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Now that we’re past Halloween, we are head-long into the holidays. Thanksgiving and Christmas are just around the corner, and soon, you’ll be surrounded by friends and family. Believe it or not, those are perfect times to talk to your loved ones about estate planning. After all, it beats talking about politics or the pandemic, doesn’t it? 


                                                               

Two terms are used in the state of Texas to describe a deed that automatically transfers title to real estate you own on your death—transfer on death deed and a “Lady Bird Deed” (LBD). The distinction between these two deeds is subtle, but very important.

Entering into a legal contract to lease property can be overwhelming and confusing, and you may be uncertain what you are committing yourself to. Whether you are looking to sign a residential or commercial lease, having an attorney assist you can be helpful and will ease your concerns.

If your loved one died without a Will, transferring his or her assets to beneficiaries can be quite difficult. If no action is taken, assets will not be properly transferred and the beneficiaries will have to take some legal action down the road to straighten out the situation. In some cases, a costly determination of heirship proceeding and dependent administration of the estate may be required. 

There is one probate procedure, however, that is quite simple—if it can be used. The key is meeting Texas statutory requirements for what is called a “Small Estate Affidavit.”

I frequently get calls about setting up a guardianship for a person who cannot manage their own affairs. Unfortunately, the people calling have no idea the expense involved in setting up a guardianship. Guardianships are complicated and time consuming. To put it simply, guardianships are very expensive. There are many steps involved in establishing a guardianship and a great deal of court involvement.

There are two types of guardianship:

• For the person - actual physical and medical care for the person                                                                                  
• For the estate - taking care of all the business affairs of the person

Sometimes, even when a person has drawn up a Will, probate of the Will may not be necessary. Advance planning with probate-alternative documents can avoid the need for probate in many cases.

Some Pre-Death Planning Examples Are:

1. A Transfer on Death Deed or “Lady Bird Deed"
2. Beneficiary Designations on Retirement Accounts, Life Insurance, Brokerage Accounts and The Like
3. A Trust Arrangement

Guardianships are a complicated legal proceeding. Most people have no clue exactly how complicated and expensive they are. In some situations, however, a guardianship is required to manage the affairs of a loved one.

I have addressed in another blog several steps that can be taken as part of the estate planning process that help avoid the need for probate. If those steps were not taken, a full probate still may not be needed.

I am frequently contacted after the passing of a loved one about whether a probate of the loved one's Will is necessary or not. The answer is the standard attorney's reply, "It depends." Sometimes, if your loved one has no assets that are not already disposed of by beneficiary designation or payable on death provisions, there is no need to probate a Will.

This frequently happens if the loved one had already sold the home and was residing in a nursing home, and the only assets he or she still owned were liquid assets. However, if there is real estate still owned by the deceased or oil and gas interests that are not in a trust, some form of probate may be required to transfer the assets. 

In this series of blogs, I am outlining various different types of probates or probate alternatives to settle an estate and their likely costs. As I mentioned in the introduction to this series, the cost is predominantly determined by the type of procedure followed. 

• In Part One, I discussed probate as a muniment of title, which is usually one of the least expensive procedures.
• In Part Two, I discussed the cost of an independent administration of the estate. Both of those procedures require the decedent to have had a Will.
• In Part Three I discussed how if there is no will, the least expensive way to settle the estate through a court proceeding is a small estate affidavit.

One of my biggest pet peeves over the years has been the over-selling of living trust packages to folks doing their estate planning. There are definitely times when a living trust is a good estate planning tool. However, for many individuals a living trust is an unnecessary expense.    

In this series of blogs, I am outlining various different types of probates or probate alternatives to settle an estate and their likely costs. As I mentioned in the introduction to this series, the cost is predominantly determined by the type of procedure followed. 

In Part One, I discussed probate as a muniment of title, which usually is one of the least expensive procedures. In Part Two, I discussed the cost of an independent administration of the estate. Both of those procedures require the decedent to have had a will. If there is no will, the least expensive way to settle the estate through a court proceeding is a small estate affidavit.  

In this series of blogs, I am outlining various different types of probates or probate alternatives to settle an estate and their likely costs. As I mentioned in the introduction to this series, the cost is predominantly determined by the type of procedure followed. This type of probate is the least expensive formal, court-administered proceeding. 

Frequently, people whose loved one dies without a Will fail to take any action to transfer property because they don’t think the estate is large enough to mess with. This leaves loose ends that must be dealt with years later, when finding the people necessary to legally make the transfer is much harder. To avoid this result, the State of Texas allows the heirs to legally transfer assets at very little expense through a procedure called a Small Estate Affidavit.

