EXPUNCTION OF CRIMINAL RECORDS
I. What is an Expunction of Criminal Records?
If you are charged with a criminal offense and are cleared of that offense then you likely will be able to erase the records of that charge. If the court agrees to expunge your records then it will order state agencies to destroy all files, arrest records and records of the prosecution. The court also will order law enforcement agencies to destroy jail records, police reports, prosecution reports and court files. After an expunction, you may legally deny that you were ever arrested for or charged with a criminal offense.
II. What Criminal Charges Can Be Expunged in Texas?
Some of the outcomes for criminal cases that can qualify for an expunction are:
Not Guilty Verdicts
Certain Deferred Adjudication Cases
III. How to Obtain an Expunction of Criminal Records
Our attorneys have helped several clients successfully expunge criminal records. The first step is to obtain the records of your charged offense and determine if you are eligible. Once we have determined your eligibility, we will file the appropriate paperwork to begin the expunction process. After the Court grants an expunction, the Order will be sent to the appropriate agencies to ensure that the records of your criminal charge are erased.
IV. What Options are Available if an Expunction is not Possible?
Some people are not able to qualify for an expunction because they plead guilty to an offense. However, if your case meets certain requirements then it is possible to obtain an Order of Non-Disclosure from the Court. An Order of Non-Disclosure is a “sealing” of the records for a criminal offense that prevents most people from seeing the records. A Non-Disclosure is not as powerful as an Expunction, but it is an effective way to limit the exposure of your criminal records.
Please call our office at 817-424-3405 to speak with one of our attorneys, and we will be happy to discuss your options for expunging or sealing your criminal records.
A Will is a legal document that allows a person to gift their estate after death. Nearly everyone has an estate. An estate consists of everything you own at the time of your death, such as your car, home, checking and savings accounts, stocks, securities, life insurance proceeds, and real estate holdings. Your Will allows your family to know your desires and it helps to streamline the probate process.
There are a lot of factors to consider to determine if you actually need a Will. The following list will help you weigh the pros and cons.
If you have a Will . . .
There are several other documents that our Firm always prepares with a Will. They include:
When your child turns 18 years of age, they are deemed to be an adult under Texas law. As such, they will likely need some sort of estate plan. This is particularly true as to medical decisions. Specifically, they may need to authorize their parents to obtain their healthcare information (HIPAA Release) and to make medical decisions (Directive to Physicians (which is also known as a “Living Will“)). This necessity is often overlooked. This causes increased stress because the parents cannot help their child in their time of need. We can assist you in addressing these concerns.
In Texas, there is a growing trend to use Trusts as a part, or in place of, traditional estate planning. While attorney-drafted Trusts can be utilized effectively in a variety of situations, many questions exist for most clients about the nature of Trusts. On this page, we attempt to respond to some of the general questions about Trusts. However, please take advantage of our free consultation so that we can address your specific objectives.
A Trust is a legal entity created by a Grantor by using a valid Trust formation document or agreement. The purpose of a Trust is to transfer some sort of benefit to the designated Beneficiaries.
Trustee: The person designated in the Trust Agreement to take possession of the trust assets and manage those assets. They must also preserve and manage the assets according to the provisions in the Trust agreement.
Trust Agreement: The Trust Agreement is the document that creates the Trust and sets out the provisions related to the Trust. For instance, it will generally designate the trustee, the beneficiaries, and the purposes of the Trust. It will also typically include provisions designed to guide the trustee in fulfilling his duties.
Grantor: The person(s) who creates the Trust Agreement. In order for the Grantor to create a valid trust, he must designate a trustee and a beneficiary. He must also transfer assets into the Trust.
Beneficiary: The Trust Beneficiary is the person(s) who receives the benefit of the assets in the Trust.
Corpus: The property that is transferred by the Grantor to the Trust.
Testamentary Trusts: The concepts of Wills and trusts combine when you consider the creation of a Testamentary Trust. These trusts are created under your Will and will control the management of your assets after your death. These trusts have a wide array of uses, but they are very often used to provide for the management of assets for minors and young children in the event they might become entitled to receive property under a Will.
