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Our Latest Blog Entry
March 15, 2022
"The Shocking Truth about Who Gets Your Kids, Your House, Car, and Money When You Die" By: TaQuita M. Hogan-Claiborne, Esq.
It’s the law. If you die without a will, your house, your car, your kids, your money and everything else you own will go where you may not want it.
What does that mean? That your wife or husband may not get everything or may not get anything! Or that your kids may compete with your parents for your property. Or that the State of Texas, instead of your favorite charity, may get it all.
If your children are small (and your spouse has passed before you), the State will choose their guardian. And what if you don’t want a child or a cousin (yes, it can happen) to get what you’ve taken years to achieve? It’s too bad-there’s nothing you can do!
What else can happen when you don’t have a will? A real mess! Bad feelings between your spouse and your kids. Or between your spouse and your parents. A “will” that you never wrote may “suddenly” appear, making your family miserable-but some lawyers very happy.
I know thinking about a will is upsetting. It means admitting we won’t be around forever, accepting we are mortals. Death affects us in many ways. It never is timely. Death confronts the family with bereavement, with the need to readjust emotionally and financially, and often with an unknown future. This is why many people put off making a will, sometimes until it’s too late. But, by then it’s no longer up to them.
If you own anything-a car, a house, bank accounts or jewelry-and care about your family-you should have a will.
Let me begin with an explanation of what happens to the property of a person in Texas who has a will at the time of their death. That person, through his or her will, have left evidence of how he or she wishes his or her estate to be distributed, and will have named an “executor,” a person designated to be in charge of carrying out those wishes. In a process known as an “independent administration,” the executor will attend a short hearing at the probate court to “prove up “ the will, accomplished by showing the court the will document and answering some basic questions. They will then receive “letters testamentary” that allow them to manipulate the estate holding so that they may gather the assets of the estate, pay the debts of the estate, and distribute the remainder in the manner detained in the will. Finally, the executor will file an “inventory” detailing their activities. This is a simplified version of the probate process, but these are essentially the steps involved. If the estate is complicated, the estate can reasonably compensate the executor for their time and expenses.
Now, I know you are wondering what happens to your property if you die without a will?
Well, let me break it down for you. When someone dies without a will, the state of Texas has a form of will for him or her. In a process know as “dependent administration,” Texas statutes and laws determine how such estate will be distributed. Thereby, if you have not left instructions on how you want your estate distributed and who will administer or supervise that process, the probate court will supervise the process. Each step of the gathering of assets, payment of debts, distribution of remaining assets, and other details of administration of the estate will need to be formally presented for the judge’s approval. This could incur costs to the estate in the administrative process and the delays in distributing the estate proceeds to the children and heirs.
Or if he has surviving family members, someone must assume responsibility of administering and distributing without any instructions or directions and with little or no regard to the deceased wishes.
I know I know. Now, you are wondering why should you bother?
Let me tell you why…
1. You have minor children.
You should write a will in order to appoint guardians for your minor children, and trustees to manage their property. If you do not leave a will, the court may appoint a guardian whom you would not have chosen. (Upon the death of only one parent, the surviving parent obviously continues as the natural guardian, so the problem only arises if both parents die in a common accident, or if one parent has already died.) Or one of your family members may chose to take over your property and refuse to implement a fair division between your children and any of your other family members.
You also need to write a will in order to prevent minor children from inheriting real estate outright. Although minors have the legal capacity to own property, they do not have legal capacity to manage it, if your children inherit a share of your house, your spouse would not be able to sell it, rent it out, or even refinance the mortgage without a court order. Getting court orders are expensive and time consuming.
2. You have no children.
You might be surprised that your spouse might not inherit everything. If you and your spouse have no children, your parents or siblings might inherit part of your home and become co-owners with your spouse. Your spouse would not be able to sell the house or other property without their permission, and vice versa. With a will, if you want to remember your parents or siblings, it is best to leave them specific pieces of property that they will not have to share with your spouse. A will can accomplish this.
3. A will protects your spouse.
Most people assume that, if a husband or wife dies, everything goes to the survivor of them. Yes, this is true of community property (jointly owned property; all property acquired during marriage), but in Texas, your children will inherit a two-thirds interest in every item of your separate property (property owned before marriage or acquired during marriage by gift or inheritance). The remaining 1/3 of each item of separate property will go to you spouse, but if the item is real estate, it returns to your children upon the death of your spouse.
If you have children from a previous marriage, those children will inherit your entire half of the community property. Your spouse will keep his/her half of the community property. Your separate property will be distributed the same way as in the previous paragraph.
If you have no children, your spouse will inherit all of your community property. Separate property that is not real estate will also go to your spouse. Separate real estate will go half to your spouse, ¼ to your mother, and ¼ to your father. If either parent is deceased, that parent’s share will be inherited by your siblings if they survive you. If none of your parents or siblings (or their descendants) survives, you, THEN your spouse will inherit all of your separate real estate.
