State laws vary regarding posthumously conceived or pretermitted children. Many states refer to these children as after-born children or unintentionally omitted children. A pretermitted or posthumously conceived child is one that was born after a parent drafted their Will. In many states, these children receive the same inheritance rights as their siblings born after their parents drafted their Wills.

Technically speaking, a posthumously conceived child typically refers to those children conceived after the death of their parents. In most cases, these children were born from embryos frozen while their parents were alive. “Embryo cryopreservation” is the medical term for children born from frozen embryos. Currently, there is very little case or statutory law regarding the rights of posthumously conceived children. A posthumously conceived child is one in which a parent’s egg was fertilized with a parent’s sperm after one parent died. There is a difference between a posthumously conceived child and a posthumously born child. A posthumously born child is one in which parents conceived the child while they were still alive.

Many legal scholars believe that posthumously conceived children should have the same inheritance rights as posthumously born children. In a novel appellate case, the Ninth Circuit Court of Appeals considered a posthumously conceived child’s inheritance rights when the child’s father died of cancer after freezing his sperm. His wife used his sperm after his death and successfully conceived twins. The Ninth Circuit Court of Appeals held that a posthumously conceived child has the same inheritance rights as a posthumously born child.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

Accountants and tax attorneys know some of the best ways to reduce your tax liabilities while you are still living. However, estate planning attorneys may help you simultaneously reduce your tax liabilities while you are still living and after your death. According to the federal Internal Revenue Code, the Internal Revenue Service allows you to make gifts of up to $13,000 without having you pay taxes on those gifts. Furthermore, your recipients will not have to pay federal income taxes on the value of their gifts as long as they do not exceed the federal annual limits. By making gifts while you are still living, you can simultaneously reduce your estate taxes. This means that your heirs can keep more of their inheritances.

As of 2012, each taxpayer can make a lifetime gift of up to $13,000 annually to each recipient. Through the end of 2012, you can also give a lifetime gift of up to $5 million. This $5 million exclusion is in addition to your $13,000 annual tax-free gift allowance to each recipient. By giving your loved ones gifts annually, you can avoid having to pay estate taxes in many cases. Thus, if you would like to help your beloved niece while you are still living, you can give her a cash gift of up to $13,000 each year while you are still living. If you wanted to add your beloved nephew to the list of gift recipients, you can also give him a gift of up to $13,000. The tax laws are subject to change annually so speak with your attorney or accountant about the intricacies of the federal gift tax laws.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

On December 16, 2012, Stephen A. Mendel served as a continuing education instructor on Legal Issues for Texas Architects. Mr. Mendel’s presentation covered Compliance with the Rules & Regulations on the Practice of Architecture, and Complying with the Texas Standards of Professional Conduct. The educational topics included, but were not necessarily limited to, ensuring competence, avoiding reckless and dishonest practice, avoiding conflicts of interest, preventing the unauthorized practice of architecture, how to handle an investigation by the Texas Board of Architectural Examiners, and the disciplinary hearing process.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

In terms of land mass, Texas is larger than five (5) contiguous nations in Western Europe, and larger than thirteen (13) contiguous U.S. states. Texas shares a common boundary with four (4) U.S. states (New Mexico, Oklahoma, Arkansas, and Louisiana), and four (4) Mexican states (Temaulipas, Nuevo Leon, Coahuila, and Chihuahua).

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

Be a presence for good in your community by being friendly, kind, and caring. Greet others with a wave and a cheerful smile. Be thankful for your friends.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

The debate in Washington D.C. regarding the debt ceiling will continue, with ramifications for programs such as Medicaid.

Medicaid was designed to offer financial support to those who need long term care – if, that is, they qualify – meaning they have a certain maximum level of income and assets.  There are “countable” assets, then there are “exempt” assets such as one’s home.

There is a primary budget-cutting stage in Congress that will not affect Medicaid, but the second stage, which has a deadline of December 23, 2011, may see things such as a reduction of eligibility and benefits for Medicaid.

This means that it may be more difficult for elderly to qualify for benefits.  It may also result in lower payments to facilities such as nursing homes – and they’ve already been slammed with more than an 11% reduction.

Joseph Baker, the president of the advocacy group Medicare Rights Center, stated “The future of the programs really hangs in the balance. It could lead to deep cuts and irreversible changes to Medicare and Medicaid that shift costs to beneficiaries.”

With such dramatic battles in Washington, and potential changes that affect the elderly, it’s more important than ever for elders to look into an Estate Planning strategy that may help them qualify for Medicaid.

Using legal Estate Planning tools, for example, there are ethical ways to plan for Medicaid eligibility while preserving your assets.

