NOVEMBER 22ND, 2009
By IRVINGLAW
Irving attorney explains the difference between community property and separate property.
What is separate property? Separate property is property acquired before marriage. It is also property acquired during marriage by gift, devise, or descent; and recovery for personal injuries by a spouse during marriage except for recovery for loss of earning capacity during marriage. Property received by devise or descent is property received from the estate of a person who has died.
For example, if a relative passes away and leaves you money or property it is separate property regardless of your marital status.
What is community property? Community property is property acquired by either spouse during marriage with two exceptions. First, property received by gift, devise or descent is separate property. Property received by devise or descent is property received from the estate of a person who has died. Second, during marriage any recovery for personal injuries by a spouse is separate property except for recovery for loss of earning 
capacity during marriage.
For example, if you and your spouse buy a house after you are married it is community property. However if one spouse purchased the home before the marriage and then the other spouse moved in after the marriage the house is the separate property of the purchasing spouse.
What is the community property presumption? There is a presumption that all property owned by a married person is community property. This presumption can be challenged by clear and convincing evidence.
For example, you buy a vehicle while you are married but only your name shows on the title and loan. There is still a presumption it is community property owned by both spouses even if titled in only one spouses name.
What about property acquired in another state? It is important to note in Texas the answer is different in a divorce verses a probate proceeding. In a divorce proceeding the property will be characterized as “quasi community property” and treated the same as the other community property. In a probate proceeding the property will be characterized according to the laws of the state where it is located.
I am preparing a new FAQ blog entry. Please post questions in the comments section and see your question answered in a future entry.
Irving Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area. She provides a variety of legal services for individuals and small business owners.
NOVEMBER 8TH, 2009
By IRVINGLAW
Irving attorney explains what happens when you die without a will. In a previous article I explored why you need a will but now we will consider the consequences of not having one.
As discussed previously a properly drafted will answers four key questions.
- Who will manage your estate?
- Where will your property go?
- Who will care for your dependents?
- Have your unique needs been met?
To help understand the impact of failing to have a will we review these questions looking from the perspective of the Jones family. The Joneses decided the kids were old enough to leave with Grandma while they went away for the weekend. After depositing the kids with Grandma they head out of town for a romantic getaway to celebrate their anniversary. Before they made it out of the county they were sideswiped by an eighteen wheeler. Both of the Joneses died instantly.
Who will manage your estate? This person is the executor. The executor is responsible for gathering all of your assets, paying all of your bills and distributing the remaining property to the proper people. The person selected for this job should be someone you trust implicitly. The Joneses knew which family member had a gambling problem and which was the most responsible. However, the Joneses don’t have a will so a Judge and the State of Texas will make this decision for them.
Where will your property go? These are your beneficiaries. Most people who leave behind minor children would want their property used for the care of those children. In some cases, a person leaves behind family heirlooms that are more meaningful to a particular family member. With a will the Joneses could have identified those heirlooms that should go to a particular person. The Joneses could have specified that their estate go to or be managed by the person who is caring for their dependents. Since the Joneses don’t have a will a Judge and the State of Texas will make these decisions for them.
Who will care for your dependents? This person is called a guardian. The typical dependent is a minor child. However, an adult disabled child, incapacitated spouse or any one you have assumed legal responsibility for is also a dependent. With a will you can identify the person you want to step into your shoes and care for your loved ones. The Joneses know which family member is an alcoholic, whose parents are in the best health or if a close friend is better suited for the task. Since the Joneses don’t have a will a Judge and the State of Texas will make this decision for them.
Have your unique needs been met? A unique need is as varied as the human population. This can include relatives not related by blood (step family) for whom there is no legal recognition but often a close emotional connection. Perhaps it is a special needs child or incapacitated spouse who needs someone else to manage their financial affairs or it could be tax planning necessary for your estate. The Joneses have the current common family structure. Kids from each of their first marriages and one child from this marriage. The Joneses could have taken steps to enable the children to be raised together or at least maintain contact upon their death. However, the Joneses don’t have a will so a Judge and the State of Texas will make this decision for them.
What does a will do for you? It allows you to protect and provide for the loved ones you leave behind. The Joneses knew it was important to have a will and had that on their to-do list. Sadly that task while important never got done. This is the impact of that decision on their loved ones.
Irving Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area. She provides a variety of legal services for individuals and small business owners.
NOVEMBER 1ST, 2009
By IRVINGLAW
Irving business attorney discusses issues to consider when forming a Limited Liability Company (LLC). Selecting your business structure is one of the most important decisions you will make. You should take the time to consider all of your options before selecting a business structure.
When you create an LLC you are creating an entity that is completely separate from the owners who are called members. The LLC will continue to exist until dissolved. The LLC combines many of the strengths of both corporations and partnerships. The members have liability protections similar to a corporation. They are shielded from liability for the LLC’s debts, obligations and liabilities. However, they have the benefit of partnership type federal tax treatment.
One of the first decisions to be made is the name of the business. When forming as an LLC you must include Limited Liability Company, Limited 
Company or an abbreviation of one of these in the name of the business.
It is important to be familiar with any state or local requirements for the business you intend to run. Are there professional license requirements that exist? Hairdresser, employment agency or real estate agent are just a few of the businesses that have licensing requirements. You will also need to check with the city for any permits that are required. For example, a restaurant will need a permit from the local health department and a liquor license if they offer alcoholic beverages.
If the business will be involved in transactions that are subject to sales tax the seller must obtain a sales and use tax permit. The margin tax became law effective 1/1/08 replacing the franchise tax. With the margin tax there is a presumption of taxability. Sole proprietorships, general partnerships owned by natural persons, and certain non-profit and investment entities are excluded from the tax. The margin tax is a tax on the gross profit margin of the business.
A discussion with an attorney and CPA will help determine if an LCC is the best structire for your new business.
Irving Attorney Debbie J. Cunningham practices law in the Irving Las Colinas area. She provides a variety of legal services for individuals and small business owners.
capacity during marriage. 
