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STAUBUS & RANDALL COVID-19 RESPONSE

IN RESPONSE TO THE COVID-19 PANDEMIC, STAUBUS & RANDALL HAS POSITIONED ITSELF TO CONTINUE TO VIGOROUSLY REPRESENT OUR CLIENTS WHILE WE NAVIGATE THIS EVOLVING CRISIS.

Staubus & Randall, LLP has taken additional precautions to protect the health and well-being of our clients and our team. We are dedicated and fully equipped to continue to provide aggressive, high-quality legal services to all of our clients during this crisis.
One hundred percent of our attorneys and paralegals are equipped to work remotely, and are fully reachable by our clients in a secure environment. We are still open and our phones are answered by our receptionist from 8:30 a.m. to 5:00 p.m. Monday through Friday.

Below is a list of FAQ’s while the Dallas County Shelter-In Place Order is in effect.

Question: Can I consult with my lawyer regarding my case?

Yes. Staubus & Randall attorneys are equipped to work remotely with full access. They are available by video conference or by teleconference.

Question: Are court hearings affected by the County Shelter-In Place Orders?

Many Texas Courts are rescheduling their dockets, particularly for non-emergency probate proceedings. Some courts are allowing uncontested hearings by video and teleconference. Several of the Probate Courts have remained open for live hearings on emergency matters, including emergency temporary guardianships, emergency temporary administrations, injunctive proceedings, and other emergency matters. If you have a probate matter currently scheduled with a Court, or have an emergency which you believe may require an emergency hearing, please speak with your attorney to check on the current court policies and how this will affect your case.

Question: Is my lawyer available to answer questions and work on my case?

Yes, although we are working remotely, we continue to be fully open and your case will continue to receive our full attention. You can call, email, or videoconference with your attorney during the Shelter-In Place Order.

Question: Can I consult with a Staubus & Randall attorney regarding a new probate, trust or guardianship litigation matter, or regarding estate planning which I need to complete?

Yes, please contact our main number and our receptionist will connect you with the appropriate attorney.

All of the attorneys and staff at Staubus & Randall hope you and your loved ones remain safe during this challenge. In the meantime, we are committed to working with you to provide the highest level of estate litigation and estate planning services in a safe and comprehensive way, tailored exclusively to your needs. If you have any questions please call us at (214) 691-3411.


WILL CONTESTS ON THE RISE

There is currently more wealth being transferred between generations than at any time in our nation’s history. According to the Center for Retirement Research at Boston College, it is estimated that the baby boom generation will inherit $8.4 trillion over their lifetimes. It is also clear that the number of wills being contested is on the rise. Factors including the blended family, and parents living longer and being cared for either by one of their children or by a private caregiver, can result in late-in-life changes to Last Will and Testaments, which reduce or cut out the shares of family members. This is one of the classic recipes for a will contest. Here is what you need to know if you find yourself in that situation.

When Can a Will be Contested?

A will cannot be contested prior to the testator’s death. After death, it is most advantageous to contest a will prior to the hearing to admit it to probate, which is normally within approximately two weeks after it is filed with the Court. By contesting the will prior to it being admitted to probate by the Court, the burden of proof as to the testator’s mental capacity is placed on the person offering the will for probate, rather than on the contestant, which can be a significant advantage for the contestant.

Once a will has been admitted to probate, a will contestant has up to two years from the date of the contested will’s admission to file a will contest, or it is forever barred. If contested after the will has been admitted to probate, the burden of proof as to the testator’s mental capacity is on the contestant.

What are the Grounds for a Will Contest?

The primary grounds for contesting a will are lack of testamentary capacity and undue influence. In order to prove that a testator had the necessary testamentary capacity at the time the will in question was executed, the person offering the will, assuming the will is contested prior to it being admitted to probate, has the burden of proof to show:

  1. The testator understood the business in which he or she was engaged, the effect of his or her act in making the will, and the general nature and extent of his or her property;
  2. The testator knew his or her next of kin (the “natural objects of his bounty”); and
  3. The testator had sufficient memory to collect in his or her mind the elements of the business to be transacted and to hold them long enough to at least perceive their obvious relation to each other and to form reasonable judgment about them.

In order to prove that a will is not valid because it was executed as the result of the exertion of undue influence on the testator, the contestant has the burden of proof to show:

  • The existence and exertion of an influence;
  • The effective operation of such influence subverted or overpowered the mind of the testator at the time of execution of the will; and
  • The will executed would not have been executed but for such undue influence.
  • Other potential grounds for a will contest are forgery, insane delusion, improper execution of the will, and fraud.

