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Issues of Estate Planning and Probate Across State Lines R. SHAUN RAINEY, Midla

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Issues of Estate Planning and Probate Across State Lines R. SHAUN RAINEY, Midla WHEN THE ESTATE REACHES THE LAND OF ENCHANTMENT: Issues of Estate Planning and Probate Across State Lines R. SHAUN RAINEY, Midland COTTON, BLEDSOE, TIGHE & DAWSON, PC MIDLAND COLLEGE ESTATE PLANNING UPDATE 2019 Thursday, May 2, 2019 R. SHAUN RAINEY SHAREHOLDER COTTON, BLEDSOE, TIGHE & DAWSON, P.C. 500 West Illinois, Suite 300 Midland, Texas 79705 Telephone: (432) 684-5782 Facsimile: (432) 682-3672 www.cottonbledsoe.com Education Texas Tech University School of Law, Lubbock, Texas Doctor of Jurisprudence, Cum Laude, May 2011 Rice University, Houston, Texas Bachelor of Arts in Political Science and History, May 2008 Bar Admissions State Bar of Texas, 2011 State Bar of New Mexico, 2012 Presentations and Academic Experience Co-Presenter Murder in the Heir: Application of the Slayers Rule in Texas; Webinar: TexasBarCLE, State Bar of Texas; December 6, 2018; Austin, Texas. Co-Presenter Murder in the Heir: Application of the Slayers Rule in Texas; Webinar: TexasBarCLE, State Bar of Texas; December 6, 2018; Austin, Texas. Presenter When the Estate Reaches the Land of Enchantment: Issues of Estate Planning and Probate Across State Lines; 2018 Estate Planning & Elder Law Seminar, Amarillo Area Bar Associate; September 14, 2018; Amarillo, Texas. Author When the Estate Reaches the Land of Enchantment: Issues of Estate Planning and Probate Across State Lines; Intermediate Estate Planning & Probate: Practical Applications, TexasBarCLE, State Bar of Texas; June 12, 2018; Dallas, Texas. Panelist Estate Planning & Probate Across State Lines; Intermediate Estate Planning & Probate: Practical Applications, TexasBarCLE, State Bar of Texas; June 12, 2018; Dallas, Texas. Co-Author, To Will or Not to Will and Newly Added To Trust or Not to Trust: What You Need to Know About Texas Probate Law, Wills, Trusts, and Incapacity Planning; Project of the Inaugural REPTL Leadership Academy 2016-2017, Real Estate, Probate, and Trust Law Section, State Bar of Texas. Co-Presenter, State Bar of Texas; TexasBarCLE Webinar: Care Giver Do’s and Don’t’s; May 10, 2017; Austin, Texas Presenter/Author, Paralegal Association of the Permian Basin; Help Me Help Your Client, How Your Practice Affects The Estate Planning and Probate Attorney; September 21, 2016; Midland, Texas Presenter/Co-Author, A West Texas Perspective on Estate Planning and Probate; June 10, 2016; Midland, Texas Presenter/Author, National Business Institute; The Probate Process From Start To Finish, Probate Disputes and Litigation: We’re Gonna Play the Sue Me, Sue You Blues; August 27, 2015; Midland, Texas Adjunct Professor, Paralegal Program, Midland College, Midland, Texas. Associations and Memberships Midland County Young Lawyers Association, President 2014-2015 Midland/Odessa Business and Estates Council, President 2017-2018 Texas Bar College, State Bar of Texas Real Estate, Probate & Trust Law Section, State Bar of Texas Real Property, Trust & Estate Law Section, State Bar of New Mexico Legal Awards and Honors Bob Black Bar Leaders Award, 2015, Presented by Texas Tech University, School of Law Judge Ken G. Spencer Award, 2011, Presented by Texas Tech University, School of Law REPTL Leadership Academy, Participant, 2016-2017 ISSUES OF ESTATE PLANNING AND the call of the Land of Enchantment and have PROBATE ACROSS STATE LINES taken advantage of the opportunity and proximity creating the need for legal counsel I. INTRODUCTION in New Mexico. As much as Texans love to say Texas is “like a whole other country,” it is true of our sister state 2. Clients living out of State neighbors as well at least from a legal stand point. with Property in Texas. Another opportunity The law of estate and probate in Arkansas, Louisiana, arises when the inverse is true, a client living New Mexico, and Oklahoma, as well as our more out of state but with property in Texas. distant neighbors, present potential pitfalls for the Whether it is interest in a family ranch or Texas practitioner when the business and personal mineral interest from generations long past, or dealings of a client fail to magically stop at the state new investment in the opportunity of the great line sign along the highway. Even a client domiciled Texas experiment, many individuals from in Texas may have issues involving family, business beyond Texas have interest to seek the dealings, or property elsewhere, and thereby implicate reward. the law of other jurisdictions. In our ever shrinking world, the historically local nature of the practice of 3. Clients with Relatives out of law is being continually pressed, particularly in areas Texas. Estate planning attorneys are also reserved to the states from the beginning of the often called upon to provide advice related to republic: family relations, property ownership, and family in other states. For instance, clients distribution upon death. may have children or parents in another jurisdiction and have questions about the A. Scope of Paper. While ethical