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New Braunfels Herald Zeitung (Newspaper) - October 1, 1991, New Braunfels, Texas Herald-Ze/fu/ig, New Braunfels, Texas Tuesday, October 1, 1991 Page 7 BARRY D. MOORE GENERAL PRACTICE BOARD CERTIFIED RESIDENTIAL REAL ESTATE LAW Texas Board Of Le?a1 Specialization 245 S. Seguin 625-7751CORNELIUS & POWELL ATTORNEYS625-6933 391 LANDA STREET NEW BRAUNFELS, TEXASKENNETH D. BRAZLE ATTORNEY AT LAW 395 UNDA NEW BRAUNFELS, TEXAS 78130(512)629-8008 FAX (512)629-2161TROY D. BURCH, JR. BEVIL & CHUNN ATTORNEY AT LAW 389 S. SEGUIN (Across from the Civic Center) TEL. (512)625-9117 WADE ARLEDGELAWYER 245 S. SEGUIN NEW BRAUNFELS, TX. 78130 (512)629-81*5Ronald D. Zipp ATTORNEY ANO COUNSELOR AT LAW 384 LANDA NEW BRAUNFELS, TEXAS 78130 24 HOUR NUMBER (512) 629-5600 OFFICE HOURS: MONARI. 8:30 a.m. - 5:00 P.M. EVENINGS, WEEKENDS & HOLIDAYS BY APPOINTMENT Civil Litigation FAMILY LAW FAMILY LAW Q. What is the cost of exploratory consultation to determine the feasibility of pursuing a civil litigation? A. Attorneys who emphasize civil trial law in their practice will generally meet with a prospective client at no charge for the initial consultation to evaluate the feasibility of pursuing a lawsuit or claim. Upon a favorable evaluation by the attorney of the probability of establishing legal responsibility (liability) on another party and demonstrating sufficient monetary damages, many civil trial lawyers will handle the claim or lawsuit on a pure contingency fee basis. That is, the attorney will receive a percentage of the recovery as his fee. If there is no recovery, there is no fee. In some instances, if the evaluation is less favorable either as to liability or damages, a combination of a contingency fee and a retainer fee from the client may be suggested. However, in those instances of an unfavorable evaluation of liability and/or damages, the attorney may suggest a fee arrangement based on an hourly billing rate for services rendered. FAMILY LAW Q • My former husband possesses property (certificates of deposit) awarded to me by the divorce decrece. I cannot afford more attorney fees and will have to handle this pro se. What is the proper motion to file with the court, and does it require seravice of citation as would most motions? lf the wording in the decree is specific enough the CD can be obtained with a motion for contempt, which is one form of a motion for enforcement. If the language of the decree does not support a holding of contempt the petitioner can still pursue an enforcement order from the court under Texas Family Code Ann. Sec 14.31. BANKRUPTCY Q. If a homeowner files a Chapter 7 Bankruptcy, may that homeowner exempt the homestead? A Under both the Federal and Texas statutes creating exemptions, a homeowner, so long as he makes payments according to their agreement with the mortgage company, may exempt their homestead from bankruptcy. Homestead means the residence in which homeowner intends to live. DEADLINE FOR SUBMITTING QUESTIONS FOR NOVEMBER 5th, is OCTOBER 25th Q. How old can a person or child be to make their own choice of whom to live with in a divorce case. A. The court always looks at the best interest of the child in determining the question of managing conservatorship, possession, and support of an access to the child; however, if the child is fourteen (14) years of age or older he may indicate to the court his choice of managing conservatorship. That choice is subject to the approval of the court. A child under the age of fourteen (14) and above the age of twelve (12) shall confer with the child upon application of any party when the issue of managing conservatorship is contested. A child under the age of twelve (12) may confer with the court upon application of any party. Interviews in cither incident do not alter or diminish the discretion power of the court and the court’s primary consideration continues to be the best interest of the child. PROBATE Please explain what revocable, living trust are, what independent probate administration is, and what the advantages and disadvantages arc of one versus the other. A# Living trusts are established during the lifetime of the person establishing the trust as opposed to testamentary trusts which