If you’ve listened to the news over the last two months, you’ve learned that the COVID-19 virus can strike just about anyone just about any time, regardless of how careful you are or how healthy you are. The initial presumption that COVID-19 was only a serious concern for elderly, otherwise health-compromised people has proven untrue. Because of that, I have received lots of calls from clients of all ages who suddenly realized it might be time for them to look at doing their estate planning.

Most young parents don’t want to even think about the possibility of death and see no need for estate planning. However, if a tragedy struck and both parents of minor children were killed, the situation left for their loved ones to deal with is extremely complicated, expensive, and emotional.

The term “Living Trust” has become a buzz word for people looking at estate planning information online or in other resources. Some of those sources of information simply may be a marketing tool to drum up business, without analyzing whether the expense involved in setting up a living trust is really justified for the individual.   

Years ago, traveling seminars would roll into town, serving steak dinners, and selling estate planning packages with living trusts for everyone, at a cost of several thousand dollars. Many of those people had absolutely no reason to have a living trust to deal with their simple estates.

My advice is that if you are thinking about a living trust for your estate planning, set up an appointment with a qualified estate planning attorney to fully discuss why you may or may not need one. 

Below are some of the reasons a living trust might be a good tool for your estate planning:

You are carrying the note on the sale of a property, and the borrower has missed several payments, has failed to provide proof of insurance, or has not paid the property taxes. If your efforts to get them to comply have been unsuccessful, it may be time to foreclose on the property.

Texas law provides for a shortened, less complicated, less expensive form of probate in specific circumstances called probate as a muniment of title. This funny-sounding procedure really means that your loved one’s will is officially recognized as valid by the probate court and placed of public record as notice to third parties to honor the terms of the will for transfer of property. This is a very simple process compared to a full, regular probate.

People frequently delay drawing up a will or other pieces of an estate plan because of concern for the cost. However, the cost of preparing a simple estate plan package is very reasonable. Compared to the expense to handle your estate without a will or other estate planning documents, it is a bargain.

This is a very uncertain time for employers in Texas. One of the key issues employers are facing is how to pay employees who cannot work because they have the coronavirus, have to self-quarantine, have been ordered to shelter in place, or have children at home because school and daycare have been suspended. Guidance on these issues is coming forth daily. 

If you have ever gone through a hospital admissions process, you’ve likely been asked if you have a living will (also known as a directive to physicians) and a medical power of attorney.

Texas law allows a slick trick to transfer title to real estate you own on your death without probate. For many people, their residence or other real estate comprises the biggest part of an estate that normally would require probate to pass title. Texas law has recognized an estate planning trick that is extremely effective and low cost, called a deed with an enhanced retained life estate or “Lady Bird” deed. This tool can be used for all types of real estate interests. If you have drawn up this deed to real property prior to your death, you might be able to avoid probate entirely, if the rest of your assets have been designated with beneficiary or payable on death arrangements.

People will frequently hear about setting up a trust as part of an estate plan. Typically, this is a revocable living trust, although some situations call for an irrevocable living trust. A revocable trust is one that can be completely or partially revoked either during the lifetime of the person creating the trust or afterward. An irrevocable trust means just that: it cannot be revoked.

Another form of trust is a testamentary trust. This is one that is set up as part of a will and does not become effective until your death. The trust I will be discussing here is a living trust. If a trust is set up under a will, that fee is included under the will preparation fee. 

Not every person needs a trust. Unfortunately, some "trust salesmen" have held big seminars as they travel through town to try to convince everyone that they need a living trust. 

Generally, unless you have a complex estate, you do not need a living trust to dispose of your estate. A living trust is a good idea if you own real property or mineral interests in another state. Sometimes, also, people prefer to use a living trust rather than a will to keep the terms of their bequests private. A will, if probated, becomes a public record, whereas a trust does not. There are other instances when a living trust is a good idea and instances when it is not.

If you have determined that setting up a trust is a good idea for you, you are most likely wondering how much it will cost you. Unfortunately, the standard lawyer answer is “it depends.”

The thought of having to do a probate for a deceased loved one is often scary. Although the legal process can appear complicated to a layman, an experienced probate attorney can comfortably guide you through the process. The actual court appearances and steps required of you as a client are very low-key and relaxed unless there is a Will contest. 

Tragedies like the recent death of Kobe Bryant, his 13-year-old daughter, the other young parents, and some of their children bring home the tragedy of thinking you are too young to do estate planning. Hopefully, these parents had done estate planning to protect the settlement of their estates for the loved ones left behind. So many times, however, that has not happened because the parents didn’t believe they were old enough to think about this. Or, commonly, younger people believe estate planning is too expensive for them to take on at this stage in their lives. Neither of these things are true!

