Texas Trusts Legal Questions

The lawyer is representing your brother and, thus, has authority to act on your brother's behalf. That is why the envelope is addressed to the lawyer. Even if you send it to your brother, he would have to give it to the lawyer because only the lawyer can file the document with the court.    ... Read More

I'm not certain what taxes you seek to avoid but if your trust is receiving income, I presume the investment bank will issue 1099s to the tax id associated with the account.  You'll have to deal with that on your tax return if you're not paying tax on that income but have a 1099 showing investment income.  You can't just shuffle the money to a different trust to avoid the income tax.  In addition, if you give any one person an amount in excess of $14,000, the excess amount is subject to federal gift tax unless you file a tax return and use some of your unified credit to cover the tax obligation. I'd suggest tha tyou consult with a tax advisor to get specific advice before doing anything. ... Read More

Because you are still married, everything you earn is presumed to be community property and subject to a just and right division. You should try to get a divorce as soon as possible. There is no effective way to "protect" the community estate at this point. You should get an attorney as soon as you can to sort out everything and help you make decisions as you move forward. What county are you in?... Read More

If your father's living trust provided for you or if he had an estate plan prior to this one that provided for you or, if he did not have a prior will or trust, you would be interested as n heir.  In either case, you would have a right to contest the validity of the change to the living trust, if you believe and have evidence that your father was not capable of understanding what he was signing or if he was unduly influenced.  Based on the very small amount of facts you have conveyed, it sounds like both probably existed or occurred. I am happy to discuss this with you further, if you are interested. My number is: (214) 965-9999. Sincerely, Kevin Spencer www.spencerlawpc.com ... Read More

In theory, the property passed at the time of death to the legal beneficiaries unless they refused the bequeath. If you would like to provide a self-serving deed in that respect so that you can close the estate, then you may. If you do not pay taxes, then eventually, if you are lucky, the taxing authorities will foreclose on the lot. Otherwise, the debt will continue to accrue.... Read More

It depends on the facts and the attorney.  Most probates which involve valid wills and the deceased has not been dead for more than 4 years should only require a retainer of about $3K.  However, if there is a potential for a will contest by another party or some issues with the will document itself then the cost could be higher.  The attorney may be asking for a large retainer because they think there are risks associated with the process, they want the client to be invested in the process or they don't really want the case.  It is hard to tell from your limited facts though why this attorney wanted so much up front. Good luck!... Read More

Generally speaking, if you are a named beneficiary in the Trust, you are entitled to receive a copy of it.  We would simply demand that she produce a copy to you.  Since it is a testamentary trust, it is contained in the Will itself, which, now that it has been offered for probate in 2013, is public record.  You can call or go to the County Clerk where the Will is filed (usually in the County of residence of the Decedent at the time of his death) and get a copy of it.  The latter is the quickest and easiest way to find out what you own in that Trust.   The Revocable Trust, presumably, was created by his Will and was funded with surviving wife's property.  She cannot withhold property that should have been in the Testamentary Trust in her own revocable trust to your detriment.  If she does so, she is violating her fiduciary duties and can be held liable for same, if you file suit.  If you do not file suit or do something to change your current position, then you are subject to her decisions and, frankly, her whim.  In other words, if you do nothing about this, nothing will happen. Call me today, if you have more questions at (2124) 965-9999. Sincerely, Kevin Spencer Please visit our website as well at: www.spencerlawpc.com ... Read More

You would need to file an Application for Determination of Heirship and obtain a Judgment Declaring Heirship, which would transfer all of the Decedent's assets into the names of the heirs according to their respective shares.  If there is a need for an administration, you would also file an Application for Administration and get you or someone appointed to act on behalf of the Estate to transfer title to the various assets, once the administration is done and the need for the administration is completed.  If various family member's cars are in the name of the Decedent, then they belong to the Decedent.  I do not know how this result occurred, so I would not be able to expand more on that issue without more information. Sincerely, Kevin Spencer www.spencerlawpc.com ... Read More

The first thing you want to determine is whether or not your father left a Last Will & Testament. If he did, that document will lay out what his wishes were for his belongings and needs to be filed in the probate court where he lived. If he did not die with a will, you and your siblings are still entitled to inherit from him, although the process may be a bit more complicated due to the fact that he died intestate and apparently married someone. For more information about this, please visit this website: http://www.nolo.com/legal-encyclopedia/intestate-succession-texas.html... Read More