So, if you are married and want your spouse to own everything after your death, it is usually a good idea to have a will that says that and avoid any possible confusion or surprise.
4. You have a pretty large family.
All of your heirs will become co-owners of every asset your own, and will have to manage all the property together. They may not live in the same state, or they may not be able to agree on what should be done with the property. The more heirs you have, the more money and effort they will have to spend trying to get organized. Someone always take more or receive less that attended. With a will, you could leave specific assets to specific heirs, or put one heir in charge as trustee for the others. Either way, writing a will would save your heirs significant hassle and expense. It could also prevent major feuding.
5. You are not married (this includes being widowed or divorce).
Your children will inherit all of your property equally. If any child has died before you, his share will go to his children. If he has no children, it will go to your surviving children. If a child of a deceased child is also deceased but has left a child of his own (your great-grandchild), that great-grandchild will get its parent’s share of your estate, and so on.
If you have no children, your father will inherit half of your property, and your mother will inherit the other half. If either parent is deceased, your siblings will inherit that parent’s share. If a sibling is deceased but has left a child (your niece or nephew), that child will inherit its parent’s share, and so on. If a sibling is deceases and has left no children, the surviving siblings will take that sibling’s share. If neither of your parents nor any of their descendants survives you, your grandparents will inherit your estate equally. If either grandparent has died before you, their descendants (your aunts, uncles, and cousins) will inherit your estate.
6. None of the above.
Even if you do not think you need a will, you should still consider estate planning to draw up powers of attorney for health care and financial matters. If you became incapacitated by illness or accident, a power of attorney will be critical to allow a friend or loved one to pay your bills and make health care decisions for you. These simple documents not only save money later, but they give you the security of knowing things will be taken care of in your absence.
It is only fair to explain to you when a will does not help?
There are some situations in which having a will won’t necessarily change anything. A will only controls the assets in your name that are part of your estate, and there are many types of assets which are not part of your estate and do not pass under a will. For example, life insurance, annuities, retirement benefits, and individual retirement accounts are usually payable to a named beneficiary, so they are not part of the estate and are not controlled by the will. Also, property owned by a husband and wife as tenants by the entireties, or by one or more persons as joint tenants with rights of survivorship, automatically passes to the surviving owner, regardless of what is said in a will. If all of your assets are jointly owned with your husband or wife, life insurance, and retirement benefits, a will may not be needed if your husband or wife survives you, but may be needed if you both die together.
You may benefit more into looking into other estate planning devices such as living wills, living trusts, or other devices specifically tailored to suit your needs.
If a will is not properly executed, it may not be upheld in court. A will that is not upheld or proved in court is denied probate. In this event, the decedent’s property passes to his or her heirs as if he or she died without a will. I personally witnessed such an event when my father passed away. The court ruled that part of his will was invalid because it did not meet all the basic requirements of a properly executed holographic (handwritten) will. Also, his unadvised decision to appoint two executrixes of his estate caused confusion and family feuds among his children and siblings. Only a very small percentage of the things he requested were ever implemented according to his handwritten will. Again, this further emphasizes how important it is to execute a will that meets all legal requirements so that property will pass as you wish.
What does all this really mean? You know, I am glad you asked.
You need an estate plan! A properly prepared plan that meets your goals. It allows you to plan for your disability and direct the distribution of your property. It saves tax dollars, professional fees and court costs. And, most importantly, it keeps you in control of your own affairs. A properly designed estate plan can… provide instructions for your care and that of your loved ones in the event of your disability. Be effective if you move to or own property in another state. Avoid probate and its associated legal costs. Keep your affairs private and confidential. Control all your property, including pensions and life insurance. Allow you to leave explicit instructions for the care of your love ones. Create protective trusts for your young children, disadvantaged children, adult children, and grandchildren.
So, why am I willing to invest my time, effort and money in helping you?
I still hurt after what occurred to my father. All that time and effort he put into trying to protect his estate that he worked many years, diminished just within a couple of months. None of that would have happened if my father had the information and advice I am willing to provide you. Thereby, my goal is to make sure that none of my family, friends and love ones ever has to go through what my siblings, aunts, and uncles, and I went through after my own father’s untimely death. Also, I know if you can benefit from instituting a will and other estate planning instruments and the protection each provide, you’ll do it with me—assuming I have done a good job of explaining everything to you. Maybe you do not want it immediately, but chances are you will sooner of later. So that’s why I am willing to invest in you first.
What all this really means to you is that I am offering my services for you to receive a “no obligation” education and evaluation of your estate which includes a FREE Estate Planning Kit (checklists, questionnaires, forms, etc.) for you to use to personally evaluate your current situation, understand your options, and plan your future.
And, as a special incentive for you to act now, I will provide you a “$250 Estate Planning Discount!” All you have to do is to call me at 281.340.2054 and schedule an appointment for the FREE evaluation and let me know you want your “$250 Estate Planning Discount".