Many people trust that the seller of the property they are buying is being fair, or that their real estate agent is covering all of the bases. Maybe they just don’t want to spend the money to have an attorney review real estate purchase agreements.     

I have seen situations, though, where large escrow deposits are subject to being lost, costs of the sale are not being fairly split, or big issues exist over restrictions on use of the property or what interests are being conveyed in the sale.

Even if you trust the seller or real estate agent, it’s a good idea to meet with an attorney before you sign or draft a contract. Doing so could save you money, stress, and headaches.


The Benefits Of Consulting An Attorney Prior To Signing A Contract

Purchasing a home, farm and ranch, or other real estate can be a scary undertaking for many people. Fortunately, real estate agents these days are very well-trained in guiding purchasers through the steps to drawing up a good, legal contract to purchase a home. 

In most instances, it is not essential to consult an attorney for a routine, simple purchase of a residence. However, even then, the assurance from an attorney that the terms are standard and fair to you may be worth the price you pay for an attorney to review the contract. 

If the terms of purchase of a home are not a typical situation with financing by a standard lending institution, such as purchasing a home with standard mortgage lending, you probably will want to consult an attorney to either help you draft the contract or review one drafted by someone else. The terms for key elements of the purchase, such as what all is included in the sale, and who pays for what costs connected with the purchase, can vary widely. You need someone protecting your interests in the deal.

For the purchase of a farm and ranch or other real estate, again, the terms can vary so widely that most buyers will want to have expert legal advice. There are questions such as whether mineral interests pass with the purchase of the property or not, restrictions on the use of commercial property, and endless other details that you might not even think of without the assistance of an attorney.

The Cost Now Versus Later

The price you pay for this advice before signing a contract can easily save you many thousands of dollars and lots of headaches and trouble in the future. A review of a standard residential purchase contract generally would not be more than a few hundred dollars. More complicated contracts, of course, would cost more to review or draft, but the cost would still be far less than any negotiation or litigation later to address problems that arise. 

It is easier to find an attorney who will review a contract or help you draft one before you purchase real estate than after the purchase when potential litigation arises. 

Better safe than sorry! 

If you have a contract you are considering signing or you need a contract drawn up, please schedule an appointment with Adair M. Buckner. Adair has helped thousands of clients through the years with the review and drafting of real estate contracts.

Proceeding, where what property belongs to each spouse is clearly set out, so that elaborate tracing of assets can be avoided. 

You are the lender on an owner-financed sale of real estate, carrying the note secured by a lien on the property. The borrower is not complying with the terms of the note. You are now faced with the daunting prospect of foreclosure on your lien. 

The good news is that the lien foreclosure gives you a process to recover some or all of the money still owed you. The bad news is that you are going to have to deal with very complicated, tricky legal foreclosure steps to get there.

I have written about how a prenuptial or postnuptial agreement can be an element in an effective financial plan or an estate plan. Many people believe that it is very expensive to have a prenup or postnup drawn up. The expense will depend totally on the situation, and may not be nearly as large as you might think. 

With so many lawyers out there, it’s difficult to know which is the right one for you. But you don’t have to settle for an attorney who isn’t a good fit for you or your legal matter.

When researching lawyers, there are 6 key questions to ask to help ensure a good fit. It’s especially important to work with a lawyer you are comfortable with and can trust.  

The time of year is coming up for holiday travel and family gatherings. Holiday travel frequently causes clients to make a desperate last minute call to my office to make estate plans. If the call comes very close to the holiday travel date, it may not be possible to get the documents drafted in time. Attorneys like to take time off to enjoy the holidays too.    
                                            

Setting up a living trust is the best way to ensure your assets are passed onto the right people if you pass away. So how do you start the process?          

The first advice I would give you is to consult an estate planning attorney. This is in the area where self-help and online resources like LegalZoom can get you into trouble. If the trust and follow-up steps are not done correctly, you can have totally wasted the time and money you may have invested in the program. 

After you have found a qualified attorney, follow these steps...

In this series of blogs, I am outlining various types of probates or probate alternatives to settle an estate and their likely costs. As I mentioned in the introduction to this series, the cost is predominantly determined by the type of procedure followed. 

In this series of blogs, I have outlined various different types of probates and probate alternatives to help you settle an estate and understand the potential costs. As I mentioned in the introduction to this series, the cost is predominantly determined by the type of procedure followed. 

