate Planning? 

Generally, Estate Planning is helping individuals (and sometimes business entities) plan for management and ownership of assets following the death or incapacity of an individual.  For lifetime issues, estate planning includes preparation of the proper forms for appointing persons to handle an individual’s business and medical affairs if the individual is incapacitated or unable to handle some or all of his business and medical affairs for himself.  With the complexity of today’s world, without these basic documents, many families could be in for an expensive and difficult process to take care of an incapacitated individual.

Prior to the death of a person, Estate Planning encompasses providing for the passing of the decedent’s assets, providing for guardians of minor children, reducing estate taxes, protecting the decedent’s assets from creditors or perhaps persons who are not prepared to take control of those assets but whom the decedent still wishes to receive the benefit of those assets.  Estate Planning can also include providing for the disposition of a person’s remains.

In short, Estate Planning is the way for individuals to provide, in advance of their death or incapacity, for what happens to themselves and to their property and dependents upon their death or incapacity, rather than leaving those decisions in the hands of the government.  Not having an estate plan can result in your property passing the way the state law requires, rather than as the person wishes.  This can result in undesired results, such as minor children owning, in common with the surviving spouse, assets of the decedent.  Since minor children cannot sign legal documents or act on their own, this often requires expensive and tedious processes to handle what should be routine matters had a proper estate plan been prepared.

Different persons have a need for different estate plans, and the needs change during various stages of a person’s life, such as marriage, having children, the children coming of age, retirement, diagnosed illness, death of a spouse, divorce, and so on.  Estate Plans should be updated periodically, but usually those intervals are fairly long and occur at significant life events.

What is Probate? 

Probate is the process of either carrying out the wishes of a deceased person, or following the state mandated rules for taking care of the affairs and responsibilities of a deceased person.  Having a proper will not only accomplishes the person making the will’s wishes upon his or her death, but also makes the process much easier and less expensive for his or her heirs.

Is Probate Difficult or Expensive? 

It can be, but Texas is an enlightened state as far as its probate procedures go, and a properly drafted and planned will can make the process relatively easy, fast, and inexpensive. 

Is a Living Trust a Good Idea? 

That depends upon the circumstances.  Many advisors suggest a living trust as a means to avoid probate, but that rarely is the result.  Living trusts have a useful purpose in certain areas, such as helping to administer certain assets.  A Living Trust should not be entered into without consulting a qualified professional and considering the cost and all the implications.

Is Estate Planning Only For the Rich?

Absolutely not.  In fact, those with more modest and middle class estates may need estate planning more than the rich, since funds are limited, expensive fixes for lack of planning are not economically feasible, and advance planning will make the transition for heirs much less stressful and less of an economic burden.


THE FIRM

How do you charge for your services?

There are four general types of fee arrangements for legal service:

  1. The Hourly Rate Fee - In this arrangement, the law firm typically charges for the time its lawyers and paralegal staff spend on a matter multiplied by the hourly rate of each professional working on the case. In addition, the client is usually responsible for any out-of-pocket costs incurred by the law firm (filing fees, deposition fees, recording fees, etc.). This is the most common fee arrangement.
  2. The Contingent Fee - In a contingent fee relationship, the law firm charges a percentage of the monies collected on the client’s behalf. Unless the client receives something, the lawyer is not paid any fees. Whether the lawyer or the client pays the out-of-pocket expenses varies with each agreement. The contingent fee arrangement is usually used when the client is attempting to recover monies in a litigation matter and does not have the personal resources to pay an hourly rate fee.
  3. The Flat Rate Fee - In a “flat rate” fee arrangement, the lawyer will charge a “fixed” or pre-determined fee for doing the designated work. This is most often used in transactional or repetitious types of matters.
  4. Mixed Fees - Sometimes a lawyer and a client will combine methods of setting fees. For instance, a lower hourly rate combined with a contingent fee will reduce the client’s out-of-pocket monthly fee bills, and give the lawyer a financial interest in the matter.

On what factors can a fee be based?

The Texas Disciplinary Rules of Professional Conduct set standards for lawyers’ fees. Those may be found at www.texasbar.com.

How do I find the right lawyer for my matter?

A client should look for a lawyer or firm with experience in the type of matter the client is facing, who has a personality and attitude compatible with that of the client, and who the client can trust. Law is not a science and involves judgment calls to be made by the lawyer and client together. One of the best ways to choose a lawyer is to obtain referrals from persons you know who have received good legal representation in similar matters and who were happy with the representation and the lawyer. A person who needs legal services should visit with more than one lawyer or firm to determine and compare the different experience levels, costs, and different attitudes and approaches each might take towards the matter and the client. For instance, some firms may delegate certain types of matters to non-lawyer staff (reducing the cost, but reducing the client’s ability to confer with a lawyer familiar with the file at a particular time). A good lawyer will appreciate a good “match” as much as the client and should be willing to listen to the client’s needs and goals, and answer questions the client has, prior to forming an attorney/client relationship.

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