Call Now, this way you will get the protection you need so you and your loved ones can have the peace of mind you deserve.
I look forward to speaking with you.
P.S. Maybe you are considering my complete “Estate Plan Package” for a just a nominal fee, just let me know! This package includes your Estate Plan Kit (checklists, questionnaires, forms), Last Will and Testament, Living Will, Self Prove Affidavit, Health/Medical Power of Attorney (Proxy), Trusts, Schedule of Assets, Insurance/Pension Data, Document Locator Form, Notification List, and Funeral Requests, and much more.
CALL US (281)340-2054
Our Blog: Legal Analyze - THIS (Analysis)
An ongoing series of informational entries...
Welcome to the Law Office of TaQuita M. Hogan-Claiborne's Blog (Legal Analyze - THIS [Analysis]), an informative online forum designed to share legal topics and issues. Like the Law Office of TaQuita M. Hogan-Claiborne, itself, our blog is a place for discovery, insight, and fun!
Stop by periodically– we shall gather stories, topics, reflections, and more to offer our readers access to intriguing legal issues.
Visit us often to read notes from the field of law, browse our photos and videos, hear the latest about such legal topics as immigration, wills & probate, contracts law, and more.
Blog postings shall be made by me, TaQuita in which I will share my passion for the field of law and my passion for teaching the law. Check out Our Blog Here!
And of course, we want to hear your comments. We hope you’ll enjoy our new community designed to promote education and pique your curiosity about the legal world around us.
Very Truly Yours,
TaQuita M. Hogan-Claiborne
Attorney at Law
Our Second Blog Entry
February 14, 2022
By: TaQuita M. Hogan-Claiborne, Esq.
No immigration client of mine shall be “CATFISHED”!
In immigration, “Catfished” is not a new concept. This is when parties set-up false social network or dating profiles for deceptive or fraudulent purposes. We have been working for many years with the Dept. of Homeland Security to make sure that our K1 Fiancé Visa clients do not face such challenges.
So let’s say… you tried your luck with online dating or that you traveled to an exotic country and you found the love of your life.
Now, what can you do if you are a U.S. citizen and now you are engaged, but the person you are engaged to (your fiancé is not a U.S. citizen? Wait a minute…not only is your fiancé not an U.S. citizen but he/she also lives outside the U.S. And you plan to get married in the U.S!
Don’t worry…. U.S. Citizenship and Immigration Services (USCIS) has a solution.
You can obtain a fiancé visa for him/her.
What is a Fiancé Visa?
The K1 fiancé is a nonimmigrant visa that entitles the foreign partner of a US citizen to enter the U.S. to marry the US citizen.
So what do we do? How do we apply for a fiancé(e) visa?
It is a multi-step procedure:
Step 1: First, you, as U.S. citizen fiancé submits a fiancé visa petition to U.S. Citizenship and Immigration Services (USCIS). This is done on Form I-129F, along with various documents. (Alert: Please do not confuse it with Form I-129, which is used by employers petitioning for workers).
---Here’s your “Anti-Catfished” protection….
In addition to filling out the form, you, the petitioner must prepare various documents, for example proving your U.S. citizenship status and the fact that you two have met IN PERSON within the last two years.
What do I have to prove in the I-129F Fiancé(e) Petition?
The I-129F petition must establish four things:
• That the sponsoring fiancé is a U.S. citizen;
• That both individuals are legally free to marry and that the marriage is legally possible in the state where the couple intends to wed;
(Note: The USCIS guidance on marriages involving a transgender spouse specifically says that if you live in a state that will not recognize your marriage you will receive a Notice of Intent to Deny at which point you will have the opportunity to submit an affidavit explaining your intention to marry a state which will respect your marriage. Additional procedures may apply to same-sex relationships.)
• That the couple has personally seen one another within the last two years, and
• That the couple’s relationship is real (bona fide) and that they intend to marry for reasons beyond just obtaining a green card.
Step 2: Once this petition is approved, it will be sent to a USCIS service center, which will then direct the petition to the U.S. embassy or consulate with jurisdiction over the foreign national partner.
Step 3: The embassy or consulate will send a detailed “Instruction Package” and information for setting up an interview to determine the foreign national partner’s eligibility for the visa. We complete the package, while the foreign fiancé sees a doctor (one approved by the U.S. consulate) to get a medical exam report, and then he/she presents everything to a U.S. consulate in his/her home country. At the embassy or consulate, the foreign partner attends an interview and hopefully receives his/her K-1 fiancé visa. If approved, the foreign national fiancé will receive a visa and must enter the U.S. within 6 months and marry within 90 days of that entry.
What kind of documents can be submitted to prove the good faith nature (bona fides) of the relationship? More “Anti-Catfished” Precautions!
