ProDoc Texas Herald August 2007 Legislative Updates and Other Changes

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1 ProDoc Texas Herald August 2007 Legislative Updates and Other Changes Lipman s Wills and Trusts 1. Certification of Trust Forms for Revocable Trusts The Certificate of Trust forms that can be drafted in association with the Revocable Trust forms have been renamed and modified. Each of these forms is now known as a Certification of Trust, and the wording of each of the forms has been modified to satisfy the requirements of new Texas Property Code Section This new statute states that a Certification of Trust can now be provided instead of a copy of the entire trust instrument. 2. Certification of Trust Forms for Irrevocable Trusts 38 new Certification of Trust forms have been created, one for each of the irrevocable trust agreements. The wording of each of the forms has been modified to satisfy the requirements of new Texas Property Code Section This new statute states that a Certification of Trust can now be provided instead of a copy of the entire trust instrument. Each of the transmittal letters has been modified as well to add text regarding the new Certification forms. 3. Do Not Resuscitate Forms DNR forms have been added as graphic forms. You have the option of typing in the client s name when drafting these forms. The rest of the information must be filled in by hand when the form is signed. 4. Preliminary Information Forms The preliminary information forms have been completely revised and updated as graphic forms. 5. Attorney Fact Finders The attorney fact finder forms have been completely revised and updated, also as graphic forms. In addition, a new Fact Finder form has been added for use with your domestic partner clients. 6. Section 142 Trust Changes A number of changes to the Section 142 Trust, the Application to Establish Section 142 Trust, and Order Establishing Section 142 Trust have been made due to changes made by the Texas legislature to Section 142 of the Texas Property Code. In particular, pursuant to new Texas Property Code Section (o), a Section 142 Trust can be created for: (A) a minor or incapacitated person who: (i) has no legal guardian; or (ii) is represented by a next friend or an appointed guardian ad litem; or (B) a person with a physical disability. Also, a notice must be printed on the first page of the Trust Agreement, and an individual can serve as trustee (previously, a financial institution was required in all circumstances) if the trust principal is $50,000 or less, or if the value of the trust principal exceeds $50,000, the court may appoint a person other than a financial institution to serve as trustee only if the court finds that (1) no financial institution is willing to serve as trustee, and (2) the appointment is in the beneficiary s best interests. 7. Amending of Revocable Trust by Attorney-in-Fact A new question has been added to all of the Revocable Trust forms allowing you to address the issue of allowing an attorney-in-fact acting under a power of attorney to amend your client s Revocable Trust. You now have the option to allow or disallow this action. ( continued on page 2 ) Bill Overview of the Bill ProDoc Volume/ HB8 HB177 Adds Penal Code Section to the list of sex crimes against children that can be used as a material and substantial change justifying a temporary order, modification of an existing order for the appointment of a conservator or the termination of parental rights. It also requires a defendant convicted of the new crime to register as a sex offender. Amends Section (a) of the Property Code to require that a landlord repair or remedy a condition arising from the failure of the landlord to provide and maintain in good operating condition, a device to provide hot water of at least 120 degrees Fahrenheit. Landlord Tenant 1

2 HB391 HB417 Section 47A permits an interested person to file an application to declare the marriage of the decedent void due to lack of mental capacity with the court in which probate or heirship proceedings for the decedent are pending. Such applications are limited to marriages commenced not earlier than three years before and still in existence on the date of the decedent s death and must be brought within one year of the date of death. In cases where there is an action for annulment based on lack of mental capacity pending on the date of death of one of the parties to the marriage, the court presiding over the probate/heirship proceeding may make a determination and declare the marriage void. Amends Section 128(b) of the Texas Code regarding how nuncupative wills are referenced in muniment of title documents. Adds new description of credible witness for Section 85. Amends filing deadline for disclaimer by charitable organization or government agency for Section 37(A)(h). Replaces neglected to present will with failed to present will in Section 83(c). Amends Section 346 to allow for sale of real property without hearing. Amends Section 761(c) of Texas Code to add new grounds for removal of guardian, and removal without citation or notice. Amends Section 824 (A)(b) to allow sale of real property without hearing. Amends Section 855(B) to allow approval of investment plan without hearing. Changes to language regarding ward s mental incapacity as related to right to vote and ability to drive. Adds condition for expiration of appointment of ad litem. Guardianship ( continued from page 1 ) 8. Schedules to Revocable Trusts You can now add a Schedule listing your client s assets to the Revocable Trust forms. For married clients, you can choose to add up to three schedules, one for community property, one for the husband s separate property, and one for the wife s separate property. 9. Changes to Power of Attorney You now have the option when drafting a power of attorney to have it written either as a Statutory Durable Power of Attorney or as a more conventional General Power of Attorney. If you choose to draft it as a Statutory Durable Power of Attorney, then the power of attorney will be drafted based upon the statutory form found in Texas Code Section 490. If you choose to draft it as a General Power of Attorney, then the same general format of the Statutory Durable Power of Attorney will be followed, except that rather than having the powers listed in short phrases, as is the approach in the statutory form, the text of Texas Code Sections will be added with substantially the same text as that found in the statutes. What We Mean by the term Graphic Forms Mr. Lipman converted several forms in the volume to graphic forms in the update. We use the term graphic forms to describe those kinds of forms that you normally consider to be preprinted forms that you generally fill in by hand or by typewriter. The final output of these forms is in PDF format, not word processor format so you do not edit the final version as you do typical ProDoc documents. 2