But one has to plan ahead: it’s very risky, legally, to suddenly transfer one’s assets so as to try to qualify for Medicaid.

It’s very wise, therefore, to consult with an Estate Planning attorney who also has training in Elder Law.  He or she can explain in plain language what your options are.  A consultation could benefit you greatly.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

Whether it’s for you or for your loved ones, managing those endless documents and records that relate to an estate can be quite the challenge.  Most of us don’t like the task, but good record keeping will be a blessing when that day comes: a death; disability; maybe a divorce affecting you or a loved one or a son or daughter.

These days, managing important records and documents can be more difficult than in the past.  With many transactions taking place online today – protected by user names and passwords and strict privacy rules – getting hold of records of a deceased loved one can be a real challenge.

For example, we see many cases where of a wife who has suddenly lost her husband has a hard time accessing account information because the husband handled most of the financial affairs online and he did not share – or make readily available – his login information.

Yet another factor is that there are more Estate Planning options available to us these days such as a Living Trust – meaning other individuals are involved – and these secondary people need to have access to records as well.

Plus, as people get older they tend to lose track of what records they have and where they are.

Yet, record keeping is very important for a smooth transition of an estate.  It can not only save time, but can better protect assets and save on expenses such as court costs if Probate kicks in, especially if matters are contested due to lack of important documents.

So, follow these steps for yourself and for parents and loved ones:

• Put a list together of all financial accounts: banking, stocks, retirement accounts, then gather all account and access information (both offline and online access).
• Gather all titles and deeds.
• Gather any Wills or other Estate Planning documents.
• If you’re acting on behalf of another person, work with them re the above and ensure that a backup person (you, a friend) can access to this information should that person pass away or become disabled.  This is especially important for a single elder.

Here are some of the documents you may or will need:

• Health care directives and / or do-not-resuscitate orders
• Wills
• Trusts
• Powers of Attorney
• Any automatic or recurring banking or credit card transactions
• Retirement accounts including IRAs, 401k, etc.
• Money market or brokerage accounts or bonds
• Insurance policies: disability, life, long term care, etc., whether private or through an employer
• Marriage or divorce papers
• Titles to property, vehicles, etc.
• Discharge papers from the military if applicable
• Any business agreement papers

Yes, it can be a pain doing all this but if you tackle it now rather than later, you’ll sure feel good about it!

And remember, as you gather documents and you realize that some planning or better asset protection is in order, there’s no better person than an attorney trained in Estate Planning to help you plan for your future and that of your heirs.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

Creating a will is the cornerstone of estate planning, don’t underestimate the need for a valid, legal will.  It is necessary, even if you have a living trust, to name an executor for your estate, to name a guardian for any children under the age of 18 and to distribute or ‘pour over’ any property not owned by a living trust.

The popularity of do it yourself will kits and forms has increased over the past decade, but there are four things that may be missing from this estate planning document that can make a big difference on how smoothly your estate is ‘settled.’

Successor Executors and Guardians

Naming an executor and a guardian is an important part of drafting a will, but what happens if these people are unwilling, unable or even unavailable to serve in that capacity?  Naming a backup, or successor, is critical to keeping these choices within your control.

Bond Waivers

Many probate courts require the executor of an estate to post a bond to ensure the estate and its assets are protected and debts are paid.  Without a will that explicitly waives the need for a probate bond, courts may mandate their purchase, meaning more time and expense for your executor.

Contingent Beneficiaries

Unfortunately, wills aren’t updated as often as they should be.  Life changes, and your estate planning documents should change with it.  A will should have ‘backup’ beneficiaries in case one or more of your named beneficiaries has since passed away.

Self Proving Affidavits

A will needs to be properly witnessed by at least two parties.  A self proving affidavit is an attached document signed by a notary public that shows the will was properly signed and witnessed and that it is the will of the person who signed it. Many states accept these affidavits in lieu of actual witness testimony, and it avoids the time and expense of the executor having to track down the witnesses.

An estate planning attorney can help you create a will that not only has all of the aspects that help your loved ones get through the administration of your estate, but work with you on other estate planning tools that can help meet your needs.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.

The Texas Legislature recently passed two important laws. The first law requires the Texas Supreme Court to adopt rules that provide for the dismissal of cases that have no basis in law or fact. This is a significant step for Texas because it brings Texas more in line with the federal courts who have had such a rule for years.

The second law is known as the “Loser Pays” law. Under this law, the Texas Supreme Court is required to adopt rules for the award of attorneys’ fees to the prevailing party in any civil proceeding. As you can probably imagine, the law provides that the State of Texas and other governmental agencies are exempt from the Loser Pay law.

The Mendel Law Firm, L.P. is a member of the American Academy of Estate Planning Attorneys.