• In Part One, I discussed probate as a muniment of title, which is usually one of the least expensive procedures. 
• In Part Two, I discussed the cost of an independent administration of the estate. Both of those procedures require the decedent to have had a will. 
• In Part Three, I discussed how if there is no will, the least expensive way to settle the estate through a court proceeding is a small estate affidavit. 
• In Part Four, I discussed the high cost of a proceeding to determine heirship and for administration of the estate.

Today, I’ll walk you through dependent administration, a type of proceeding that can potentially be more expensive.

Your wedding day has come and gone, and you never got around to drawing up that prenup agreement. 

There is good news. If you and your spouse can agree on the parameters, it’s not too late to outline how your property will be classified, as community or separate, how your joint finances will be handled, and support for children from prior marriages —even if you’re already married. You can still accomplish this through a postnup agreement. 

The sooner you create a postnup after the marriage, the easier it is. However, a postnup agreement can be done at any time, regardless of how long you have been married. 

A postnup agreement even can be a tool in an estate plan to clearly delineate each spouse’s separate property if the plan for distribution of that separate property is different from the rest of the estate plan. 

In this series of blogs, I am outlining various different types of probates or probate alternatives to settle an estate and their likely costs. As I mentioned in the introduction to this series, the cost is predominantly determined by the type of procedure followed. In Part One, I discussed probate as a muniment of title, which usually is the least expensive procedure. Many times that type of probate is not appropriate, though, and an independent administration is required.

One of the first questions the family of a loved one that has passed will ask is, “What will it cost to settle the estate?”

If an attorney handles incorporation for you, he or she should take all of the steps necessary to set you up to go forward conducting business according to sound legal requirements to preserve the protection that is a primary goal of incorporation. This would include filing a certificate of formation with the secretary of state, drawing up initial bylaws or operating agreement (for a LLC), drawing up minutes of the organizational meeting, issuing stock or membership interests (for a LLC), and providing forms for minutes on an ongoing basis.
     

Also, the attorney usually will provide a set of instructions to you on formalities that need to be followed after incorporation to maintain protected legal status of the corporation.

Many people are afraid of drawing up a will and doing other estate planning because of the perceived high cost. The truth is, drawing up a will is a small cost compared to the cost of probate of an estate if you die without a will and own almost any property.
             

For a simple “Mom and Pop” will, where spouses leave everything to each other, if surviving, or on the death of the survivor to their adult  children, the cost is not likely to be more than $500 per person. Even if trust provisions are added to the will for possible minor beneficiaries, the cost is still likely around $750 per person.

How prenups dovetail with estate planning

Prenups Aren't Just For The Rich And Famous. 6 Reasons To Have A Prenuptial Agreement

Families frequently come to me needing to know how to figure out who gets what when a loved one dies without a will. Unfortunately, the answer is that they may be in for a lot of expense and time in a very complicated legal proceeding.

Is incorporation right for my business?

If you ask me whether you should incorporate or not, I will give you the typical lawyer response, “it depends”. Each situation is different and depends on many factors.

Three key factors that go into making the decision of whether to incorporate or not are:

1. Liability Protection For Personal Assets

2. Income Tax Pro’s & Con’s

3. Business Management Pro’s & Con’s

Learn more about these three factors below.  

Estate planning isn't just for rich or older individuals. Even young, asset-poor 20-somethings should start thinking about how their property will be distributed in the event of a tragedy. Drawing up an estate plan is not as much an action you need to take for yourself, but one you should take for your loved ones. 

Just like an older individual, a young, single person has as much need for a will to designate who would receive anything in the event of his or her death. Whether you have a little or a lot, without a will, the State of Texas will assume your parents should receive your estate. This may not be your preference. Therefore, creating an estate plan will help ensure your wishes are met.

In addition, in the event of your passing, a loved one would also have to spend a great deal of money to go through an estate administration process. If you draw up a will, you could prevent your parents from enduring this stressful, expensive situation.

Hopefully, you recognize the issue before it’s too late to pre-plan. The time to seriously review all of a loved one's financial and estate planning affairs is in the early stages of Dementia or Alzheimer's. Progression of the degree of incapacity varies from person to person. Obviously, a visit to a physician for a diagnosis and treatment plan should be your first priority. Then a visit to an attorney should be next.

Pre-Planning is Key

Pre-planning is necessary to avoid needing a guardianship. People live much longer these days, and Dementia and Alzheimers are a common issue families face with loved ones or themselves. Pre-planning to deal with incapacity is very smart.

Failing to pre-plan means that it may be necessary to open a court-administered guardianship. This proceeding is very complicated, time consuming, and expensive. The time to avoid all this is before you or your loved one becomes incapacitated. If you are your loved one are already incompetent, it is too late! Guardianship is the only option then.