3 HB448 HB555 HB564 HB568 HB772 HB1178 HB1303 HB1709 HB1710 Increases the maximum monthly net resources of the obligor from $6,000 to $7,500 to which the child support guidelines can be applied. Completely redefines parenting plans, removes need for settlement of future disputes in temporary orders and makes them optional in final orders regarding children. Redefines parenting coordinator and the duties of the coordinator. Removes requirement of addressing harmful parental conflict and the changing needs of children. Creates a new Certification of Trust which replaces the old Certificate of Trust. The statute allows the Certification of Trust to be provided as an alternative to providing a copy of the entire trust document to a person other than a trust beneficiary. Additionally, a Section 142 Trust can now be created for: (A) a minor or incapacitated person who: (i) has no legal guardian; or (ii) is represented by a next friend or an appointed guardian ad litem; or (B) a person with a physical disability. Changes the requirement that an affidavit of relinquishment contains the addresses of the affiant and the other parent to their county of residence. Changes who is reported on in a social study of the home, changes name of pre-adoption home screening to social study. Changes trial of the charge to case in the waiver of counsel. Adds private entities to those which can be ordered to expunge the records of a defendant. Adds option for time within which bond must be given, and allows for new bond without citation or hearing if bond is insufficient, lost or destroyed. The bill repeals Community Administration (TPC Sec. 151(e), and 161 thru 175), and applies to the estate of a decedent who dies on or after 9/1/07. Child Support Calculator Lipman s Wills and Trusts PowerPack TM Updates We updated the PowerPack based on HB448, HB1864, SB228, and SB303. The Child Support Calculator now calculates the new top monthly income amount of $7,500 for suits filed on, or after, September 1, Additionally, the Child Possession Calendar program now includes the new Christmas and weekend visitation provisions, as appropriate for your case. Finally, we updated the Child Support Calculator files for Palm and Windows Mobile Pocket PC operating systems. For instructions on how to add to or update the files on your PDA go to 3

4 HB1737 HB1864 (1) Certificates of Formation filed after 9/1/2007 (other than limited partnerships) must state the duration as perpetual, a specified term, or a period that expires as of a specified time or date. (2) Removes previously required language in the Certificate of Formation for a Professional Association prohibiting a member of a professional association from dissolving the association independently of other members. (3) Changes delivered to given when referring to a notice of meeting that is mailed or faxed. (4) Changes language to no longer require the advancement of expenses to an officer of the organization. (5) Adds requirement that all filing instruments of an LLC must be signed by an officer, member or manager. (6) Adds requirement that all filing instruments of an LLP must be signed by a general partner. (7) Removes language requiring delivery by hand or registered mail of nonunanimous written consent to principal executive officer within 60 days. (8) The application and charging order are changed to reflect that a charging order constitutes a lien on the judgment debtor s partnership interest rather than giving the creditor rights against the assignee. Allows option of having different pick-up and return times on weekends during the school term and not during the school term if the conservators live within 100 miles of each other. Changes Christmas vacation to end for the first conservator on December 28 th instead of December 26 th. Business Organizations Child Possession Calendar HB1972 Adds new duties for an Attorney Ad Litem HB1995 Changes the time that the notice of appeal can be filed from the third day to the seventh working day. HB2278 HB2501 HB2738 HB3147 Revision of certain Chapters of the Business and Commerce Code -- Assumed Business or Professional Name renumbered from Chapter 36 to Chapter 71. Requires corporations, LPs, LLPs and LLCs to file Certificate of Assumed name in the office of the Secretary of State AND in the office(s) of the county clerk where the entity s registered office (if required) is located and where its principal office or (for foreign corporations) its principal place of business within the state is located. Recharacterizes an appeal of an associate judge s report or proposed order as a request for a de novo hearing of a proposed order or judgment depending upon when suit was filed. Requires the successful bidder at a foreclosure sale to make immediate payment after acceptance by the trustee. Makes minor wording changes to notice to property owner concerning construction defects. Business Organizations Foreclosures 4