You should be prepared to submit affidavits from each partner, discussing how and when you met and evidencing your intent to marry within 90 days of the foreign partner’s entry; photographs of the two of you together; letters or emails that you’ve sent one another over the course of your relationship; letters of support from family or friends who can attest to the bona fide nature of your relationship; travel itineraries or tickets showing that you’ve visited one another; any powers of attorney, wills, insurance policies in which one partner lists the other as a beneficiary; evidence of any shared financial accounts or obligations, etc. The idea is to submit whatever documents you have that would lead someone to conclude that the two of you are in a real relationship.
How long will it take before my partner will be able to travel to the U.S. on a fiancé(e) visa?
Processing times vary based on a number of factors and are especially dependent on the individual embassy or consulate that will be handling the petition. Generally, however, it can take between 8-11 months from the time that an I-129F petition is filed before the foreign national partner is issued a visa to enter the U.S. This includes 5-6 months for the processing of the I-129F itself and another 1-2 months for the embassy or consulate to establish contact with the foreign national partner. From that point on, much is dependent on the foreign national’s ability to gather the materials requested by the embassy or consulate that will need to be submitted before an interview is scheduled.
What do we need to do after my partner arrives in the U.S.?
You must get married! The marriage must take place within 90 days of the foreign fiancé entering the U.S. If the marriage does not take place within 90 days or the foreign fiancé marries someone other than you, the US Citizen who petitioned him/her, your fiancé will be required to leave the U.S. It is NOT possible to extend the fiancé visa beyond original 90 days duration.
Once married, the foreign spouse can then apply for adjustment of status to become a permanent resident (green card-holder). This is the Adjustment of Status process which will allow the foreign spouse to live and work permanently in the U.S. (This process involves even more paperwork than the fiancé visa did!)
If your fiancé does not want to become a permanent resident after marriage, your fiancé (now your spouse) must leave the U.S. within the original 90 days duration!
Here are some additional benefits…. He/she may also file the application for employment authorization.
Also, K1 visa holders can get a social security number. If you applied for a social security number before marriage, you can go back to the social security office after marriage to get your name changed in the social security card. The social security card will be marked "VALID FOR ONLY WITH USCIS AUTHORIZATION". That means, you need to get EAD first before you can actually work.
Note: In rare instances, some couples may have to attend a fraud interview if the government has any doubts whether the intended marriage is a real one. This could happen either as part of Step One or after Step Three.
May we travel outside the US?
The fiancé visa (K1/K2) allows a fiancé to enter the U.S. only once. If he/she leaves the U.S. after entering on a fiancé visa, he/she may not re-enter on the same visa and will need a new visa.
After getting married and after filing an ADJUSTMENT OF STATUS, if he/she wants to leave and re-enter the U.S., he/she must apply for ADVANCE PAROLE to return to the U.S.
As you can see, with these several checks and balances in place, it is almost impossible for a fiancé via K1 applicant to be “CATFISHED”.
“CATFISHED”… No Sir –-not on my watch!
Our First Blog Entry
January 15, 2022
"The Story of Intestacy"
By: TaQuita M. Hogan-Claiborne
If a person dies without a valid will, he dies intestate. The distribution of his estate will be by state statute.
Let’s cover some vocabulary.
KINDRED, OR KIN means people who are related to one another by blood.
Being related by blood in this way is called CONSANGUINITY.
The other way of being related is by AFFINITY, which refers to persons related by marriage. Such as in-laws and step relatives (stepchildren and stepparents).
General Rule: Those related to the decedent by affinity are NOT entitled to a portion of the decedent’s estate under the laws of intestacy.
Surviving spouse --the decedent’s surviving spouse always take first under the laws of succession.
Adopted children--considered as blood relatives of the adopting parents. The adoptive child will inherit from the adoptive parent as if he or she was the natural-born child of his or her adoptive parents.
Illegitimate Children or Nonmarital Children – this is a child born to parents who are not married to each other.
Here’s the general rule about children: Child has the right to inherit from and through the child’s mother.
In 1977, it was established that a nonmarital child has a constitutional right to inherit from father. (Trimble v. Gordon).
What about HALF BLOODs? These are children that have the same mother or the same father but not both parents. The same rule applies to these children.
What about PRETERMITTED CHILDREN? These are children omitted in a will by a parent.
Let’s discuss this in a little more detail. If a parent unintentionally does not mention a child or make a provision for a child in the will, and the child was either living at the date of the will’s execution or was born thereafter, a statute may provide that the child shall receive a share in the estate as though the parent testator had died intestate.
There are two exception(s):
1. It is apparent from the will that the child was intentionally omitted.
2. The parent has 1 or more children at the time the will was executed but left all or more of the estate to the other parent of the pretermitted child.
Here are some additional terms.
LINEAL – means a person who is related to the decedent either up or down the bloodline.
ASCENDANTS (ancestors) – those relative who go up the blood line.
These relatives will be designated with some form of the word parent: parent, grandparent, and great-grandparent.
DESCENDANTS – the relatives who are down the bloodline from the decedent.