This blog is part two of What Do I Do If A Loved One Dies Without A Will. Part One discussed an Application To Determine Heirship  proceeding, the more formal court proceeding to determine heirs and order transfer of property.

Sometimes, we determine after a review of the assets of the deceased loved one that a more informal, less expensive “Affidavit Of Heirship” would be sufficient.

It is not always certain that third parties will accept the informal “Affidavit,” but because it is so much less expensive than the formal court proceeding, it may be worth trying this first.

Unfortunately, I get this call many times every day. If the property in the estate does not exceed the value of $75,000, not including the value of a homestead, a court proceeding called a “small estate affidavit” can sometimes be used. However, in most situations, this very simplified proceeding cannot be used. In those situations, there are generally are two options.

• Application for Determination of Heirship (a court proceeding)
• Non-court Involved Affidavit of Heirship

Which of these two options will be best varies with each situation, depending on the types of assets owned and the third parties who will be required to transfer the assets. Some third parties only will accept the court proceeding. Commonly, this could be brokerages and insurance companies. However, many third parties will accept the less expensive Affidavit of Heirship. Even title companies routinely accept an Affidavit of Heirship to transfer title to real estate unless there is a very large amount of money involved.

This is part one of What Do I Do If A Loved One Dies Without A Will? Here I will discuss the more formal application for determination of heirship.

Here are three simple tools that help you pass on assets at death without the necessity of probate, saving all parties money, time, and stress.

A common misconception about prenuptial and postnuptial agreements is that they are only desired by wealthy, greedy individuals. Truthfully, many couples benefit from having such an agreement in place.

When should a property owner carry the note on the sale of a property? There are four key factors you should consider before deciding to finance the sale of your property.

5 Times You May Need An Attorney To Help You Buy Or Sell A Home

What Is A Limited Partnership?

A limited partnership is just another type of partnership. It is different from a general partnership because it has both general partners and limited partners. A limited partnership is also considered a distinct entity from its partners.

What Is The Difference Between An LLP And An LLC?

What Is An Subchapter-S Corporation (S-Corp) And Do I Need It?

Oftentimes, I have clients come to me asking for an S-Corp, not knowing what this really means.

An S-Corp is not a different form of corporation, but rather a special tax treatment of one or more standard Texas corporations. The incorporation with the Texas Secretary of State actually has nothing to do with the S-Corp status.

A primary reason for incorporation is to protect your personal assets from claims of creditors of the business. You want to be able to keep your personal assets if you can’t pay the bills of the business, or have some other large liability claim against the business not covered by insurance.

A sole proprietorship is a business operated by one individual (or a couple). The business is considered an extension of the individual (or couple), not a separate entity. The business profits and losses are included on the individual's personal tax return, and the individual retains personal liability for the business debts and lawsuits.

Is there more than one type of probate? In Texas, there are two broad types of probate.

Learn more about the two types of probate in Texas by watching the video.

How long does the probate process take? Well, it depends on a number of factors.

Learn more about what affects the probate process by watching the video.

How soon must a will be probated after death? In Texas, generally a will must be filed within four years after the date of the death, but we encourage you to do it sooner rather than later.

Learn more about the probate process and how soon you should probate a will by watching the video.

What is probate? Probate, while usually referred to as any legal action to handle an estate, is actually the administration of a will upon the death of an individual. 

Learn more about probate by watching the video.

Many people have heard the term “living trust” and think it is a magical estate planning tool for everyone. For some people, a living trust truly is a smart way to handle their estate, but for others, it is an unnecessary expense.

Today, there are many ways you can go about getting a will. To ensure your will accomplishes your wishes, while also avoiding the greatest expense and complication, you should consult with an experienced estate planning attorney.

While not everyone needs a will, it’s wise to explore whether it would be a smart investment for you and your family’s future. I can explore with you whether the assets you own can be passed down without a will or whether having a will is really key to simple passage of title to assets on your death.

People frequently delay having a will drawn up because of concern for the cost. The cost of preparing an estate plan package is very reasonable. Compared to the expense you would be out to handle your estate without a will or other estate planning documents, it is a bargain.

A lot of people come to me with questions regarding what a will is, because it is so important for passing your legacy on to the next generation.

This may sound surprising but almost everyone needs estate planning done in their lifetime.

Whether you are a young couple with children, an older individual nearing retirement or a same-sex couple, having an estate plan in place can protect your assets and legacy.

Trusts are an excellent tool to provide for the future needs for yourself or your loved ones.

