Texas Estate Planning Legal Questions

Please take whatever documents you have to a probate lawyer (preferrably one who does fiduciary litigtion) who practices in the county in which the people died.  Please also note that the Texas Estates Code now permits an heir or beneficiary or someone who can convince the Court that they are interested in someone's well-being to ask the Court to look into the actions of an agent under a Durable Power of Attorney.... Read More

That seems odd if you plan to act jointly.  However, if the trust agreement does not state that you must act jointly, your sister could act without you.  If she made a mistake, you could be financially liable as well.  Perhaps you should have it reviewed by an attorney and take steps, if needed, to limit your liability.... Read More

First, your father's estate must be probated by a Court heirship proceeding, small estate affidavit or Affidavit of Heirship, passing his interest to your mother (if all his children are her children). Second, if your mother lacked legal capacity to contract when she "sold" the lots to your sister, report elder exploitation to Adult Protective Services. Third, if the person who purchased from your sister did not know all this, your remedy is to sue your sister for the money she got from selling the lots. You may be eligible for free representation through Volunteer Legal Services or discounted representation through the Modest Means program of Lawyer Referral Service in your area or through a clinic at a nearby law school.... Read More

First, your 401k passes to your spouse under federal law and then to any designated beneficiary on a form you complete and file with the plan administrator.  It should not pass under your Will, but will if you have no spouse and have not completed and filed a designated beneficiary form. Second, if your bank accounts are "joint with right of survivor" or "pay on death," they, too, pass outside your Will. Third, your house can pass outside your Will and free of Medicaid Estate Recovery using a Transfer on Death or a Lady Bird Deed. Fourth, if the royalties are mineral rights, this approach could also be used. But you do need a Will, if only as backup.  Some title companies are uncomfortable with Transfer on Death and, to a lesser extent, Lady Bird Deeds. If you get an online Will (and I have seen those prepared by several vendors), it is likely to be inadequate and you are very likely not to execute it with all the legal requirements, leading to an intestacy.  The Will will not be worth the paper it is written on.  Moreover, those vendors have no skin in the game.  An attorney not only risks a bad online review, a loss of reputation at the court and among colleagues, but a malpractice suit -- and you benefit from the required malpractice insurance.  Until the Texas Supreme Court creates a Will form (which it has been working on for years), you and whomever you want to leave things to, are much safer with a Will drafted by an attorney and addressing your particular circumstances.  You will also find that a good estate planning attorney will provide much more than a Will:  documents to help you stay in charge of your medical care and finances while you are alive, information sheets and guidance for your executor, and counseling building on the information above.  You can be penny wise and pound foolish, or pay extra to an online vendor for a few other documents and risk going without important legal, tax and financial counsel, but is that really what you want?  ... Read More

Contact a probate lawyer who practices in the county in which your grandmother lived and died.  Since the check is to the estate, not to you, you must open a formal probate (proving) of her estate by filing an Application for Determination of Heirship and Issuance of Letters of Administration or, depending on the amount in her estate, a Small Estate Affidavit.... Read More

While a surviving spouse has a lifetime right to occupy the house in Texas, once he leaves, that right is forfeited.  From your reference to "half" it appears that the house was community property and you are your mother's only heir.  Your stepmother may be your father's heir but only after he dies.  She has no rights while he is alive.  You may try to persuade your stepfather to join you in selling the house.  You may offer to buy him out or have him buy you out.  Given the time that has passed, you may sue for partition, forcing a sale.  Contact a local probate attorney.... Read More