These relatives will be designated with some form of the word child: children, grandchildren, great grandchildren.
Both sets are examples of LINEAL CONSANGUINITY because they are related in a direct up and down line to each other.
COLLATERAL relative – a person who is kin to someone because he or she has a common ancestor with that person. Who would you define as COLLATERAL? This would be your siblings, your aunts, uncles, cousins, niece, and nephew.
Here’s the General Rule for Intestate Succession for Lineal Consanguinity.
1. The decedent’s property goes first to the surviving spouse, if there is one, and to the children.
2. Only the issue, or lineal descendants, closest to the decedent inherit.
3. The heirs must survive the decedent in order to take anything.
There are two Methods of Distribution.
1. Per capita
2. Per stirpes
PER CAPITA mean by head. You count the heads, or the people at the top or head of each line of descent going away from the decedent.
PER STIRPES means (Sometimes called by REPRESENTATION), by the roots. Each heir or group of heirs takes the share to which its deceased parent would have been entitled to have.
There is a method of determining which collaterals may inherit. There actually are two methods.
CIVIL LAW COMPUTATION – this method gives the decedent’s property to the heir who is related to the decedent in the lowest degree. In order to determine the degree, you would count up from the decedent to the closest common ancestor, and then count down to the heir.
COMMON LAW METHOD – requires going to the nearest common ancestor and then beginning the count. The heir with the highest, not the lowest count is the one who inherits.
What if there are no heirs?
When there are no other heirs, the State of Texas will step in and be your heir. The property would then ESCHEAT to the state. In most cases, the state will hold the property until a relative steps forward and claims it. I would suggest you check www.claimittexas.org for any unclaimed property for you or any of your relatives.
An ongoing series of informational entries
Our Latest Blog Entry
October 25, 2022
"Coming to America: How Can I Live and Work in US?"
By: TaQuita M. Hogan-Claiborne
U.S. Immigrations provides several options for an individual and/or his or family to legally reside and work in the U.S. Since there are so many possibilities, I am going to begin by summarizing the many options. Once you see all of the possibilities, it can help you decide which option will work best for you.
The two main categories are the following: permanent residence visas (also called “immigrant visas” or “green cards” and temporary residence visas (also called “nonimmigrant visas”.
1. PERMANENT RESIDENT VISAS (GREEN CARDS)
A Green Card holder (permanent resident) is someone who has been granted authorization to live and work in the United States on a permanent basis. As a permanent resident, U.S. Citizenship and Immigration Services (USCIS) grants a person a permanent resident card, commonly called a "Green Card."
You can become a permanent resident several different ways.
a) Family sponsored green cards
b) Employment based green cards
c) Green card lottery (diversity green card), and
d) Political Asylum.
a) To qualify for a family sponsored green card, you must have a very close relative who is a U.S. citizen or permanent resident (green card holder). Who does the U.S. Immigration define as your close relatives? This list includes husbands and wives of U.S. citizens, parents of U.S. citizens, and children under the age of 21 of U.S. citizens (including step-children). This category usually takes top priority over other family categories and in most cases can qualify for a green card relatively quickly.
Other family members, such as husbands and wives of permanent residents, children over the age of 21 of U.S. citizens and permanent residents, and brothers and sisters of U.S. citizens can also qualify for family sponsored green cards. But, these family members must wait for a green card to be available (there are long waiting lists), which can take anywhere from five to 15 years!
b) Employment based green cards are another option as well. There are five types:
EB-1: for aliens with extraordinary ability, outstanding professors and researchers, or multinational business managers and executives.
EB-2: for aliens with exceptional ability or aliens with advanced degrees (employer/sponsor required)
EB-3: for professional workers (with university degree), skilled workers and unskilled workers (employer/sponsor required)
EB-4: for religious workers
EB-5: for aliens who invest $1 million and create 10 new full time jobs (in limited situations, an investment of $500,000 and the creation of 5 new jobs is acceptable).
Processing times for employment based green card vary widely. An EB-1 or EB-5 application can be approved in less than 1 year. However, an EB-3 application could take more than 5 years.
c) The green card lottery (diversity green card) is a government program designed to increase immigration from countries that do not produce a large number of immigrants to the U.S. There are a certain number of countries that are elible for the lottery. Thereby, only people born in those certain countries can qualify. The program is designed to exclude any country that sends more than 50,000 immigrants to the US (for example, people born in Brazil, Canada, China (Mainland-Born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam cannot participate).
Each year the government selects 100,000 winners for 50,000-55,000 green cards. The green card lottery usually is between October and December.
d) Yet, another possible way to qualify for a green card is to submit an application for political asylum or refugee status. To qualify, an applicant must prove he or she has been persecuted in the past or has a well founded fear of persecution in his or her home country based on race, religion, nationality, political opinion or membership in a particular social group. Asylum applicants may apply for asylum even if he or she entered the U.S. illegally or if he or she is in the U.S. on an expired visa/I-94.