Revocable Living Trusts: In recent years, the use of Revocable Living Trusts as a substitute to traditional estate planning has exploded in many states. In Texas, however, the uses of these trusts as effective estate planning alternatives have limited usefulness. The effective use of these trusts is discussed, but also we discuss many of the myths and misconceptions related to the uses of these Trusts.
Educational Trusts: One of the primary concerns that many parents and grandparents have is setting aside money to provide for education for their children and grandchildren. In spite of this desire, those same parents and grandparents recognize that the best interests of their children is not served by giving large sums of money to minors or young adults who might rather buy a car than pay for an education. As a result, the use of an Educational Trust becomes a very appropriate option for providing money for education while ensuring a mechanism to make sure the money is used appropriately.
Spendthrift Trusts: Another concern of people creating trusts is that they want the assets of the trust to be protected from the attacks of potential creditors of either the Grantors or the Beneficiaries of the Trust. Spendthrift provisions can be incorporated into a Trust, which will then protect the trust assets from attack.
Irrevocable Life Insurance Trusts: Life insurance policies can very often present estate tax problems for the person who owns the policy. To combat the estate tax complications, the Irrevocable Life Insurance Trust provides an alternative to own a life insurance policy while completely excluding the proceeds from the estate for tax purposes.
For whom are living trusts most appropriate? What are the pros and cons?
For starters, while it is true that probate can be expensive and time-consuming in some other states, in Texas, we have a streamlined system of probate. As long as you hire a lawyer with experience in probate court, you have a well-written Will, and nobody files a lawsuit after your death, then probate is typically not so bad.
The stories you read in the paper may lead you to believe otherwise. The heirs of multi-million dollar estates frequently fight it out in court for a larger inheritance. Also, bookstores carry dozens of books which talk at length about the delays and high costs associated with probate.
Even so, living trusts are useful estate planning tools, and they do have their place in many people’s estate plans. If you find any one of the following benefits appealing, then a living trust may be appropriate for you.
Before you establish a living trust you need to understand the downsides, which include the following:
A Living Trust is a revocable trust created while a person is alive, whereas a Bypass Trust is typically an irrevocable trust created at death. A Bypass Trust can be created by a Living Trust or by a Will. (Yes, a Living Trust can create a Bypass Trust, but a Bypass Trust would never create a Living Trust.)
A Living Trust is simply an ownership arrangement where the property is held in the name of a “trustee” rather than in the name of the person who really owns the property. People almost always create Living Trusts for their own benefit, with the goals of avoiding probate, addressing the possibility of future incapacity, and keeping matters private.
Normally, the person who creates a Living Trust names himself or herself as trustee and as beneficiary. Upon that person’s death, all or a portion of the property that remains in the Living Trust passes according to the terms specified in the trust agreement.
Bypass Trusts are most often created when a spouse dies in order to save taxes when the other spouse passes away. When a married person dies and leaves everything to his or her spouse, that surviving spouse may then be too wealthy to pass everything to their beneficiaries tax-free. Being “too wealthy” typically means the married couple is worth over $11,200,000.00. The Bypass Trust is a way to shelter the first spouse’s $11,200,000.00 exemption from taxation when the surviving spouse dies, thereby doubling the amount that can be left tax-free to $22,400,000.00.
Bypass Trusts do have non-tax benefits though, and for some people, saving taxes is not the motivating factor in creating one. For instance, Bypass Trusts protect the trust property from creditors’ claims, and they allow the deceased spouse to direct where the trust property passes when the other spouse dies.
There are some exceptions to the statements contained in this answer. For instance, Bypass Trusts are not always created at death. Some wealthy people create them during life, and other people use their estate tax exemptions for different purposes rather than the creation of a Bypass Trust. Also, in answering your question, I have assumed that when you said “Living Trust,” you meant the standard type of revocable trust people across the country regularly create and not another unusual type of trust which may be created while someone is living.
A Miller Trust is a written trust agreement that makes it possible for people to obtain Medicaid nursing home coverage even though they actually make too much money to qualify for Medicaid. Importantly, they are not actually called Miller Trusts anymore. Instead, they now go by the name Qualified Income Trusts. While we do not draft these types of Trusts, this information is provided so that you can determine what your specific needs are for your estate plan.