    Important Evidence

    Obtaining the testator’s medical records is critical to any will contest to evaluate and to establish the testator’s mental capacity and susceptibility to undue influence at the time of execution of the will. A forensic psychiatrist can also be important in interpreting these medical records. The testator’s financial records are often critical in assessing the testator’s ability to handle his financial affairs, his knowledge as to the nature and extent of his property, and any evidence that the testator was being financially exploited. Depositions of the attorney (if any) who drafted the will, the witnesses and notary to the Will, and any caregivers of the testator are essential.

    Whether you are contesting a will or are defending a contested will, it is important to have a full legal team experienced in the unique evidentiary issues, rules, strategies, and necessary expert witnesses to effectively assess and litigate a will contest.

    For more information on will contests, or on other estate litigation, trust and fiduciary litigation, guardianships, or closely-held business litigation handled by the firm, visit the firm website, www.srllp.com, where you may download two available white papers on will contests:


    The Impact of the American Taxpayer Relief Act of 2012 (ATRA) on Estate Planning

    On January 1, 2013, Congress passed the American Taxpayer Relief Act (ATRA), and shortly thereafter, President Obama signed the bill into law on January 2, 2013, ending what many had worried would lead to falling off of the “fiscal cliff,” being the scheduled radical reduction in estate tax and gift tax exemptions, and significantly higher estate tax and gift tax rates. With the passing of this important legislation, it is prudent to understand how these new laws may impact your personal estate planning.

    Highlights of the American Taxpayer Relief Act (ATRA)

    The following is a summary of the significant provisions of ATRA:

    • Sets a permanent 40% top tax rate for estate, gift and generation-skipping transfer (GST) taxes in excess of the exemption amount
    • Unifies estate and gift tax exemptions and currently sets these exemptions, as well as the generation-skipping transfer (GST) tax exemption, at $5.25 million per individual
    • Makes permanent “portability” possible by allowing the surviving spouse to elect to add the unused exclusion of the decedent to the surviving spouse’s exclusion, meaning that married couples currently can pass $10.5 million of assets without the worry of gift or estate taxes

    Increase in the Annual Gift Tax Exclusion

    In addition to the changes brought about by the American Taxpayer Relief Act (ATRA), the annual gift tax exclusion amount was increased to $14,000.00 per designee beginning January 1, 2013. This is an inflation-adjusted increase from $13,000.00 in 2012. Married couples may combine their annual gift tax exclusion amounts, which allows them to make tax-exempt gifts totaling $28,000.00 per designee.

    Planning Beyond 2013

    For many individuals who may have delayed estate planning due to the uncertainty that existed in 2012, now is the time to implement new estate plans, given the apparent stability in rates and exemptions for the foreseeable future. Even if estate taxes are not a primary focus or an issue for individuals, proper estate planning can be essential in offering protection from creditors and divorcing spouses, as well as offering protection to children and beneficiaries. Additionally, a well-developed estate plan can provide benefits in income tax planning, which is now particularly important for individuals who find themselves in higher tax brackets. Finally, proper planning is essential to small business owners who wish to do business succession planning to determine how their business will be controlled after their death, as well as which family members or business associates will benefit from and carry on the business.

    Reviewing Existing Plans

    Equally important to the planning process is the necessity of evaluating current family dynamics and changes in relationships which might affect the choices which individuals have made in existing documents, including whom they wish to appoint to make decisions for them under their health care power of attorney or general durable power of attorney, to act as guardians of their minor children or as trustees of their trusts, or to act as executors of their estate.

    Another important issue in evaluating existing estate plans is the need to adequately review the often overlooked status of beneficiary designations on joint accounts with right of survivorship, insurance policies, and retirement accounts. The failure to properly coordinate these designations with the estate plan can cause assets to be distributed to persons which the individual did not intend, in a manner inconsistent with the overall estate plan, due to an incorrect or out-of-date beneficiary designation or account styling. This can also lead to estate tax and income tax implications that were unintended.

    The American Taxpayer Relief Act (ATRA) has significantly impacted tax planning for individuals in the estate planning process. There are a number of important issues beyond estate and gift tax planning which all individuals should address and periodically review in order to secure their future and the future of their family and loved ones.

    Ryan A. Randall, ranked as a Five Star Professional by Texas Monthly Magazine, concentrates his practice in Estate and Tax Planning, Asset Protection Planning, and Business Succession Planning.


    WRONGFUL DEATH AND SURVIVAL ACTIONS

    Over the years, having litigated a number of catastrophic tort claims, I have frequently been asked by clients, as well as by students in my tort class at Collin College, to explain the difference between a Wrongful Death Claim and a Survival Claim. I explain the difference between these two claims as follows:

    • A Survival cause of action is something that belongs to the deceased for damages that he or she suffered before they passed away.
    • A Wrongful Death cause of action does not belong to the deceased but instead belongs to the surviving spouse of the deceased, a child of the deceased, or a parent of the deceased.