Generally, asylum applicants must apply for asylum within one year of their arrival in the U.S. but there are several exceptions which will allow the filing of an asylum application after one year.
2. TEMPORARY VISAS
If you only wish to stay in the temporarily, you have several options as well. There are 20 plus different kinds of temporary visas. Here is a list of the some of the most common temporary visas:
B-1/B-2 Visitor Visas, which permit a visitor to remain in the U.S. for up to six month (employment is not permitted).
E-2 Treaty Investor Visas, which permit investors from certain countries to invest a substantial amount of money and acquire a controlling interest in an active U.S. business. The visa is issued for up to five years and is renewable. The investor can work in his or her own business. The spouse can qualify for an unrestricted temporary work card. Children up to the age of 21 can accompany the parents and attend school, but cannot work.
F-1 Student Visas, which permit foreign students to attend U.S. educational institutions. Limited employment is permitted in some cases.
H-1B Visas for Workers in Specialty Occupations, which permit employment of professional level workers by a sponsoring employer. The visa is issued for up to three years and can be renewed another three years (additional renewals are possible in some cases).
J-1 Visas for Participants in Exchange Programs, which permit business trainees to come to the U.S. to learn about an occupation or profession for up to 18 months.
K-1 Visas for a Fiancé(e) of a U.S. citizen.
K-3 Visas for a Spouse of a U.S. citizen.
L-1 Visas for Multinational Managers, Executives and Specialized Knowledge employees who are being transferred to the U.S. by a related international company.
O-1 Visas for Aliens with Extraordinary Ability who are seeking temporary employment. This visa is issued for up to three years and can be renewed in one year increments.
P-1 Visas for Internationally Recognized Entertainment Groups and Athletes.
R-1 Visas for Religious Workers who are being transferred to the U.S. by a related international church.
TN Visas for certain professional workers from Mexico and Canada. This visa is issued for one year and can be renewed in one year increments.
As you can see, your options may be plentiful. Nevertheless, each category requires strategic planning, patience, and a solid understanding of the U.S. Immigration laws.
Our Second Blog Entry
February 14, 2018
Property is defined as anything that can be owned.
There are two categories of property:
1. REAL PROPERTY
2. PERSONAL PROPERTY
Real Property, which is property that is immovable, land and things permanently attached to the land. The ownership of real property is transferred from one person to another by a DEED, in which the seller of the land is referred to and the GRANTOR and the buyer is the GRANTEE.
Personal Property, which is property that is not land or attached to land. Personal property may be classified into two categories.
1. TANGIBLE – you can touch it (car, furniture, etc.)
2. INTANGIBLE – you cannot touch it (stock certificate, promissory note)
Tangible things have a “face” value. Example, a car’s value comes from the fact that it is a car (make/model). Intangible things are inherently worth very little, like a piece of paper, but they represent something much more significant. (stock certificate, $10 bill, promissory note, etc.)
Why is this important? There may be some items on the land or realty that become attached but still are not considered a part of the realty.
How would you define a 1970 Sedan that has remained parked on your neighbor's front lawn for 10 years? We will address this a little later.
FIXTURES: Now you could take something that is moveable, is not attached to land, like a dishwasher, or a rosebush in a pot, and attach it to the land. That would change its character from personal to real. An object whose character has been changed in this way is a FIXTURE, and once the fixture has been attached to the land it usually becomes part of the realty. However, if you are renting an apartment and you install a ceiling fan, doe the ceiling fan become owned by the owner of the apartment building?
The law uses a three-way test to determine if the fan is now part of the real estate. These are annexation, adaptation and intention.
1. ANNEXATION asks to question, how is it attached? Is it meant to be permanent? Nailing something to the wall is a lot different than scotch taping it.
2. ADAPTATION asks the question, was this item of person property modified to fit in this particular space, like the wooden shelves cut a certain length to fit in a built-in bookcase.
3. INTENTION asks the question, what did the person installing the item intend? If the owner of the apartment installed the ceiling fan, clearly he intended the fan to be a permanent part of the apartment. IF it was the tenant installed the fan, however, he probably meant for the fan to be temporary.
If the answers to these three questions show that the item of personal property was permanently attached, then it’s now part of the real property.
The law divides property into two categories for the purpose of inheritance:
Probate and non-probate
PROBATE ASSETS are those items of real and personal property that can be passed to another person either by will or by the laws of intestacy. While NON-PROBATE assets are those items of property that transfer to someone else at the death of the decedent, by some law other than the laws of inheritance. In fact, non-probate assets cannot be transferred by will or inheritance.
One thing that determines whether an item of property is a probate or non-probate asset is how that asset is owned. In other words, it is important to determine how title to the property is held.
Let’s review the various ways a piece of property can be owned:
1. IN SEVERALTY – owned by 1 person
The sole owner of the property owns all the rights, privileges and interests that go with that property.
