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Elder Law

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Guardianships

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Frisco Location:
William B.C. Pittenger
8595 Meadow Hill Drive
Frisco, TX 75034
972-335-9473
972-335-0073 (Fax)
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William B.C. Pittenger
Frisco Location
972-335-9473
972-335-0073 (Fax)
bill@ppnclaw.com

For information about the Pittenger and Associates, P.C. firm, please click here.

Education
University of Texas Business School, BS 1962
University of Texas Law School, 1965

Professional and Community Involvement
AV Rated Martindale Hubbell, Partner
College State Bar of Texas, Member
Frisco Bar Association, Board Member
North Texas Estate Planning Council Estate Planning & Probate Section of State Bar of Texas
Rotary Club of Frisco
Frisco Education Foundation Board, President-Elect
Frisco Family Services, Former Board Member

Summary of Law Practice
  Following law school, Bill took a three-year position in the Trust Department of Republic National Bank of Dallas in the Trust and Estate Division, working on the management of trusts and then the settlement of estates.
  The following five years were with two Dallas law firms doing estate planning, probate, corporate, buy-sell agreements and litigation including trust interpretation litigation, gift litigation and will contests. Thereafter, a new law firm of Pittenger & Associates, P.C. was formed when launching into solo law practice in 1975, continuing in the same areas of practice as well as being outside General Counsel for several corporations, handling formations, contracts, interstate business issues and corporate advice.
  Bill practices in a variety of areas. Below, there is a summary of his primary areas of practice. The links to the left of the page can also provide additional information about his work.

Areas of Practice

WILLS, TRUSTS & ESTATE PLANNING
Simple Wills: It is important to have a Will. You do not want the State to dictate where your property goes upon death. A Will needs to be properly signed, witnessed and notarized.

Handwritten Wills: These simple documents are sometimes used in a basic situation. However, it is easy to overlook options and future events. Many times these wills are subject to a will contest. I can recall two contests over such wills involving considerable attorney time and fees in Probate Court. Why risk it?

Internet Wills: These documents are not recommended as there is not a way that they could comply with the law of 50 states. As with handwritten wills, options and future events are often overlooked. Execution may well be faulty, not complying with the Texas Probate Code. We litigated over such a Will several years ago and the intended beneficiary of all of the assets gave up about 40% of the total estate, being several hundred thousand dollars in the process. Why risk it?

Will for a Single Person: If giving property to an adult, one may not need a Trust. Just give it outright to your beneficiaries. What if the person you give it to no longer is living? Where does your property go next? What if the other choices are minor children? This may create a guardianship in the Probate Court to manage property for children under age 18, which is very expensive. Many 18 year olds are not ready to handle lump sum inheritance assets, which the law allows in a guardianship.

Trusts for Children: You can avoid guardianships over minor children or older children by creating a trust for them. These do not have to be complex. Trusts for minors can continue after age 18. Trusts for minors and adult children can protect against loss of trust money to creditors and to spouses in a divorce.

Trusts for Grandchildren: What if children do not survive and have minor children (your grandchildren), then a trust to manage assets for their schooling, college and living expenses is much better than a guardianship to age 18. Again asset protection is the name of the game for grandchildren.

Trusts for a Single Person: Why would you want to put your assets in trust for yourself? Would you want to avoid probate proceedings in Court? Would you want to select your own Trustee or money manager, rather than having a Court to appoint one for you through a guardianship? You can be your own Trustee, however, and you should have an alternate Trustee to serve if you could not handle your affairs. Would you want your children competing as to which one has the latest Power of Attorney to manage your money? We have seen this happen. Trusts avoid these problems. A professional trustee is a good choice as they are not personally motivated and certainly cannot use the money for themselves or make transfers of assets to themselves. Sometimes there is abuse of Powers of Attorney. Of course, a trust becomes a shelter for you and can be a substitute to direct and protect your assets for the next generations.