The rule in Texas is that you must have both limited resources and limited income in order to qualify for Medicaid coverage. These are two distinct tests that must be met, and if you don’t satisfy both of them, then Medicaid nursing home coverage will not be available.
The first of the two requirements–that you must have limited resources–has nothing to do with Qualified Income Trusts. Basically, if you have more than $2,000.00 worth of assets, you are too wealthy to qualify for Medicaid no matter how little money you earn.
Cash, stocks, bonds, retirement accounts, non-homestead real estate, and other investments are included in the $2,000.00 figure, but your homestead (no matter how much it is worth), $2,000 of personal property, a burial plot, a small amount of life insurance, and a car are generally not counted.
People with more than $2,000.00 can give away properties or convert them into properties that are not counted. However, depending on the date of the transfer, there may be a 36 month or 60-month look-back period. The lookback period is a way to keep you from giving away all your property and then applying for Medicaid the next day. For transfers made prior to February 8, 2006, the 36-month look-back period continues to apply unless the transfer was made to a trust, in which case the longer 60-month look-back applies. For transfers on or after February 8, 2006, a 60-month look-back applies to all transfers.
Also, there are rules which generally allow the spouse of someone trying to qualify for Medicaid to retain about $3,022.50 worth of property. A spouse’s property is not counted when determining the total value of assets for the $2,000.00 resources test.
The second of the two requirements–that you can earn no more than a certain dollar amount of income per month–is where Qualified Income Trusts enter the picture. Under current law, the monthly dollar limit is $2,205.00. People who earn more can’t qualify for Medicaid unless they have a Qualified Income Trust.
What you do is assign your income to the Qualified Income Trust, and the wording of the trust limits how much of the income can be distributed. This way, a person who makes more than the monthly limit will be treated as earning less than that amount, thereby satisfying the Medicaid income test. The trust can allow for certain payments, including insurance premium payments, other payments to support a spouse, and $60.00 each month for the beneficiary’s personal needs.
Money remaining in the trust after those payments are made must be paid to the nursing home for the beneficiary’s care, with Medicaid picking up the balance. With Qualified Income Trusts, people can get the government to cover the portion of the nursing home costs that they can’t afford.
Lawyers prepare Qualified Income Trusts. Therefore, everyone who needs one must first meet with a lawyer to discuss the specifics of the trust and all the other planning that goes with it.
To learn more about Qualified Income Trusts, search the internet for the words “Texas qualified income trust.” You can also call the Texas Department of Human Services at 888-834-7406 or visit their website at www.dads.state.tx.us. They have a summary of Qualified Income Trusts, and they also publish a “Medicaid Eligibility Handbook” which contains other helpful information.
Although life insurance is generally not subject to income taxation upon the death of the insured, it is subject to estate taxes if the insured owns the policy (or has other ownership rights).
Owning a life insurance policy results in all or a portion of the insurance proceeds being included in the insured’s estate and therefore taxed when death occurs, thereby substantially defeating the purpose of buying the life insurance.
While it is true that life insurance which is received by a spouse is not subject to estate or inheritance taxes because of the unlimited marital deduction (assuming the surviving spouse is a citizen of the United States), those same proceeds will be included in the spouse’s estate later on when he or she dies. Therefore, life insurance trusts are often a good idea even when there is a surviving spouse to receive the proceeds.
Life insurance trusts offer a number of significant advantages over outright ownership. For starters, the trust will insulate the proceeds from the claims of creditors and from spouses in a divorce.
Also, life insurance trusts can be written to last for children’s lifetimes and then pass without estate taxes to additional trusts for grandchildren. This is a feature commonly referred to by estate planning lawyers as “generation-skipping planning.” Your children shouldn’t be alarmed by the words “generation-skipping” because you are not skipping them. Your children can serve as trustees of their trusts, and they can be given the power to make distributions to themselves or their children according to fairly liberal standards. Normally, trusts like the ones being described would allow your children to make distributions for their health, education, maintenance, and support. And your children would be the ones determining how much money it takes to maintain and support themselves. Even though the life insurance proceeds will be held in a trust, your children would not be prevented from using the trust funds.