are set up in the Will of a person at the time of their death. A revocable, living trust is a trust established during a person’s lifetime which that person can revoke, as long as they are competent to do so. Independent probate administration is the administration of a person’s estate at the time of their death without court supervision. Since Texas allows the administration of a decedent's estate without court supervision, a living bust is not necessary to avoid a court administered probate proceeding in Texas. In many states, a living trust is a low cost alternative to probate, because of the complexity of their probate proceedings and their state inheritance tax based on the amount of property passing through probate. Although, avoidance of probate and the avoidance of Texas inheritance tax are not legitimate reasons for establishing a revocable, living trust in Texas, there arc certain situations where they are desirable. For example, one may not be able lo manage their own affairs and need to appoint a Trusicc to handle their financial matters for them. But it would be just as foolish for someone to create such a trust without seeing a lawyer as it would be for them to remove their appendix without first seeing a doctor. Very few people need to go to the expense and trouble of transferring all their assets to a bust. Q lf a judge orders a man to pay $300 a month for child support and his ex-wife keeps the vehicle they both shared while married, is it legal for him to pay the car note in lieu of child support? A* lf die father makes the ex-wife’s car payment instead of making the court-ordered child support payment he can be held in contempt of court for failure to make the child support payment as ordered. If held in contempt he can be fined and put in jail. He can also be prosecuted for the offense of criminal non-support, a Class A misdemeanor for the first offense. RETIREME Q. What is the law on retirement established in another state before moving to Texas? A. Unless the retirement holds certain provisions regarding its treatment as separate or community property, or your spouse has executed documents regarding same, the general rule in Texas is that the non-working spouse has a community property interest in that portion of the retirement benefits of the working spouse which were earned during their marriage. The retirement benefits belonging to the community estate is generally determined by dividing total months of employment into months of employment while married. Agreements, contracts, busts and other matters may cause the general rule to vary. Q* Is it necessary a for a couple without any children who made oust two wills while living in New Yolk to make new ones since moving to Texas? The wills leave to each other entire estate, making the survivor executor to serve without bond. We hear state law varies and New York applies estate or inheritance taxes, while Texas doesn’t. A* It is not always necessary to make a new Will when moving from one state lo another. Most stales, including Texas, recognize the validity of a Will executed in another state. However, I would still recommend that you have a Texas attorney review your New York Wills. In Texas, it is important to name “independent” executors to insure that the executor may act without Court supervision. In addition, the Will should be “self-proving” to make it easier to probate without the necessity of obtaining affidavits or testimony from attesting witnesses at time of probate. In regard to inheritance taxes, law docs vary from slate to state as to state inheritance taxes. In Texas, stale inheritance tax is only due if federal inheritance tax is due. Therefore, in a bequest to a spouse, there would be no federal or state inheritance tax because of the unlimited marital deduction. In other cases, the current federal exemption of $600,000.00 would apply before any federal or state inheritance tax is due. Q • I am still confused about the definition and explanation given on independent probate administration in the state of Texas. Does this mean that a decedent’s Will need not be filed for probate at all if the Executor named in die Will is a surviving spouse, son or daughter? Please explain. A.No. A will must be filed and admitted