A trust can be especially beneficial if you have children with special needs, including minor children and adult children with disabilities. You can also create a trust for yourself if you need to apply for Medicaid and your assets exceed the limits to qualify.

Welcome to Adair M. Buckner’s new website. We are excited to unveil our new look to you!

When researching potential attorneys for your case, always do your homework.

Choosing an unqualified or dishonest attorney could not only result in a negative outcome for your legal situation, but it could also cost you more money in the long run.

Here are four consequences of choosing the wrong attorney to represent you.

If you are like many of my clients, this is a very important question for you.  We have been planning for how to address the new DOL rules on the increased salary threshold for classifying an employee as exempt to become effective on December 1, 2016.  

Last week, hundreds of Pride events took place across our nation to celebrate and support the LGBT community. In reflection of Pride Week, let’s discuss the necessity of estate planning for LGBT individuals and couples. 

The assault on independent contractor classification of workers by employers just heightened another step. On July 15, 2015, the US Department Of Labor (DOL) issued a new guidance that narrows the definition even more. Many workers who have been classified as independent contractors will have to be recognized as employees

Most employers should know this by now, but apparently, all don’t.  The EEOC recently won a judgment from a Missouri federal district court that a farm in Missouri violated the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) by requiring all job applicants to fill out a health history form before they were considered for a job. 

Do you know how the new FLSA overtime pay rules affect non-profit organizations?

If you are a non-profit organization and are concerned about how the new FLSA overtime pay rule will affect your organization, please view the Dept. of Labor’s Guidance for Non-Profit Organizations on Paying Overtime under the Fair Labor Standards Act and Overtime Final Rule and the Non-Profit Sector. These documents explain individual coverage, enterprise coverage, as well as white collar exemptions under the FLSA.

Download documents by clicking the links below.

The clock has been pushed ahead on a possible compliance date for the new Department of Labor (DOL) rule revising the minimum salary level for white collar overtime exemptions. 

Top 10 Reasons You Need a Will

No matter your age or financial situation, it is extremely important to have a will in place. Here are the top 10 reasons you need a will. 

The New Year is a good time to review employee pay practices. Wage and hour lawsuits continue to be the most fertile area for employee claims against employers. 

The fight continues between employers and the U.S. Department of Labor (DOL),  the Internal Revenue Service (IRS), and state employment agencies over who can truly be classified as “independent contractors”. Misclassification can be tragic for employers. Don't let your business be one of the targets.

Big Decisions Have To Be Made

Do you allow guns in the workplace, or do you not?  Employers and HR professionals are caught in the debate and legal consequences between maintaining a safe workplace and allowing employees to possess firearms in the workplace. 

Many people have no idea what state law says about distribution of their property if they die without a will (intestate). With blended families, the issues can become complicated.

The Fallacy Of Thinking "I'm Too Young To Need A Will"

Most young people cannot conceive that they might die in the near future. Younger people, particularly those with minor children, have as great or greater need to have a will as older folks do. Failure to take care of estate planning can cost 10's of thousands of dollars in expenses which could have been avoided.

First Proposed Revision - Salary Basis Test: One issue raised is that the $455/wk. salary is too low to justify exempting many workers from receiving overtime for many so­‐called “white collar” workers. This wage  amounts to $23,600.00 per year. This baseline figure  has not been updated since 2004. This failure to update the overtime regulations leads to an exception to overtime eligibility originally meant for highly-compensated executive, administrative, and professional employees, who earn little more than the wages for a poverty-level family of four wages.

The United States Supreme Court issued its landmark ruling Friday, June 26, 2015, in Obergefell v. Hodges, holding that the U.S. Constitution guarantees a right to same-sex marriage. Read the Court's full opinion here. 

Learn what the top 10 mistakes are and how to avoid them.

There are at least six really good reasons for you to have a living trust in your estate planning package.  

Scary wage and hours cases continue to fill the news headlines with big settlements or potential damages against employers who do not pay correctly under the Fair Labor Standards Act (“FLSA”). 

Huge Settlements or Awards Reached

Multi-million dollar settlements of claims for unpaid wages under the FLSA have recently been reported. 

View this SlideShare to learn key rules for paying employees properly.

NLRB General Counsel Issues “Guidance on Employer Policies”

The General Counsel of the NLRB recently issued a lengthy memo, which you can access at www.nlrb.gov/reports-guidance/general-counsel-memos, spelling out employee handbook policies it considers both lawful and unlawful under the NLRA.  Employers should carefully review this Memo and review their employee handbooks or policies against it for compliance.  

Employers constantly try to avoid paying employment taxes, overtime, and benefits to workers by calling them independent contractors. 

