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DWI arrest! Now what?

DWI arrest! Now what?

In Texas, when a person is charged with Driving While Intoxicated (DWI), they are actually facing two very separate cases; one is a criminal case and the other is a civil case. If there is sufficient evidence of a DWI, the State of Texas, usually a Prosecutor at the District Attorney’s office, will charge you criminally. This means you could potentially be facing probation, jail time, fines, attending DUI/DWI classes or installation of car breathalyzer.

What most people are unaware of is that once there is sufficient evidence you were driving while intoxicated, the Department of Public Safety will also move forward and pursue a civil case; this case is an attempt to suspend or revoke your driver’s license.

There are very strict deadlines and regulations that DPS has in place regarding procedures and hearings regarding your driver’s license. The civil part of the DWI is governed by Administrative Law and a Prosecutor for the Department of Public Safety will prosecute the case. Also, because this case is civil, you are not entitled to a court appointed attorney or an attorney from the Public Defender’s Office. You can choose to represent yourself or hire an attorney.

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What is a Ladybird Deed?

What is a Ladybird Deed?

A Ladybird Deed, sometimes called an Enhanced Life Estate Deed, is a deed filed in the property records of the county where the Texas real property (home) is located. The deed is a protection from Medicare reimbursement claims should the owner of the Texas real property be placed in a nursing home or incur Medicare expenses. Keep in mind that the State is only able to make a claim for reimbursement for assets in a person’s estate. The Ladybird Deed causes the real property to transfer ownership outside of a person’s estate. The deed essentially makes the real property a non-probate asset and therefore not subject to State or Medicare reimbursement claims. (See Probate blog for definition of probate and non-probate assets.)

What does this mean? 
This means that when you apply for Medicare, an evaluation will be done on your assets as well as transfers of assets that took place five years before applying. The benefit of having a Ladybird Deed is that it is not considered a transfer under Medicare’s definition therefore the transfer does not need to be reported.

Another benefit is the owner of the Texas real property retains all power to sell, convey, or mortgage the real property without the consent of the beneficiary. Essentially the Ladybird deed permits the Texas real property owner complete control of their Texas real property, avoid probate at death and avoid their Texas real property from being subject to a Medicare reimbursement claim.

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What is Probate?

What is Probate?

Probate is a process used if a person needs court documents to transfer title of assets that belonged to a person who is deceased.

What happens in probate? 
After death, a person’s Will is filed with the Court along with an Application to Open the Estate, the case is heard by a Judge and documents (Letters of Testamentary) will be provided by the Court to allow the Executor of the Will to transfer title of the decedent’s assets according to the Will.

In simpler terms, Probate is a legal way to transfer title of assets of a person who is deceased.

Is probate required in Texas? No. If there are no assets or assets that don’t require a court document to transfer title, probate is not required. An example of how assets are titled that don’t require probate are:

  • Bank account with Payable on Death designation.
  • Vehicle owned with two or more persons with Joint Tenants with Right of Survivorship.
  • Home owned with a recorded Ladybird or Enhanced Life Estate Deed.
  • Life Insurance with named beneficiaries who are still living
  • 401K with named beneficiaries who are still living.

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