Probate is the process by which a person’s property and debts are handled after their death. In large counties, these matters are handled by specialized Probate Courts. Usually, an estate will be probated in the county where the deceased person (“decedent”) resided at his time of death.
The probate process starts with the filing of an application. Along with the application, the original of the Will (if there is one) has to be filed. A copy can be used if the original cannot be located. After the statutory waiting period, a hearing is held before the probate judge. At that hearing, the Court will determine the validity of the Will, and if the person named executor in the Will is qualified to serve. If the Will is admitted to probate, the Court will appoint an Executor and issue Letters Testamentary to the Executor. The Executor will identify and collect the estate property. The Executor will also identify any creditors the deceased person owed. Within 90 days of the appointment of the Executor, an inventory of the estate must be filed, unless it was waived by the Court. After the creditors have been paid, the final step for the executor is to distribute the assets to the beneficiaries named in the Will.
The first step in the process is to determine whether the decedent had a valid Will. The next step is to determine if the decedent left a surviving spouse or minor child, as Texas law offers them certain protections, regardless of whether there is a Will. If the decedent had no Will, he died “intestate,” and the State of Texas determines by law how the estate will be distributed. The Court will need the information to identify the decedent’s legal heirs.
Most Wills designate one person to administer the estate: this person is the Executor or Personal Representative. If the Will does not designate an Executor, or the named person declines or is unable to serve, the beneficiaries may collectively agree to one Personal Representative to be approved by the Court.
If the decedent died intestate (without a Will), the Court will appoint a Personal Representative, called the Administrator, who typically has the same rights and duties as a named Executor. A Court-appointed Administrator is likely to be the surviving spouse or next of kin.
If probating the Will is necessary, an Application to Admit Will to Probate should be filed with the Court. A short hearing will be held, during which the Court will determine if the Will is valid (if there is a Will), appoint and swear in the Personal Representative (Executor or Administrator), and issue documents authorizing the Personal Representative to act on behalf of the estate (Letters Testamentary).
These documents allow the Personal Representative to identify and collect the decedent’s property. (For example, a bank may require Letters Testamentary before allowing the Personal Representative to access the decedent’s accounts.)
Assets are classified as probate or non-probate. Non-probate assets are those which pass to the recipient automatically, without the need for probate. Non-probate assets include joint bank accounts with right of survivorship, life insurance policies with named beneficiaries, or real property with Transfer on Death deeds. These assets will pass according to the contract, plan, or policy, rather than the Will. On the rare occasion that a decedent had only non-probate assets at his death, probate may not be necessary.
Probate assets are everything else the decedent owned, and pass according to the Will or Intestacy Laws.
Once the Personal Representative has identified the decedent’s assets and debts, she should determine who will receive the assets and to whom the debts are payable. One of the Personal Representative’s most important duties is to pay the estate’s debts and distribute the remaining assets. Formal notice of probate must be given to each beneficiary and each creditor of the estate. Within 90 days of the Personal Representative being appointed, she should file an Inventory, Appraisement, and List of Claims with the Court, identifying the decedent’s assets and debts, along with their values. To preserve the decedent’s privacy, the Personal Representative may choose to file an affidavit in lieu of the Inventory, and simply distribute the Inventory to the beneficiaries and creditors.
An important factor in probate proceedings is whether the administration of the estate will be Dependent or Independent. A Dependent Administration requires constant Court supervision; the Personal Representative needs Court permission for almost every act she takes on behalf of the estate. The process of seeking and obtaining the Court’s authorization for these acts greatly increases the cost of probate: more paperwork, more hearings, and more time spent on the case by the attorney.
In an Independent Administration, the Personal Representative has much more independence and can perform most of her duties without specific Court authorization. This saves a considerable amount of time and money in the probate process. In most cases, the Court will allow an Independent Administration if the Will provides for one or if all beneficiaries agree.