Trusts for Married Persons: When would you create a trust for a married couple? If you want to protect assets from creditors, from second marriages and possibly from estate taxation, a trust can avoid these problems.
   Point 1    The surviving spouse could be Trustee, or if desirable, one may have a professional trustee work with the spouse as a joint or co-trustee or as an agent. Example: There is a possible conflict of interest or split loyalty if a stepparent is trustee for your child and happens to remarry. An independent trustee would be the answer.
   Point 2    If the surviving spouse remarried, the trust assets remain the spouse's separate property, not to be lost in a subsequent divorce, if carefully managed.
   Point 3    Children of the surviving parent are most likely to inherit rather than lose their inheritance, by the use of a trust.
   Point 4    Trusts can avoid substantial federal estate taxes if your estate is taxable. Stay tuned on what happens in the next two to three years on estate tax changes. The types of trusts drafted to handle estate tax planning are usually known as testamentary bypass trusts or living trusts with bypass & marital deduction trusts.

Life Insurance Trusts: If the use of the tax planning trusts mentioned above has been employed and there is still an estate tax problem, then exploring several options should be done. One option is the Irrevocable Life Insurance Trust. One spouse established this type of trust and the trust, once signed, is then utilized by having the trust purchase a life insurance policy upon one spouse's life. The beneficiaries of the trust would be the surviving spouse and children. Much care has to be exercised in establishing this type of trust, as a mistake can be costly. Generally, the trust is funded by separate property of the Insured spouse, which may be created from community property by a proper partition agreement and transfers are made annually to the trust to allow the trust to pay the premiums. Much care is needed in providing withdrawal powers to the beneficiaries in an amount to at least equal the premium with a short deadline to exercise withdrawal rights of the premiums contributed to the trust. Then if not withdrawn, the funds after a proper lapse of time are used to pay the insurance premium. The withdrawal rights prevent a taxable gift from being made by the Insured to the trust under some rather complicated tax rules.

Limited Partnership Agreements: For a variety of reasons a family limited partnership may be drafted. One would be to have management of assets distributed to Limited Partners managed by a General Partner. Another may be for a business purpose to run a company such as a construction company or land development company. Another purpose may be for asset protection if a spouse is engaged in a risky business and there is a desire to protect investment assets, which are not sheltered by any state exemptions from creditors. Another may be to provide a gifting vehicle to the next generations and yet have centralized management and over time reduce the value of the estate of the parent or grandparent with discounts. This area has been very active with the IRS challenging FLPs for a variety of reasons and thus requiring great are in establishing and especially maintaining over the life of the FLP. The area of law has been changing for at least seven years.

Buy-Sell Agreements: When more than one person is involved in a business, it becomes wise to consider Buy-Sell agreements during lifetime, disability or demise of a member. Many times these are funded with life insurance contracts. For years the typical agreements have been Entity Plans and Cross-Purchase Plans. Variations have appeared over the years adding an intervening partnership to deal with the life insurance policies. Without life insurance, a buy out depends solely on the existence of the business and the ability of the business to make payments or the same concept as between partners, whether the purchasing partner will be able to meet the commitment over some years, without life insurance. There is no one agreement that fits everyone. The type of business is a material factor. The contributions of the members is also an important issue. The ability to survive in a new business is important to assess.

Employment Contracts: Employment Contracts for employees become important for non-competition and non-disclosure reasons. Usually they are at-will contracts with no specific period of employment. This area of the law is continuing to evolve. Enforceability is the real issue in these agreements. Consideration is a material issue. Our firm has been involved in litigation relating to such contracts. We have reviewed such contracts for an employee who wants to leave his company and move on to another company, only to find an onerous employment contract if he makes the move. These can be negotiated in many instances. We have protected companies from losing their client base in litigation and by appropriate drafting of employment non-disclosure provisions.

PROBATE COURT PROCEEDINGS
Guardianships
There are guardianships for minor children as well as for elderly persons. It has been my experience that guardianships for minor children are usually not a difficult issue. However, there could be instances where the Probate Judge must hear testimony as to who should be guardian. However, contests regarding the Guardian of the Person is usually brought by children and in some cases by grandchildren, who are seeking to take control over the elderly persons assets. To eliminate or reduce the possibility of litigation in these situations, I have found preparation of a Trust to manage the elderly person's assets to be superior to having to deal with long term issues pending in the Probate Court. In many cases, it is better to appoint a corporate trustee, who can properly manage the assets and give assurances to the family that as to asset management, all is well, and that the financial issues relating to the elderly person will be handled. All that might be needed in the above situation, would be the appointment of Guardian of the Person of the elderly person, to take care of their personal issues. On the other hand, possibly a well drawn Power of Attorney with elder law issues, would be appropriate.