2. CONCURRENT OWNERSHIP – owned by more than 1 person at the same time
There are several types of concurrent ownership:
a. joint tenancy
b. tenancy in common
c. tenancy by the entirety
d. community property
e. tenancy in partnership
(a) JOINT TENANCY
In joint tenancy, two or more people acquire interests in one piece of property. The unique thing about joint tenancy is that ownership carried with it the right of survivorship, which means that when one of the joint tenants dies, his share does not go to his heirs or beneficiaries. Rather, his interest goes to the other surviving joint tenants. While a joint tenant is alive, he can sell or give away his interest in the property, and when he does, the joint tenancy ends as to him. In other words, a Joint Tenant can sever a joint tenancy by conveyance but not by will.
Amy & Bob & Chris & Dave joint tenants
Amy sells to Emily
Bob & Chris & Dave are Joint Tenants as to ¾ of the property and Emily is a Tenant in Common as to the other ¼.
In Texas, persons wishing to be jts must sign a written document in which they recite that they are to be joint tenants with right of survivorship. If you do not do this, you do not have a joint tenancy, but a tenancy in common.
To create a joint tenancy four events must happen:
1. Unity of time – the joint owners acquire their interest in the property at the same time.
2. Unity of title – the joint owners acquired their interest from the same transaction and on the same dealing/or source, the same deed or will.
3. Unity of interest – the joint owners’ interests are identical in nature, extent, and duration.
4. Unity of possession – Each joint owner as an equal right to possession to the whole of the property, but not a right to exclusion of any part. This means that they all constitute a single “person” – “oneness”.
(b) TENANCY IN COMMON:
In a tenancy in common two or more person each owns a fractional share of a single piece of property, but they do not divide the property. Rather, each person owns an undivided fractional share of the whole.
Example: Farmer Brown dies, leaving farm to his two sons, Tom and Ben.
In a tenancy in common, each co-tenant, Tom and Ben has an equal right to possess or utilize all of the property along with the other co-tenants, but other than that, they each own their own interest and can do with it whatever they wish, without the permission of the other co-tenants and without destroying the tenancy in common.
There is no right of survivorship in a tenancy in common; when one co-tenant dies, his interest goes to his heirs, with each of them receiving his proportionate share, and all the heirs become co-tenants.
Example: Ben dies, leaving 8 kids.
Since Ben’s heirs inherited through him, we would say that Ben’s interest in the tenancy in common was a probate asset.
Each of those kids has the right to use all the property and the right to sell his own undivided share of the property.
Suppose one of Ben’s kids decides to build a house on the land.
He has the right to do so, but the house will become co-owned just like the land.
Or suppose one of Ben’s kids sells his interest to his brother ex-wife Sharon. (Note: None of the siblings ever got along with her). Too bad! They cannot prevent the sale. Sharon now has the same right to live in the house that any of the siblings have. Is there any thing they can do? Of, course. What can they do?
DEMAND A PARTITION. A partition is a division of property held in joint tenancy or tenancy in common so that each owner of an interest in the property becomes the sole owner of a separate piece of the property.
(c) TENANCY BY THE ENTIRETY:
This is a type of joint tenancy between husband and wife. Whichever spouse outlive the other becomes the sole owner of the property. The difference between the tenancy by the entirety and a regular joint tenancy is that the husband or wife cannot terminate the tenancy by attempting to sell his or her interest in the property. In fact, neither spouse can mortgage, sell or give the property away whether while alive or by will, without the written consent of the other spouse.
One of the real advantages of this type of ownership is that a creditor who is owed money by one spouse cannot seize the tenancy by the entirety property to satisfy that debt. Exception: only if the debt is a debt of both spouses can the property be seized. So in other words, only death, divorce, mutual agreement, or execution of a joint creditor of BOTH the husband and wife can sever a tenancy by entirety.
In some states, when property is acquired by a married couple the property automatically becomes a tenancy by the entirety. In other states, a written declaration their intention to hold it as a tenancy by the entirety is required.
Texas does not follow either rule, because in Texas we have a different type of co-ownership between husbands and wives . . . COMMUNITY PROPERTY!!!
(d) COMMUNITY PROPERTY:
In this type of ownership, property that a married couple purchase during their marriage is COMMUNITY PROPERTY, considered to be owned ½ by each spouse, no matter whose salary was used to purchase the property.
However, property each spouse owned before the marriage took place, or property either spouse received as a gift or inheritance is SEPARATE PROPERTY, owned only by that one spouse, and the other spouse has not interest in it.
So, if the wife works and the husband does not, the wife’s salary is owned ½ by her and ½ by her husband. The car or house they bought with the salary is owned ½ by her, ½ by him.
Now the rules about the right to sell the community property are a little different. In Texas, each spouse has the sole right to manage or sell that community property which he or she would have owned if single.
Since her salary bought the house, it is subject to her control. It is her SPECIAL community property.