A soon to be effective U.S. Department of Labor (DOL) revision to the Family and Medical Leave Act (FMLA) regulations’ definition of “spouse” will change how Texas employers have to respond to same-sex-spouse-related leaves.  

Preparing a will is a smart, compassionate, financially-wise, and easy thing to do. So, stop making excuses, and do it! Anyone who has been through settling an estate for a loved one who failed to make a will can attest to how much they would have preferred the alternative.

Many home health care agencies were getting ready for a drastic change in their pay practices as a result of a new Department of Labor (DOL) regulation that was to take effect on January 1, 2015.  The new regulation would have kept third-party employers, who constitute more than 90% of the home care industry, from claiming companionship and live-in exemptions from minimum wage and overtime pay rules.  They got a big Christmas present!  

The U. S. Supreme Court just issued a unanimous decision in Integrity Staffing Solutions Inc v Busk, et al, (Dec. 9, 2014), which was widely called “the security check case”.  Warehouse workers had sued Integrity Staffing for uncompensated time they were required to spend in security screenings lasting up to 25 minutes at the end of their shifts while assigned to work in Amazon warehouses. The Supreme Court ruled employees do not have to be paid for time spent waiting for and actually undergoing security checks. 

Employers frequently will use a “Severance Agreement and Release” when terminating an employee as a means to head off possible post-termination legal claims. Such agreements always have been subject to stringent requirements to be valid and enforceable. In a number of different cases recently, the EEOC has challenged what have been standard release of claims provisions and other terms in such agreements, saying they violate the Age Discrimination in Employment Act (ADEA) and Title VII.

Several employees joined each other in a Facebook exchange in commenting about their boss messing up the withholding on their paychecks. One employee went so far as to say, “What an asshole!”, referring to her boss. Another employee “liked” her remark but said nothing more. The boss didn’t take kindly to either activity and fired them both.

DOL To Begin Increased On-Site FMLA Compliance Investigations

The head of the U.S. Department of Labor FMLA Branch has announced DOL will focus on conducting more on-site compliance investigations to: (1) increase investigators’ access to information; and (2) save time by reviewing the employer’s documents and interviewing employees on-site.

Most employers have policies to protect what they define as their company’s “confidential information”. Many of those policies now violate National Labor Relations Board (NLRB) pronouncements and cases that say they unlawfully restrict or punish employees for engaging in protected “concerted activity”. If you have such policies, you need to review them now for compliance with the latest legal developments in this area of employment law. 

There are a number of possible benefits to incorporating a business or forming a Limited Liability Company (LLC), including personal asset protection, business credibility, and possible tax advantages.  Incorporation also offers greater confidentiality as to who the investors, officers, and all but the initial directors are than other business formations. However, you must follow corporate formalities after incorporation to maintain the “corporate veil” of protection and benefits of incorporation or LLC formation or they can be lost.  There are possible downsides to incorporating also, which should be considered.

A recent news release in Amarillo, Texas, illustrates what can happen if employers do not carefully monitor and observe DOL regulations on how they are paying tipped employees.

The Big Texan Finds Itself In A Wage And Hour Investigation

The Big Texan Steak Ranch in Amarillo, which has a national reputation, has agreed to pay $650,000 in minimum wage back wages and $150,000 in liquidated damages to 279 current and former wait staff following an investigation by the U.S. Department of Labor's Wage and Hour Division. The DOL found violations of the Fair Labor Standards Act's minimum wage and record-keeping provisions arising from a tip pooling arrangement by the restaurant.

NLRB Says Conduct Was Protected Activity

The Background of the Case

This is how the story goes: An employee complained about pay practices at the business where he worked. The employer, owner of the business, took the employee into his office and told him that he had to follow the employer’s policies and procedures, and that he should not be complaining about his pay. The employer told the employee, “that if he did not trust the him, he need not work there.” The employee then became irate and started yelling at the employer, called him a “fucking mother fucking,” a “fucking crook,” and an “asshole,”, that he was stupid, nobody liked him, and everyone talked about him behind his back. During this tirade, the employee also pushed his chair aside and told the owner that if he fired him he’d regret it. The owner obliged & fired him. 

A recent federal appeals court decision seems to say “Yes” under the facts in that case.  This was found to be true even though the employer claimed working as part of a team was an important part of the job.  The 6th Circuit U. S. Court of Appeals in EEOC v. Ford Motor Co., No. 12-2484 (April 22, 2014), found an employee suffering from irritable bowel syndrome (IBS), who was deemed disabled under the ADA, was entitled to consideration of whether a “reasonable accommodation” to allow her to perform her job was telecommuting.  She had been terminated after poor performance ratings, which arose from excessive absences due to her disability.  The trial court had granted the employer, Ford Motor Co., a summary judgment that she was rightfully terminated and that telecommuting was not a reasonable accommodation.