Probate of Self-Proved Will
When a Will is self-proved, with a proper affidavit attached to the Will, then the Court does not require two witnesses to appear in Court to testify as to the execution of the Will. Thus only the Applicant and the Attorney need to appear before the Judge to conduct the full probate proceeding concerning the Will. If the Will appoints an Independent Executor, without bond, then if the executor is not disqualified, the Court will appoint that person and authorize issuance of Letters Testamentary. Later a Notice to Creditors and Inventory of assets would be prepared in most cases.

Probate as Muniment of Title
The Court may find there are no debts and thus only require that the Will be probated to pass title to assets to the named beneficiaries in the Will. This will provide a link in the title to the homestead and any other property in the estate. Other steps may become necessary especially concerning transfer of securities. Thus no executor is appointed in these circumstances. Care needs to be taken in making the decision to go this route as there could be a good reason to appoint an executor to manage the estate and to determine how the estate should be divided. An agreement among the family before such decisions are made is most important.

Court Administrations without a Will
If there is no Will, then the Court will receive an Application to Appoint an Administrator and set a Bond. This is the "long way" approach and stretches estate administration over many months, at least a year or more. The Court appointed Administrator has many duties to the beneficiaries and must carefully follow the Probate Code in handling an estate where there is no will. This type of estate may well require a Determination of Heirship to have the Court determine the heirs of the deceased. This can be a nightmare of large proportions if the deceased was single, and had no children, and the heirs were many and widespread across the country. In one case I had, the case lasted more than 7 years in the Dallas Probate Court, and even the administrator died before completion of the estate and distribution to all of the many heirs who inherited small fractional interests. This makes most people think they should get a proper Will and/or Trust prepared to avoid such a result.

MEDICAID & ELDER LAW
When considering qualification for Medicaid for nursing home care there are a number of issues.

Asset Test: Exempt and nonexempt assets; a house is exempt, car is exempt, certain household furniture is exempt, prepaid funeral in trust account is exempt, $2000.00 cash is exempt; The TDHS employee will speak about "spend down" rather than discuss any other steps or techniques to keep more of your assets.

Asset Transactions: Don't be confused - the laws that protect your assets can be confusing. Here are a few things to consider:
- Do get legal help in making any transfers as disqualification from Medicaid could occur for up to 60 months or more if assets are transferred. Penalty periods have to be carefully assessed in making transfers.
- Certain transfers are not illegal and can help if done right.
- Creation of trusts may be the wrong move.
- The creation of a trust may be useful for the benefit of a special needs person.
- Selling a house may be a real mistake as it is an Exempt Resource.
- Specially drafted Powers of Attorney can be a strategy to avoid Estate Recovery.
- The advice to "spend down" until you reach minimal assets may or may not be accurate or needed.
- The advice that the Protected Resource Amount (the "PRA") for the at-home spouse is limited to a certain figure may not be correct; steps can be taken to expand the PRA.

Income Transactions: Disqualification because of too much retirement and social security income can be overcome by a Qualified Income Trust (known previously as a Miller Trust). This is a special type of trust used solely to overcome Medicaid disqualification based upon too much income. We prepare these a few months preceding qualification for nursing home. There are specific rules of how to operate these trusts.

Disqualification from Medicaid After Entering the Nursing Home: Inheriting money from your spouse or anyone else can push you over the limit where you then will have to spend down those assets or do other planning, to be able to re-apply for Medicaid. Wills between spouses need to be altered to avoid this type of result. Planning of your spouse and other family members should be done to avoid this problem, and in some cases a "special needs trust" could be used to enhance the quality of life of the nursing home individual.

Allowing money to accumulate in the bank account past the allowable amount can result in disqualification, like allowing Social Security money to build up in the account rather than pay it over to the nursing home where it should have been timely paid.

Single Persons Planning: The above discussion has application in part to the single person. Some of the options of expanded PRA for a spouse, would not be available to protect assets. For a single person however, the Qualified Income Trust is useful and the use of transfers carefully done can reduce the amount which has to be paid as "private pay" to the nursing home, thus spending down the assets. The proper use of exempt assets is helpful. The proper handling of a homestead residence as an exempt asset and utilizing a trust is helpful also.