    The deceased person’s heir or the personal representative of their estate may bring a Survival claim. The claims that may be asserted are claims that the deceased person could have asserted had he or she survived. For instance, if a person was injured in a car accident due to the negligence of someone else and died a few hours later from those injuries, then their heir or their personal representative could assert a claim for the medical bills incurred and the pain and suffering that the person endured from the time of injury to the time of death. This is just an example of a portion of the damages that the personal representative of the estate or the heir of the deceased could assert. Any damages recovered pursuant to a survival claim are subject to the debts of the estate.

    The damages recovered under a Wrongful Death claim are to compensate the surviving spouse, child or parent of the deceased for their loss. These damages typically include loss of financial support, loss of inheritance, mental anguish, and the loss of the relationship. Any damages recovered under a Wrongful Death claim are personal to the Plaintiff, and are not subject to the debts of the deceased.

    Both the Wrongful Death claim and the Survival claim typically have a two-year statute of limitations. There are a few exceptions to this limitation, which can best be addressed with an attorney on a case-by-case basis.

    In some instances, it is preferable to assert only a Wrongful Death claim as opposed to a Survival claim, assuming you are a surviving spouse, child or parent of the deceased and are also an heir of the deceased’s estate. Whether you have an individual claim and/or are an executor or administrator of an estate which holds a potential claim relating to the Decedent’s death, it is important to consult with an attorney regarding the decision as to whether to assert a Wrongful Death Claim, a Survival Claim, or both claims, as well as to the viability and value of these claims.

    Joseph E. Legere’s practice is concentrated in Will Contests, Trust Litigation, Guardianship Litigation, Fiduciary Litigation, and Catastrophic Tort Claims. For more information regarding Mr. Legere’s litigation practice, please visit The Attorneys page at www.srllp.com.


    TRUST LITIGATION – Enforcing Beneficiary Rights

    Although trusts are designed to operate without any court supervision, trust beneficiaries have the right to file suit to enforce the express terms of the trust, as well as to enforce the legal duties owed to them by the trustee, referred to as “fiduciary duties.” Among these fiduciary duties owed to each beneficiary (including “remainder beneficiaries” who have only a future right to income or principal distributions) are the following:

    • Duty of full disclosure
    • Duty to account
    • Duty to keep and maintain accurate trust records
    • Duty of loyalty (including the duty not to self-deal)
    • Duty to make the trust property productive
    • Duty to reasonably exercise their discretion

    Beneficiaries to whom any of these duties have been breached have legal remedies which they can have enforced by a District Court, or in a larger county by a “Statutory Probate Court” (such as Dallas, Tarrant, Collin, Denton, Harris, Bexar or Travis Counties). Some of these court-ordered remedies include the following:

    • Compelling the trustee to take an action
    • Enjoining the trustee from taking an action
    • Ordering the trustee to pay back money or to restore property
    • Ordering the trustee to provide a detailed accounting
    • Suspending or removing the trustee
    • Denying the trustee’s compensation
    • Awarding a judgment against the trustee for actual and punitive damages
    • Having the Court supervise the trust and oversee all transactions

    In addition, beneficiaries can invoke the power of a court to seek an increase in the amount of their distributions from the trust, to modify the terms of the trust, or to terminate the trust and have the trust assets distributed outright. When a trust owns an interest in a limited partnership or a limited liability company, the trust litigation may involve claims against the general partner or managers of those entities, in addition to the trustee.

    The fiduciary duties imposed on trustees have been described as one of the highest duties imposed by law. Trust beneficiaries have significant remedies, and the court has extremely wide latitude in enforcing those duties, and in awarding attorneys fees to such beneficiaries incurred in enforcing those rights.

    For more information on trust litigation, please visit the firm website, www.srllp.com, where you may download a white paper entitled “Trust Code Toolbox for Locking Down the Runaway Trustee.”

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    Frequent Asked Questions

    Estate planning is the arrangement of transferring a person’s assets and property after their death. The estate plan you create may consist of cars, homes, life insurance, assets, real estate, jewelry, and other types of personal property. When you create an estate plan, you must sign it in front of a notary public.

    Even if you don’t have many assets, it’s still a good idea to create an estate plan, so that loved ones won’t argue over who gets what when you pass away. Your estate plan will ensure everything you own goes to specified parties and doesn’t end up in the wrong hands.