Scary wage and hours cases continue to fill the news headlines with big settlements or potential damages against employers who do not pay correctly under the Fair Labor Standards Act (“FLSA”).

What Could Be Wrong With Confirming "Employment At-Will" Status? 

Most employers are advised by counsel to include language in employee manuals and agreements confirming that employment status is “employment at-will”. Some go on to provide that this status cannot be changed except under very specific conditions.  Could these provisions violate the National Labor Relations Act (“NLRA”)?

How To Stay Ahead Of Potential Department Of Labor Wage And Hour Audit
The U. S. Department of Labor (“DOL”) continues to step up its audits and investigations, both DOL-initiated and employee-complaint-triggered. This coming year may see records numbers of audits. 

Are The Pay Rules For Home Health Care Workers Changing?

Overtime pay and minimum wage rules will become the rule rather than the exception for home health care workers in the future. The Department of Labor (DOL) recently published its “final rule”, which would do away with the exemption from minimum wage and overtime pay for home health care employees in all but a very narrow range of pure “companionship” services.  The changes will be significant for home health care employers.  Fortunately, the new rule does not go into effect until January 1, 2015, so home health care employers will have time to adjust their staffing and pay practices. 

Why Have An Employee Handbook?

I have covered in an earlier blog why an employer of any size should have an employee handbook.  First, it helps employees know what is expected of them and provides the rules on which disciplinary action can be based. Second, the handbook can provide useful protection and defenses against employee actions.  Please refer to this earlier blog for more discussion.

There’s a new issue for employers to struggle with now. Early this summer the American Medical Association (AMA) officially determined that obesity is a disease. That leads to the inevitable next question for employers subject to the Americans with Disabilities Act (ADA) (those with 15 or more employees): Is obesity a disability, considering all of the ramifications that flow from that possibility? Then all shades of other questions pop up, such as “how overweight must a person be to qualify  as ‘obese’”; “how does an employer determine whether an employee is obese enough to require accommodations in job performance”; and “what accommodations might be required to allow him or her to perform the essential functions of the job?”     

The U. S. Supreme Court ruled recently that the portion of the Defense of Marriage Act (DOMA) which denied recognition of marital status to couples of the same sex under federal law was unconstitutional. This ruling expands potential FMLA coverage as a result to same sex spouses. Employers will have to fine tune administration of FMLA leave to determine whether leave related to a same sex spouse issue should be granted. The employer will have to grant FMLA leave to an employee for legitimate, covered requests for a same sex spouse, if the affected employee resides in a state that recognizes same sex marriage.

The Equal Employment Opportunity Commission (EEOC) continues to emphasize its distaste for employer criminal background checks in the employment process, especially when they are not very carefully used. The EEOC filed suits against Dollar General and a contractor running a BMW plant in South Carolina for use of information obtained through criminal background checks to reject an applicant for a job or to fire employees, claiming the practice results in discrimination against blacks because of their higher arrest and conviction rates than Caucasians.

Employee Handbooks can protect employers in a number of ways.  Each handbook should be tailored to the specific employer’s practices, size, and special business considerations, though.  A total boiler-plate handbook does not fit all employers.  A pro-forma handbook an employer gets off the Internet may commit it to requirements it legally might not otherwise have to meet.

Texas Court Finds A Real Independent Contractor

Finally, a victory for an employer on an independent contractor worker classification!  This usually is a losing battle for employers who try to classify workers as independent contractors instead of employees, thus avoiding payment of overtime, minimum wage, withholding and social security taxes, and the like. Many employers have been subjected to Department of Labor audits and private collective action lawsuits (or Texas Workforce Commission or IRS audits) over this issue and have lost.

Recently, however, the Federal District Court for the Southern District of Texas held that gate attendants who worked with a prominent provider of oilfield gate attendant services correctly were classified as independent contractors under the FLSA. Gate Guard Servs., L.P. v. Solis, 2013 U.S. Dist. LEXIS 20156 (S.D. Tex. Feb. 13, 2013).  This case is a primer for employers on what it takes to meet the heavy burden of supporting such classification of a worker.

If you’ve been keeping up with news, even on a local basis, you know that Fair Labor Standards Act (“FLSA”) claims (wage & hour overtime especially) continue to be a Number One source of headaches and big payments for employers.  The dreaded “collective” FLSA action, brought by one or more employees on behalf of all employees similarly situated, can bankrupt an employer.