effect a gift to or from those individuals might considerations in representing clients with legal affect the estate planning of each generation concerns which do not neatly end at the border of the or simply the process to deal with mom’s great state of Texas are analogous no matter the estate when she finally passed from this world “lesser” state at issue, the focus of this paper is the to the next. relationship in the law of estate planning and probate between Texas and New Mexico, both ethically and 4. Clients Moving out of Texas. practically. Part II of the paper discusses ethical Another example is the long term client who considerations related to assisting clients beyond has finally retired and is moving out of state Texas. Part III is intended as a primer for, and in no for the beauty of the mountains, the proximity way the definitive work on, estate planning in New of family, or some other reason presently Mexico such as to provide the Texas practitioner with unknown (and not remotely understood) to the tools to make informed discussion related to needs of author. Often the level of trust and a client in relation to New Mexico. Emphasis is given institutional knowledge developed by an to commonly received questions and issues in the attorney and client over many years of author’s practice as well as aspects of New Mexico representation will bring the client to request law which may differ from Texas. Part IV to continue to serve as counsel for estate implements the same parameters to provide planning needs of the client in spite of their information regarding probate in New Mexico, with move to another jurisdiction. specific emphasis on ancillary probate options. C. The Federal Aspects of Estate B. Opportunities for Cross Border Planning. Further, the practice of estate planning is Issues. There are several reasons why the Texas in some aspects a nationwide practice. To the extent estate planning and probate practitioner will come into any particular client may have need for planning to contact with issues outside of the great state of Texas. avoid or eliminate a federal estate burden or planning to ensure maximum benefit of the basis adjustment for 1. Clients with Property Outside purposes of capital gains taxes, the requisite Texas. Perhaps the most common example is knowledge is related to federal law as contained in the the client who is a resident of Texas with Internal Revenue Code, enforced by the Internal property located in another state. For the west Revenue Service, and interpreted by the Tax Court. Texas practitioner, this will often be the Therefore, most estate planning techniques are used Amarillo native with a mountain home in nationwide in strikingly similar structure. It is Taos, the family business operating in Las undoubtedly the case that a knowledgeable and Cruses and El Paso, or Midland geologist with experienced estate planner has the tools necessary to oil and gas interests in the Permian Basin of prepare the best plan for tax purposes, but it is southeast New Mexico. These clients, important to remember that each state can involve a whether for business or pleasure, have heard slightly different twist on the “traditional” recipe which presents the unwary practitioner the 2. Reasoning for Limitation. opportunity for unintended and unfortunate results. “Whatever the definition [of the practice of law], limiting the practice of law to members II. ETHICAL CONSIDERATIONS FOR CROSS of the bar protects the public against rendition BORDER ISSUES. of legal services by unqualified persons.” Cmt [2], Rule 16-505 NMRA. Given all of the scenarios in which a Texas practitioner may have opportunity to stretch their a. Competent license and mental muscle to provide assistance on the Representation. The primary purpose law of another jurisdiction for clients, it is paramount of unauthorized practice of law that any representation be undertaken with an statutes is to protect the public from understanding of the legality and potential issues in the loss or sever limitation of legal doing so. rights through the receipt of incompetent legal representation. A. Practice of Law by Non-Admitted While legal representation by persons Attorneys. New Mexico Rule Annotated 16-505 is who have not been trained in the law, the New Mexico codification, as amended, of ABA and are, therefore, presumably unable Model Rule 5.5. Specifically, Rule 16-505 states “a to recognize legal issues pertaining to lawyer shall not practice law in [New Mexico] in the client’s particular situation, can violation of the regulation of the legal profession in significantly limit the rights of an [New Mexico] or assist another in doing so.” Rule individual or entity, so too can action 16-505.A. Further, Comment [1] expounds that a taken by lawyers admitted in another “lawyer may practice law only in a jurisdiction in jurisdiction based not about their lack which the lawyer is authorized to practice.” However, of skill, but lack of knowledge of the Comment [2] notes that the definition of the practice unique aspects of legal practice in that of law is established by law and varies from jurisdiction.
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