On the other hand, if a couple went in together and each contributed a portion of their salary to the purchase of a house their two special community interests have been COMMINGLED with the result that the property is considered to be MIXED community. Therefore, if they decided to sell the house, both of them must participate; in the transfer of the property.
Now if the wife dies while they still owned the house or car, the husband still owns his ½ of that house or car, no matter who she gives her ½ to in her will.
On the other hand, let’s say the husband possesses a beautiful lake-side view vacation home. If he owned this house before they were married, it is his separate property and his wife owns no part of it. He can sell or give it to someone other than his wife, even if she assisted in the care of the home, or even paid parts of the mortgage on the house. This is because of the INCEPTION OF TITLE RULE, which states that the ownership of the property is determined at the moment the property is initially acquired. So, if you know the history of a piece of property, you can determine if it is separate or community. (Attorney Note: Wife may not own the vacation home, but she does have an interest in it . . . But we will inform her about her rights later, just in case Husband ever tries to divorce her.)
Question: What if you do not know the history of a piece of land? How would you determine if it is separate of community? Texas law says if you cannot tell whether a piece of property is separate or community, you must assume it is community.
Additional type of community property: QUASI-COMMUNITY PROPERTY. Personal property acquired while a couple is living in a non-community property state, and is still owned by them when they move to a community property state is considered to be quasi (or “almost’;) community property. If one of the couple dies while they are living in that community property state, the quasi-community property will be treated as community property for the purposes of determining who inherits it.
That's enough for today...we'll talk more later!
Our First Blog Entry
December 5, 2013
Consider the Children....
Currently, in the U.S. there are many youth who came to the U.S. as children without legal authorization but through no fault of their own. Arriving in the U.S. as a child, they live their whole lives in the U.S. without permission, in most cases, with absolutely no connection with their home country.
Therefore, they remain in the U.S., earn an education, seek to go to college, or to join the U.S. military services.
What can they do to become legalize?
One option: In 2012, President Obama implemented a new policy labeled Consideration of Deferred Action for Childhood Arrivals that provides possible assistance for these young adults.
In order to qualify, the undocumented immigrants must be between the ages of 16 and 30 who have been in the country for at least 5 years from 6/15/12 (and meet other requirements) to obtain a temporary legal status and a work permit.
This privilege does NOT come easy. Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action. Individuals will not be eligible if they are not currently in the United States and cannot prove that they have been physically present in the United States for a continuous period of not less than 5 years immediately preceding today’s date.
So, let’s clarify it once again…who does this benefit? The undocumented aliens under age 30 who were brought here illegally at a young age AND have lived in the United States for at least five consecutive years, currently in school or are high school graduates or military veterans.
Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal.
They will also obtain a work permit.
Please note that this is NOT the “Dream Act” and does NOT lead to a green card or U.S. citizenship. Yet, the policy will halt the deportations of those in deportation proceedings and will make immune from deportation those who are not in any proceedings.
It is a celebrated step in the right direction and it allows these individuals to live and work in the U.S.
DO YOU QUALIFY FOR DEFERRED ACTION?
Did you come to the United States when you were under the age of 16?
Have you continuously resided in the U.S. since June 15, 2007, up to the present time?
Were you physically present in the U.S. on June 15, 2012 AND on the date of your Deferred Action request?
Were you under the age of 31 on June 15, 2012?
Did you enter without inspection before June 15, 2012, or did your lawful immigration status expire before June 15, 2012?
Are you "currently in school" in the U.S. on the date you submitted the application, or have you graduated from High School, obtained a G.E.D., or been honorably discharged from the U.S. military?*
Have you NOT been convicted of a felony, a significant misdemeanor, multiple misdemeanors, or otherwise pose a threat to national security or public safety?
If you answered YES to all of the above questions, you should qualify to apply for Deferred Status.
Nevertheless, each case shall be handled by DHS on a case-by-case analysis; therefore we would need more details about your specific case in order to determine your options.
WHAT DOCUMENTS SHOULD YOU SUBMIT?
Submit documents that show that you qualify. Examples of records that demonstrate eligibility might include: school records, medical records, vaccination records, financial records, employment records.
A copy of your birth certificate.
A translation into English of your birth certificate with a Certificate of Translation in which the translator shows that he or she has accurately translated the document into English.
An unexpired picture I.D. issued by a government agency (eg., a passport or country I.D., a school I.D.).
If you finished school without graduating, get into a GED course or other qualifying educational course of study. Check out the Texas Education Agency GED website or GED Testing Service website. IF you are enrolled in a GED course, you should meet the "currently in school" requirement.
If you have been arrested, obtain copies of all arrest records, charging documents, dispositions (outcomes), sentencing records.
Where a case was dismissed or where charges were not filed, obtain an "Arrest Disposition Report" showing what happened after the arrest.
If you plead guilty or were found guilty by a judge or jury, obtain certified copies of the charging document (Information), Judgment, sentencing, and other documents about the conviction.
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