FAQ- Amsberry Law Firm

We have compiled a number of the most frequently asked questions we get at our firm. We have broken this legal FAQ into two sections. The first is our Video Legal FAQ, which is a growing library of our attorney answering questions on video. The next is a traditional written Legal FAQ where you can read some of the most popular questions and their answers.

Estate Planning/ Probate

Q: What is intestacy?

A: It is when an individual does not have a will or trust, and his estate is distributed based on formulations in the Texas Probate Code that address the fractional share interest statutorily set.

Q: What happens when my parent dies without a will?

A: The estate which is subject to intestacy laws, depending on its size, whether there are debts and amount of debts in relation to the estate, and whether heirs of the decedent can agree or not agree on who will act as fiduciary of the estate, may qualify for disposition through a small estate affidavit, heirship affidavit, determination of heirship, and application for dependent/independent administration.

Labor & Employment Law

Q: What is “at-will” employment?

A: At-will employment is when an employee does not have a contract and can resign his position at anytime or where an employer can terminate such employee for any reason – good reason, bad reason or no reason – as long as the reason for making the decision is not an illegal reason.

Q: What are forms of wrongful termination recognized in the State of Texas?

A: Although this list is not comprehensive, an employer cannot terminate an employee on the basis of her race, sex, national origin, religion, disability, perception of disability, age, or for opposing the performance of an illegal act as a term and condition of employment.

Family Law

Q: How long does it take to get divorced in the State of Texas?

A: The minimum period of time required from the date of filing a petition for divorce is sixty (60) days.

Q: In a custody battle, what is the standard followed by Texas courts in deciding conservatorship?

A: Courts will take into account the best interest of the children, which has been interpreted to include such consideration as the stability of the households, earning capacities of the respective parents, emotional and psychological fitness of the parents, and desire of the children to live with a particular parent.

Q: I am a member of the military and my wife and I have been married for less than ten years. Can I keep my full retirement?

A: Unless there is an agreement to the contrary, federal law provides your spouse with a fractional interest in the retirement. While DFAS may not be required to send her a check each month, as would be required if overlapping period of the marriage and military service were ten or more years, the service member still has a fiduciary obligation, in many instances, to pay percentage of retirement allowed under law.

Elder Law

Q: My father needs to be placed in a nursing home and he cannot afford the monthly cost, but has been told that his monthly income exceeds the medicaid cap to be eligible for a medicaid bed at a nursing home. Is there any way that he can be qualified for medicaid?

A: There are several considerations when working to qualify a family member for medicaid nursing home assistance. Among them are consideration such as the total assets of the estate, whether the parent’s spouse is still alive and able to live at their principal residence, if there is spending down required, and other related issue. However, upon evaluating these and other considerations, you may be able to qualify for medicaid through use of a Miller’s Trust, also known as Income Cap Trust.

Q: My former daughter-in-law will not allow me as the paternal grandparent to see my grandchildren. Do I have any rights to seek visitation and access?

A: Yes, you do. Under the Family Code, there are provisions for grandparental access which may otherwise create specific rights under circumstances established under the statute.