to probate to be effective. However, if the executor appointed in the will is named as an independent executor, then the executor is free to administer the estate without any court supervision or any court appearances other than a very brief appearance that is required to have the will admitted to probate. This freedom is enjoyed by all independent executors regardless of whether or not they are related to the decedent Texas law requires the will to contain special language to authorize the executor to act independently of the court. Civil Litigation Q. Is there a Small Claims Court in this area? If not, are there any local lawyers that will handle such litigation for a claim of $1,000.00 or less? A. Yes. Each county has at least one small claims court which operates in conjunction with the Justice of the Peace who sits as Judge of the Court. This Court is designed to simplify the procedures involved for a person to handle their own claims when the amount involved may not justify the representation of an attorney. However, a person may represent themselves in small claims court or be represented through an attorney, lf a person does not feel comfortable handling their own claim, attorneys who regularly handle civil litigation and recovery of claims in their practice will often represent a person on a claim of a relatively small amount. The jurisdiction of the small claims court is for an action for the recovery of money not exceeding an amount of $2,500.00. A small claims court action is instituted by the filing of a sworn statement of the claim before the judge or clerk of the Court. A person interested in pursuing such claim should contact the clerk of the Justice of the Peace Court in the precinct in which they live and request information concerning the filing of such an action.Carter Casteel Attorney and Counselor at Law OFFICE: (512)625-7751 245 8. SEGUIN RESIDENCE: (512)625-8621 285 RIO DRIVE NEW BRAUNFELS, TEXAS 7I1SIGary D. Mathis, JD, CPABoard Certified -Tax Law Texas Board of Legal Specialization 348 E. San Antonio St. 625-7531ft. feftUCE BOYER I Attorney at Law 376-A Landa Street New Braunfels, Texas 78130 512-625-6511 512-625-7117 512-620-6000 FAX Board Certified Residential Real Estate Law Texas Board of Legal Specialization_GARY L. STEEL ATTORNEY AT LAW 297 W. SAN ANTONIO NEW BRAUNFEL, TEXAS 78130 (512)620-1699 JOHN J. CURTIS Attorney at Law Executive Banc, Suite 180 NEW BRAUNFELS, TX 78131-1998 (512)620-7509 Law ONk» 0« Kimbel L. Brown Attorney At Law (Former Assistant County Attorney) Civil and Criminal Practice Since 1991 625-3455 280 N. CASTELL NEW BRAUNFELS, TX FULLY LICENSED SY TEXAS SUPREME COURT, UNITED STATES DISTRICT COURT FOR SOUTHERN * WESTERN MSTRWTS (NOT BOARD CERTIFIED BV TNC TEXAS BOARD OF LEOAL SFECIAUZATIONStJOHN BEVIL BEVIL & CHUNN ATTORNEY AT LAW 389 S. SEGUIN TEL. (512)625-9117 THE ATTORNEYS SPEAK IS FEATURED EVERY FIRST TUESDAY IN THE NEW BRAUNFELS HERALD-ZEITUNG QDo you have a legal question you would like featured " in The Attorneys Speak? A Ask the experts. The Attorneys Speak will be published • every first Tuesday. Please include return address. Mail your questions to: The New Braunfels Herald-Zeitung c/o The Attorneys Speak P.O. Box 311328 New Braunfels, Tx. 78130 The purpose of this page ii ta inform the public of the law r.rvi generaDy sddreei it* application. Specific queetiona re ganging the law should be directed to your per eons Attorney. No legal deciiiom ihould be baecc on information in this column without consulting your own attorney. For aeeiitance or further information ref ai ding The Attorney! Speak call625-9144JOHN C. CHUNN BEVIL & CHUNN ATTORNEY AT LAW 389 S. SEGUIN TEL. (512)625-9117JACK ROBISONATTORNEY AT LAW 391 LANDA ST. NEW BRAUNFELS, TX. 78130512/620-4916 FAX 512/629/2161 BEVIL & CHUNNAttorneys At Law PERSONAL INJURY ACCIDENT CIVIL TRIAL LAW 625-9117 389 S. Seguin St. New Braunfels (Across from the Civic Center Not Certified By Texas Board of Legal SpecializationWilliam Schroeder Attorney at Law 267 West Mill St.625-7381 SANDRA D. SARRAN FULLY LICENSED BY TEXAS SUPREME COURT UNITED STATES DISTRICT COURT FOR WESTERN DISTRICT AND FIFTH CIRCUIT COURT OF APPEALS (NO CHARGE FOR INITIAL CONSULT ATHX!)1-512-899-4585 Hwy 2(73 STARTZVILLE » I ;