Author Archives: Dermot Rigg

At Last, a Little Privacy!

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September 23  |  Uncategorized  |   Dermot Rigg

One of the major concerns with the Texas probate system has been that the Probate Code requires the filing of a “verified, full and detailed inventory” of all estate property within 90 days after the estate representative’s qualification. Once an inventory is filed, it becomes a public document, and the whole world then gets to see how much Mom left her children, and which kid got what – making public what should be private family business, and exposing the kids to unwanted attention from con men, identity thieves, and others all too willing to share the inheritance. Not surprisingly, this has led to many elaborate efforts to avoid probate.

During the 2011 legislative session, the Texas Legislature finally addressed this problem with a significant amendment to the Texas Probate Code. Effective September 1, 2011, an independent estate representative (as opposed to a dependent, or Court appointed representative), can simply file an affidavit in lieu of an inventory, as long as no debts remain unpaid as of the date the inventory is due. The inventory is due 90 days from the date the representative qualifies, which allows enough time to pay the decedent’s debts in most cases. The beneficiaries are still protected, because the representative must still prepare a sworn inventory and provide a copy to all beneficiaries, except those receiving specific gifts. However, the inventory in this instance is private, and shielded from public view. This is a welcome revision, because it simplifies the probate process and insures privacy for the estate and the decedent’s heirs. It should also give the public more confidence in the Texas probate system.

MY CONTRACTOR MESSED UP. WHAT DO I DO NOW?

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June 3  |  Civil Litigation  |   Dermot Rigg

Many homeowners have had problems with homebuilders or contractors who have done questionable work. What are the legal remedies for substandard home construction or repairs?

A little historical background is in order. In 1973, the Texas Legislature passed what is commonly known as the Deceptive Trade Practices Act (the “DTPA”). The DTPA made it relatively easy for consumers to recover large judgments for “false, misleading, or deceptive acts or practices.” It didn’t take long for creative lawyers to convince juries that many ordinary breaches of contract were deceptive or misleading in some way. This was particularly true for homeowners. We all live somewhere, and we all have horror stories about leaking roofs, shifting foundations, and lousy repair jobs. Homebuilders and repair contractors took a beating at the courthouse under the DTPA, and many of them got hit with actual damages plus large awards for “additional damages” – code for punitive damages, meaning punish the guy and maybe even put him out of business. Additional damages under the DTPA include treble damages for mental anguish. The DTPA put contractors at a tremendous disadvantage at the courthouse; after all, what juror hadn’t suffered mental anguish when the plumbing leak in the bathroom overflowed onto the nice new bedroom carpet?

In 1989, the Texas Legislature, under intense pressure from the home building industry, passed the Residential Construction Liability Act (the “RCLA”). The RCLA limits damages for construction defects or repairs to reasonable costs of repairs, engineering and consulting fees, expenses of temporary housing, reduction in current market value after repairs in the case of a structural failure, and attorneys fees. In many cases the RCLA also gives the contractor the right to inspect the home and make an offer to repair the defects. The contractor can also force the homeowner to mediation in cases involving more than $7,500. Most importantly, no “additional damages” can be recovered, and the RCLA specifically excludes DTPA claims in most cases. In short, the RCLA shifts the balance of power to the contractor.

I have represented homeowners and contractors in numerous construction defect cases, so I do not have a professional bias either way. In my opinion, the DTPA went too far in punishing homebuilders and repair contractors for shoddy work that could be remedied with damages for breach of contract. However, the DTPA did give the contractor a real incentive (additional damages) to do his job right, and the RCLA takes away that incentive. Regardless of whether the RCLA is right or wrong in its treatment of homeowners, it is the law. Homeowners with legitimate claims for construction defects or repairs should carefully document their claims (nothing beats good photos showing the missing rafters or the loose shingles), and be prepared to deal with the contractor to repair the problem. If that fails, the only remedy is a glorified breach of contract suit under the RCLA.

Construction defect litigation is often costly, and far more frustrating and time-consuming than most people realize. There is an old adage among trial lawyers that “A bad settlement is better than a good trial.” The compulsory mediation requirement of the RCLA is a good one, because most cases settle at mediation, resulting in a settlement the parties can live with, instead of a “good trial” that often only benefits the lawyers and expert witnesses.

The Missing Will

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March 31  |  Estate Planning/Probate  |   Dermot Rigg

A client recently contacted me and asked me to handle the estate of a cousin who had passed away several months earlier. The decedent evidently had a will – but no one could find it. Because there was no will to probate, I recommended that the decedent’s three children file an heirship proceeding and appoint my client – or someone else that they trusted – to be independent administrator of the estate. When a person dies without a will, an independent administration under the Texas Probate Code is relatively inexpensive, but it depends upon all the heirs agreeing on this type of proceeding. However, one of the decedent’s children would not agree to an independent administration. The only alternative was a court-supervised administration, but no one wanted to take on the burden and expense of serving as the court-appointed administrator of this small estate. Everything is now in limbo, with bills piling up and no one to take care of the decedent’s property. Eventually, the property will be foreclosed upon for non-payment of taxes, and each of this gentleman’s three children will lose one third of their inheritance.

There are several lessons to be learned from this story:

You need a will. Have a professionally prepared will that leaves your estate to the people you want to inherit from you. Don’t try to do this yourself; even lawyers who don’t specialize in probate and estate work can mess them up.

Keep your will in a safe place. A safety deposit box is best, but a secure place in your home will do if people you trust know where it is.

Don’t keep your will a secret. By all accounts, the decedent was very business like, and had his affairs in order. Unfortunately, he was also very secretive, and those he loved and wanted to give his estate to didn’t know if he actually had a will, or what was in it. Let someone you trust – preferably a family member – know about your will, or at least where it is kept. You should also have copies available, since a copy of a will can be admitted to probate in Texas under some circumstances.

Welcome to dermotrigg.com

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March 27  |  Civil Litigation, Miscellaneous  |   Dermot Rigg

Welcome to our new website. We hope you consider our firm the next time you need legal assistance. Please come back and visit this section in future weeks for articles relating to Dermot Rigg and current events that relate to the law and other legal issues.