In summary, there are a number of considerations and possible planning steps which can be used to greatly help reduce the loss of funds, but is has to be done right considering the extensive regulations in this area of the law. In addition, the regulations issued in the Medicaid field may affect planning which has been done, thus it is important to check back with the elder law attorney to determine if any changes in the law have taken place. After an elder law plan is in force, we do not review them or send updates to our clients, as the legal work terminates and our legal representation ends upon execution of the plan. You may want to calendar ahead concerning any changes and contact the attorney regarding a review session at a reasonable cost to see if the plan should be altered.

FAMILY LAW
Pre Nuptial and Post Nuptial Agreements
These agreements are used to establish the ownership of property of each party as well as to protect the property of the respective party, as being the separate property of each party. These documents can be brief or can be rather complex depending upon the assets, liabilities and the requests of the parties.
Not only can the agreement be to list and protect the assets, but also can provide for the disposition of certain assets and what would happen in the event of the death of one of the parties.
This does not replace preparation of appropriate Wills and Trust Agreements, which should be a part of the planning between the parties.
The manner in which the documents are prepared by the attorney as well as the appropriate independent representation of each party will hopefully eliminate future disputes and/or contests. The parties should never show up at one attorney's office as this could be construed as undue influence. Each party should confer with their legal counsel totally separately.

Step-Parent Adoptions
Often we work on adoptions of children by the step-parent who is taking on the legal responsibility of a parent of the children. The bond grows closer between the step parent and the children as a result of such an adoption.
If the children's father agrees to allow the adoption of his children, then the proper documents are prepared to release the children to be adopted. Or if the parent was ordered to pay child support and ceases to do so and further does not visit with the children, this sets the grounds for termination of the parent-child relationship in a hearing before the Court. With proof of termination grounds, the adoptive father would be able, if recommended by the caseworker preparing the social study, to move forward to process a step-child adoption.
The adopted child would be considered as a natural born child under the Probate and Family Code. The last name of the child is customarily changed to the name of the adoptive parent. Sometimes the child wishes to carry their prior last name as a middle name, along with the new last name, depending upon the relationship the child experienced.
While historically we have handled adoption of children under age 18, we also handle adoption of adult children where a close bond has formed.

International Adoptions
Adoptions may include children from other countries, such as Honduras, China, Russia, India and Indonesia. Normally an agency is involved or if not there has usually been a social study or other findings by the caseworker in the particular country. In more primitive societies, the chief of the tribe may be part of the process in making findings and rulings regarding adoption, in countries like Honduras. I have completed adoptions from each of the above countries. Before any adoption can be granted, there must be a showing that the child has lived with the adoptive parents for at least 6 months.

SEPARATION AND DIVORCE
Separation Agreements (also known as post-nuptial agreements) are sometimes entered into to provide long term child support and possibly spousal support, further providing for the visitation and exchange of children and the management or partition of property of the parties.

Simple Divorce (without children)
The usual issues are valuation and division of property and allocation of existing debts and change of name. Sometimes the agreements are rather simple. Other times, the agreements may be very involved with long negotiations, mediation or trial of the case, resulting in a more complex divorce.

Complex Divorce (without children)
More complex divorces may have temporary hearings where a spouse may seek spousal support to cover monthly living expenses and obligations. The Court may be involved early on to make rulings after both parties have testified and put on their evidence. Hopefully, the trying of a temporary hearing can be simplified with conferencing between attorneys and their respective clients, to arrive an a proposed agreed temporary order. Each attorney may prepare their own version of a temporary order and/or a spreadsheet to adjust during negotiations.

Support and Possession of Children
Adding to the issues set forth above would be making adequate provisions under the Texas Family Code for the establishment of child support, normally through the guidelines established in the Texas Family Code. Further the attorneys and parties should try to arrive at agreements as to periods of possession of the children and their activities. Hopefully the parties with their attorneys should confer and attempt to reach agreements on the above issues. If not, the Court is the last resort to decide the issues when the parties cannot reach agreement.

BUSINESS ENTITIES
More information coming soon!

REAL ESTATE
More information coming soon!