A change to a Will (if you do not need an entirely new Will) is called a Codicil.  It must be witnessed and notarized with the same formality as a Will and should state that apart from the changes it restates the current Will.  To make sure that it is drafted and executed correctly, see an estate planning attorney. The Texas state legislature has created a statutory Durable Power of Attorney that anyone can download from the internet.  However, it both gives your agent too much power (such as trading commodities and options with your money) and too little power (such as hiring home health aides and others to help you, forwarding your mail, submitting your tax returns, applying for Medicaid, handling mineral rights, etc. etc.) and does not include the legal obligation to report, etc.  Elder law attorneys tend to produce Durable Powers of Attorney crafted for your individual circumstances and needs.  You can find one near you using the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org) You may find that having a lawyer draw up a codicil and Durable Power of Attorney costs less than you imagine.  It is certainly preferrabl to handwriting these without any legal training and later learning (or having your family learn) that they are not worth the paper they are written on.... Read More

If the house is not in your mother's name, it is already owned by you, one sister and the other sister's estate.  If there is more in the estate than the house, you will have to probate the Will to get it.  Contact a probate attorney who practices in the county in which your mother lived and died.... Read More

Your sister has no legal obligation to inform you of anything.  If there was no Will and you were an heir under Texas law, the attorney of the person applying to probate the estate would have sent you a Distributee's Agreement.  If there was a Will and you were a named beneficiary, the attorney for the person whom the Will appointed and the Court named as executor of the Will and estate would have sent you a Notice to Beneficiary after the Court admitted the Will to probate.  Based on your description, it appears that there was a Will and that you were not named as a beneficiary.... Read More

Once a Will has been submitted for probate, it becomes a public document and can be read by anyone on the website of or requested from the local probate clerk.  You may think that your mother had no reason to leave things to someone who took care of her when you did not but she may have thought differently.  Since someone can make a Will in a "lucid moment" and a Will must be notarized with two witnesses, it would be very difficult to prove that she did not make the Will of her own accord, whatever her general condition.  In addition, undue influence must be so great as to overpower a person's normal wishes and desires.  While it is easy to imagine that someone was influenced by the care they received in their dying days, it is not so easy to imagine that a Will gifting the person who provided that care was obtained through undue influence.... Read More

Bad idea:  inherit the house subject to Medicaid Estate Recovery and, if your mother needs a lot of nursing home care paid for by Medicaid, get little or nothing. Worse idea:  hire a lawyer to draft a deed from your mother granting you an interest in the house "with right of survivorship" and, if your mother needs to apply for Medicaid for nursing home or home health care (Star + Plus Waiver), both be charged with Medicaid fraud and, at a minimum, have to deed it back (both the Bexar County DA and the Texas AG could get involved) Better idea:  hire a lawyer to draft and record a revocable General Warranty Deed Reserving an Extended Life Estate (a/k/a "Lady Bird Deed") from your mother to you or let your mother sign and record a revocable Transfer on Death Deed (www.texaslegalhelp.org) transferring the home to you on her death and free of Medicaid Estate Recovery.  In Texas, Medicaid can only recover from the probate estate.  If the deed transfers on death, the home never becomes part of the probate estate.... Read More

Hire a probate lawyer in the county in which your mother lived to file an Application for Determination of Heirship and Issuance of Letters of Administration.  If Florida law treats mineral rights as personal property, that should suffice.  If Florida law treats mineral rights as real property, after the Texas probate there will need to be an ancillary probate in Florida.... Read More

It sounds as though you need to take the Will to a local probate attorney and present it for probate.  A Small Estate Affidavit can only be used if there is no Will and if the person left no more than a home, personal possessions worth no more than $60,000 and other assets (such as bank accounts) worth no more than $75,000.  Some courts require that the heirs be the surviving spouse or minor children.... Read More

If the land is in a trust, you do not own it:  the trust does.  The trustee decides whether to sell the land.  The beneficiaries (apparently your husband and his two siblings) do not. If a trustee is not putting the interests of the beneficiaries first but is putting his own interests first, the beneficiaries can sue to have him removed.  But whether selling or not selling the land is putting the beneficiaries first is a big question.  You may want to take a copy of the trust agreement to a lawyer who does fiduciary litigation and discuss the specific facts.  ... Read More