    Typically, those with extensive or complex assets will hire an estate planning lawyer to help draft their will. Many use a will to divide personal property, such as a home, among their family members. When you’re preparing your will, you need to make sure you meet specific legal requirements. Having a witness present when you’re signing the documents is crucial.

    Of course, it’s possible to draft a will on your own, especially if you don’t have significant assets to leave behind. However, hiring an estate planning lawyer can ensure that your documents comply with current law, and that everything gets divided among your family the way you want, so there’s no confusion.

    A power of attorney is a legal document giving power to one person (an agent or attorney-in-fact) to act on your behalf if you become incapacitated. When you create a power of attorney, you can designate a specific person and decide how much authority they will have.

    An attorney-in-fact would maintain records of all decisions made on your behalf. Some decisions could include recommending a guardian for dependents or minor children and financial decisions. They could also make decisions about healthcare.

    If you allow your power of attorney the authority to stop, give, or withhold medical treatment, you can leave instructions on which services you want and don’t want, when to stop life-saving measures, and when to cease specific treatments.

    It’s devastating to lose a loved one, and the last thing anyone wants to do is handle their affairs. However, you must ensure property and assets go to the right people, and everyone follows their final wishes.

    The first thing you should do when your loved one passes away is to request a copy of a legal pronouncement of death. You should also notify close friends and family of their death. If necessary, arrange for the supervision of dependents or minor children. You’ll also be able to find instructions on how to move forward with their plans from their will or trust.

    A trust is a document that places your assets into a trust fund to transfer to a beneficiary upon your death. Most people will create a trust to speed up the process of settling their estate. You can also protect your assets, reduce taxes, and prevent probate.

    With a trust, you’re not only able to control who your assets go to but also how the money gets disbursed. This is especially beneficial if the person you’re leaving money to doesn’t know how to save and spend properly. You can create a payment schedule with a specified amount paid to them on a weekly or monthly basis, rather than as a lump sum.

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    What Our Clients Say

    "I recently had the occasion to hire Mr. Staubus for a hotly contested Guardianship matter. Mr. Staubus brought a rare combination of effectiveness, reasonableness and understanding of the human element involved. Mr. Staubus handled all things in a calm, highly competent, effective and reasonable way. It could not have been as easy as he made it seem. He's a credit to the Bar."

    Jody

    "Before retaining the guidance of the Staubus & Randall firm, I was at my wit's end trying to close an uncle's estate as a co-executor. In addition to dealing with difficult heirs, I had other pressing business issues coming up immediately on estate land in the middle of the Eagleford Shale including dealings with pipeline, seismic, oil & gas, and construction companies. The local bank also refused to give me access to information relating to the estate. This quickly became the most stressful and desperate time in my life...and then I found Joseph Legere who truly became my guardian angel. He was able to get all issues resolved efficiently and the estate fully closed. His professionalism, immense legal knowledge on a wide variety of topics, and amazing communication skills took the burdens off of me and quickly got closure. I am forever indebted to this firm for giving me my life back."

    Martha

    "Without exception, the legal service, professional attitude, prompt communication of your firm and your legal knowledge is second to none. I only wish I had an attorney here in Boston that could hold a candle to your experience and expertise. Working with you has been a pleasure, but even more, has made me believe that there are knowledgeable attorneys that do care about doing a good job. Thank you Keith! You may not truly understand how much of an impact you are having on peoples lives, but for me, you have helped change my life. As I begin making my dreams come true I can't help but remember none of this would be possible without you."

    Joann

    "Keith Staubus and Julie Blankenship and their team represented me in a jury trial in the probate court where the ownership of the business which I had worked hard to build was at stake. They successfully fought to preserve my business and my professional reputation, working masterfully to gain the support of the jury. I would not hesitate to hire them again in any bet-the-company litigation.”

    Karen

    "I have required legal representation twice in my life in two separate will contests. Both times I sought assistance from Keith Staubus and Staubus/Randall. Their service, approach, and determination to obtain results exceeded the other attorneys in each case. Mr. Staubus has always come across as genuine while being direct. He gets the process done in a timely manner with results. I will certainly use him again when and if any new challenges arise.”