5 HB3295 Changes DNA specimens to DNA samples. HB3593 HB3997 SB228 SB300 SB303 SB432 SB593 SB617 Adds additional language regarding deadline for completing a program or counseling. Adds the qualification that the child is over the age of one at the time of the petition to terminate the rights of an unknown alleged father. Also adds the requirement of evidence of a paternity registry search depending upon when filed. Makes the Affidavit of Waiver of Interest in a Child irrevocable and removes requirement of having 2 witnesses to the affidavit. Removes the requirement that child support continues as long as the child is enrolled in an accredited secondary school program. The program no longer needs to be accredited. Adds requirement that child support ends if the child joins the military. Expands the type of electronic communication that could be included in possession orders for children. Revises when a person not a party to a SAPCR may have visitation when a conservator is under military deployment and expands the visitation to be the same visitation as ordered for the conservator. Adds requirement that a request for the identification of a court of jurisdiction has been made in termination cases. Adds that Title IV fees should be included in the priority of payments for child support. Bill changes the duration of a judgment lien in favor of the state from 10 years to 20 years. Changes reasonable cost of health insurance for coverage of a child as an amount not to exceed 9% of the responsible parent s annual resources. Definition of health care expanded to specifically include cash medical support. Deduction for coverage now calculated by dividing the total cost to the obligor for the insurance by the total number of dependents of the obligor. Specifically authorizes withholding from earnings for costs of health insurance or cash medical support ordered. Changes who can bring a suit for annulment of an underage marriage. Language providing for annulment of marriage of person under age 16 is repealed; marriage is considered void if either party is under 16 unless permission for marriage granted by court order. Amends Section 149(C)(a) of Texas Code to reflect new notice requirements and court certificate. Adds a new event at which child support terminates if the child enlists in the armed forces of the United States, the date on which the child begins active service as defined by 10 U.S.C. Section 101. Delinquent Support Calculator Child Support Calculator 5

6 SB699 SB758 SB867 SB1470 SB1483 Nonlegislative change Nonlegislative change All initial pleadings filed in a civil action must contain the last three digits of the parties Social Security number and driver s license number. Adds an adult who has adopted, or is the foster parent of or had petitioned to adopt a sibling of a child to those with standing to adopt. Makes outpatient treatment available for defendants who are found to be not competent to stand trial and makes the reporting requirements the same as for those defendants receiving inpatient treatment. Adds an admonishment that a defendant is not allowed to carry a firearm if convicted of family violence misdemeanor. Notice language required in a citation for eviction, which must be in English and Spanish in conspicuous bold print. Revises the retainer fee language in the contracts to ensure that fees pre-paid by a client were correctly treated as refundable. Based on 2007 In re Estate of Nash, 220 S.W. 3rd 914 (Tex. 2007) added to the definitions in the wills and trusts that a person prohibited by law from inheriting from an estate would be considered to have predeceased the testator or settlor. Foreclosures Guardianship Landlord Tenant Landlord Tenant Attorney Client Business Organizations Small Estate Wills I have been practicing law for over 20 years. My practice is primarily an office practice with an emphasis on real estate. I have been a long time ProDoc user and ProDoc has changed the way I practice law. Instead of spending countless hours updating forms I can concentrate on serving my clients. With ProDoc I have been able to maximize my office s efficiency which benefits my clients, my staff and me. With ProDoc I have not only profited financially, but have profited personally, by gaining more free time for my practice and my life outside of the office. Christopher H. Moore Christopher H. Moore, P.C. Seguin, TX 6

7 Late Additions to This Update These changes came in too late to include in the usual ProDoc Texas Herald. We heard your concerns about performance issues with SOS. You let us know that SOS was too slow especially when you generated your monthly billings. So, we made significant performance improvements to the Billing function in SOS. You will now realize a speed improvement in this function of up to 65% after installing this update. Additionally, you will now be able to use other programs on your computer as it processes the billing and printing-of-reports functions. This enhancement is only an early step of a long-term plan to completely redesign SOS for more functionality, greater speed, a more intuitive interface, and greater usefulness to small law firms. We added the most recent State Bar of Texas update to our 1 volume. The two most significant changes were adding new chapters, Chapters 12 and 26 to this volume. Chapter 12 - Water Rights Conveyancing 12-1 Groundwater Rights Sales Contract 12-2 Groundwater Rights Warranty Deed 12-3 Blanket Easement Agreement for Groundwater Rights 12-4 Easement Location Addendum 12-5 Surface Damage Payment Addendum 12-6 Surface Use Restriction Addendum 12-7 Permit Transfer Request 12-8 Lienholder Consent and Subordination to Easement Agreement 12-9 Partial Release of Lien (Groundwater) Chapter 26 - Restrictive Covenants & Owners Associations 26-1 Declaration of Restrictive Covenants (with Owners Assn) 26-2 Declaration of Restrictive Covenants (without Owners Assn) 26-3 Certificate of Formation of Nonprofit Corporation (Owners Assn) 26-4 Bylaws of Owners Association 26-5 Deed without Warranty (Common Area) 26-6 Management Certificate 26-7 Notice to Purchasers (Houston Deed Restrictions) Notice of Membership in Property Owners Association Required Information Including Resale Certificate 1 This document-assembly system is not a product of the State Bar of Texas and is not endorsed by the state bar. The material in this system is provided by ProDoc, Inc. under a license from the State Bar of Texas, which took no part in producing the system. The license agreement between ProDoc, Inc. and the State Bar of Texas contains specific disclaimers of the State Bar s liability with regard to the system and its contents, to which interested persons should refer. The material in this system is also contained in Texas Forms Manual, published by the State Bar of Texas, and is intended for use in conjunction with those publications. 2 These forms moved from Chapter 29 of the volume.