A decedent’s debts will be paid in a particular order according to the law. If there are more debts than assets, the estate is insolvent. In this case, the State of Texas sets aside certain property for a surviving spouse and/or minor child of a decedent. After this “exempt property” is set aside, the remaining property is used to pay the decedent’s outstanding debts in order according to the law.
Texas allows a Will to be probated up to four years after the date of death. As such, finding the will is important. Common places a Will may be found:
Decedent’s home (filing cabinet, safe, office, attic, even the freezer!)
Decedent’s place of employment
Safety deposit box
The office of the attorney who drafted the Will
If possible, bring the Will. A copy of the Will is fine for the initial consultation, but keep in mind the Court will require the original Will for probate. If there is no Will, bring information needed to identify the decedent’s legal heirs.
If the decedent had a child or divorced a spouse after he executed his Will, state law provides protections against unintended consequences. A child born or adopted after a Will is executed is presumed to have been accidentally omitted, and that child may share in the estate equally with the decedent’s other children (although a Will may specifically “disinherit” any later-born children, in which case that child would not share in the estate).
A former spouse named in the Will is treated as if she died before the decedent (unless the Will was executed after the marriage to the former spouse ended).
Family Violence and Assaults are an area where Family Law and Criminal Law intersect. The outcome of your criminal charges can greatly impact the possibilities and outcome of your Family Law case (i.e. child custody and/or divorce case), and vice versa. Therefore, it is extremely important to obtain a lawyer who practices both in Family Law and in Criminal Law so that we can assist you in navigating these cases and advise you of how a decision in one case can impact the outcome of the other case so that you can obtain the most desirable outcome possible for both your family law case and your criminal law case.
We also understand that, unfortunately, sometimes Family Violence allegations are falsely made in order to gain leverage in a Family Law case. We know what signs to look for and how to use this information to protect your interests at Court. Further, we work to have the charges dismissed and minimize their effects on your Family Law case. In the criminal court, you are presumed innocent until proven guilty and we fight to preserve this innocence in your Family Law case as well.
According to Texas Family Code Section 71.004, Family Violence is an act by one family or household member against another member that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the other in fear of imminent physical harm, bodily injury, assault, or sexual assault (but does not include a defensive measure to protect oneself). It does not require that the alleged perpetrator and victim reside in the same household currently or be related, but can be brought if there is a past or present marital or dating relationship. The physical contact does not have to result in an injury.
If you are fearful of your partner and believe you have been a victim of family violence you should contact your local police department immediately. If you have contacted them and they are unwilling to assist you, we may be able to help by seeking a Protective Order from the Family Law Court to protect yourself and your children. Contact us for a free consultation so we can discuss your options.
Under Texas Penal Code Section 22.01, assault occurs if a person intentionally, knowingly, or recklessly causes bodily injury to another or intentionally or knowingly threatens another with imminent bodily injury or causes physical contact with another when the person knows or should reasonably believe that the other person will regard the contact as offensive or provocative. The victim of assault can be any person, including a spouse or household member. This offense can lead to charges that range from a Class C Misdemeanor all the way up to a 2nd Degree Felony, depending on who the alleged victim is and prior convictions of the alleged perpetrator. It is important that you have an attorney on your side to assist you in defending against these charges so that your rights are protected. Call us at 817-424-3405 to schedule a consultation immediately.
At Anderson Legal Group, P.C., we assist clients in all aspects of their estate plan. Our services also include helping the family after someone passes away. During our free consultation, we listen to your goals and work with you to determine how best to solve your legal problem.
During your free consultation, we will discuss and customize your options. Often, a simple Will may meet your needs. However, depending on your objectives, we also might need to discuss implementing a trust. We will give you the pros and cons of each possible solution so that you are empowered to make the decision that is right for you. We will also provide practical solutions to avoid future problems.
Our Firm is also hired by individuals to assist with the legal process of resolving the decedent’s estate. This process is called “Probate.” When we Probate a Will the deceased person’s estate is settled. This process includes collecting and distributing assets, settling and paying claims or debts, and distributing the net estate to the beneficiaries.
Give us a call to set up your free consultation. During our no-obligation meeting, you will learn about the process, which documents we propose, and the exact costs. After our meeting, if you decide to retain us, we will provide a written Contract for your review.