    David

    "After my husband's death, I was devastated by having to defend against a vicious dispute over my husband's estate. Julie Blankenship and Keith Staubus made me feel very comfortable in this distressing situation. They were very tough and did an excellent job for me in obtaining a summary judgment in my favor without a full jury trial. I was glad to have them and Diane Walker in my corner to help me achieve an excellent result - I won! If I ever had to go back to probate court, I would hire them again.” - (will and trust construction case)

    Flo

    "If you need intervention for someone you love but don't know where to turn or who to turn to, Julie Blankenship and Keith Staubus helped me through the most difficult and stressful time in my life with a much loved family member. I now believe that good will triumph over evil. They fought for what was right, and good prevailed." (contested guardianship and will contest)

    Janet

    "As a professional money manager, I have used Ryan Randall's estate planning services both personally and for my clients. Ryan has exhibited three critical attributes in his work with me: (1) high intellectual capacity, (2) exceptional thoroughness, and (3) a total commitment to integrity. In today's litigious world, it can be quite costly not to "get things done right.” An added bonus to us was that we found one of the nicest people we could imagine.”

    John

    "I was represented by Keith Staubus as an income beneficiary in a lawsuit with the trustee of a family trust. Utilizing the expertise of a forensic accountant and his own trust expertise, Keith was able to negotiate a judicial modification of the trust providing for the buyout of my income interest for a substantial lump sum payment out of the trust, resulting in a win-win situation for all of the parties. I highly recommend Staubus/Randall for any trust disputes and trust modification actions."

    Kathy

    "I have been a wealth management specialist and retirement plan consultant with the Dallas/Fort Worth financial community for over 20 years. I have engaged Ryan Randall to work with a number of my best clients over the years, including business owners, professionals and families. My clients always appreciate Ryan’s straightforward approach to estate planning, asset protection planning and business succession planning. He makes even the most sophisticated estate planning strategies understandable."

    Larry

    What planning we can sue for?

    When a loved one dies, and the execution of their estate plan begins, many disputes can arise among family members. Despite the decedent's creation of a good estate plan, problems can occur if a power of attorney doesn’t perform their duties or someone’s unhappy with the division and distribution of assets.

    The most common disputes estate lawyers see include:

    Bad fiduciary selection

    A majority of disputes arise when the power of attorney, executor, or trustee doesn’t correctly perform their duties when their loved one dies. That failure is called a breach of fiduciary duty. Common breaches include:

    • Failure to file tax returns
    • Using assets for personal benefit
    • Failure to provide tax and accounting information to beneficiaries
    • Dividing and distributing assets improperly

    To avoid these issues, you should ensure your loved one chooses the right fiduciary during the process of planning their estate. Careful selection can ensure there’s no breach of duty, and they act in the deceased’s best interest.

    Will or Trust Contest

    When someone contests a trust or will, it’s either because they don’t think it’s legally valid or believe someone influenced the creator into making decisions they didn’t want to make.

    To be legal, the creator of the will must sign under specific circumstances and in a particular manner. In Texas, the person must meet the following requirements:

    • Be at least 18 years of age;
    • Be of sound mind, meaning they’re able to make decisions and understand the consequences of a will;
    • Sign the will themselves;
    • Signature of at least two witnesses; and
    • List at least one beneficiary.

    Improper execution of a will is less common than undue influence. Many will argue that the creator of the trust or will made their decisions because of another party. The person accused of undue influence could be a friend, caregiver, professional advisor, or family member.

    Distribution of property

    Sometimes conflicts will arise when the creator of a will or trust intends to leave someone their property but dies before they can change their estate plan to reflect that decision. Other instances create conflicts when beneficiaries believe the distribution of property is unfair or inequitable.

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    How should I handle estate law disputes?

    If you come across the disputes listed above or any other types of disputes, there are options for resolving them. The remedy you choose will depend on the particular conflict and the people involved.

    • Remove the executor: If there’s a problem with the executor of the estate, you might need to replace or remove them. Finding a replacement can be difficult, especially finding one that all parties are happy with. However, it’s the best decision to ensure everyone is satisfied with how the estate gets handled. The best choice would be a neutral third party who doesn’t hold any biases.
    • Litigation: To litigate a dispute, you must be an inheritor and have sufficient grounds for pursuing a lawsuit. Most people will litigate if they believe there was an improper distribution of the property or suffered a financial loss because someone mismanaged the estate.
    • Mediation: This is the best option for individuals who want to settle the issues amicably, timely, and inexpensively. Mediations usually bring about quick results and cost less than litigation. You also have complete control over the outcome because there isn’t a judge or jury involved.

    The Firm

    The attorneys at Staubus and Randall have over 100 years of combined experience in estate planning, probate, and litigation. We have the knowledge and skills to tackle complex legal issues, such as guardianships, will contests, fiduciary litigation, and trust litigation. We can also handle routine matters, such as estate administration, probating wills, heirship determinations, and other probate court matters.

    Staubus and Randall received a preeminent AV rating from Martindale-Hubbell, which is the highest rating possible from a peer-rated legal service. This rating recognizes our hard work, dedication, and the case results we’re able to achieve.

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