Because you have stated that your sister is the "executor" I assume there is a will that has been admitted to probate.  I also understand that each of you gets 50% of the estate, including the family home.  If this is true you have the right to live in the house without having to pay rent.  You and your sister are tenants in common under Texas law and each of you is entitled to use the property without having to pay anything for that privilege. At some point the property in the estate will need to be divided between you and your sister.  If the only way to divide the assets of the estate fairly is to sell the house, she can do so.     I do not understand what you are saying about "taking away the payments to the younger sister."  If you can clarify that statement I should be able to answer that as well.   Let me know if I can do anything further.   Russel L. Robinson... Read More

No, you cannot. Because your daughter did not own much, you will need to file a small estate affidavit in the county where your daughter lived. In Texas, if a person dies with less than $50,000 worth of assets, their family can file for a small estate administration, which is an alternative to probate. This is for people who died without a will, and if your daughter did not have one, you may be eligible to do this. For more information, please see here: http://www.nolo.com/legal-encyclopedia/texas-probate-shortcuts-32076.html... Read More

The Trust could potentially be extended, but it would have to be done by a Court and with the knowledge and consent of everyone - and I mean everyone - that has an interest in the Trust, including future beneficiaries and even future born beneficiaries (who would have to be represented by an ad litem). Absent court action, the answer is NO, it cannot be extended because the Trust document controls the adminsitration of the Trust and the Trust says that it shall terminate.  There is nothing else anyone can do to make it continue, other than to file an action with the Court and, after due process, have the Court order that it be extended or changed to continue for a time certain. All of that being said, there is no guarantee that a Court would order the extension and I can honestly say that I have never asked to have a Trust extended that has been in place for some time and was set to terminate on a date certain, after everyone is of majority age.  As a result, I think you could, potentially do it, if there is no question of creditor avoidance or tax issue, if everyone was in agreement.  It may be possible to create a new trust with an extended period as well, as long as everyone who has an interest agrees. All of the above would require me to look at the Trust and understand, better, the circumstances. Sincerely, Kevin Spencer (214) 630-4554... Read More

Of course legal fees are different throughout the country. My first focus, if I were you, would be finding a good attorney.  Use websites like lawyers.com where you can compare attorneys. Maybe narrow it down to a couple of attorneys, in your area, who are specialists in estate planning.  Then talk to them about their fees and see who you feel most comfortable with. I encourage you not to use fees as the deciding factor but rather merely a factor. The fee you will pay depends on if you are doing a who new estate plan ($2,000 - $5,000) or just updating a plan ($750 - $2,000).  Good luck!  -John... Read More

Do nothing.  Your Ohio Will is still valid and can be admitted to probate in Texas following your death.  I assume the Ohio Will still reflects your wishes.  If it does not, then hire an attorney to prepare a new one that does reflect your current wishes. Kevin Spencer www.spencerlawpc.com... Read More

If the trust is in Wisconsisn, then Wisconsin law would control it, not Texas law; unless, of course, there is a venue provision in the trust that requires it to be interpreted and administered under Texas law.  In any event, jurisdiction over the trust is in Wisconsin, not Texas.  It is you that lives here in Texas, not the trust, which lives in Wisconsin. If both of your parents are deceased, then you need to check the trust, but, usually, the trusts terminate on the death of the surviving spouse (the second spouse to die), in which case, the trustee would be required to wrap up the business of the trust and distribute according to the trust's terms.  It would not be a situat9ion of you withdrawing your portion, but rather it is a situation of the trustee distributing all of the assets of the trust(s) since they have terminated. I hope I have not inferred too much into your question. Sincerely, Kevin Spencer www.spencerlawpc.com  ... Read More

Your rights depend on whether or not your husband left a valid Will.  If he left a valid Will it is his right to leave all to someone else, excepting property controlled by ERISA (such as 401k plans, ERISA insurance). If there is no Will, then it depends on the statutes concerning heirship and whether your husband had children with anyone other than you, and whether he has separate real property (before marriage, or received as a gift after marriage).  Harris County Judges have produced Venn Diagrams showing what you receive depending on what is separate real estate and what is community property.  If your husband had no children but with you and if all the property is community, then you receive all property. You have a right to the homestead (if you do not claim your own) or the equivalent amount of money even if your husband left his estate by Will to others. Texas Probate Code § 38 deals with Intestacy of a single person and to the separate property of a married person. § 38 (b) is the section pertaining to a surviving spouse.  Section 45 governs intestate succession to community property.  Homestead statutes include § 283, rights of a surviving spouse.    ... Read More

Your first step is to obtain an experienced estate and probate attorney.  If the Will is admitted then inquiry must be made to the Executor or Administrator as to when you will receive what you have been left.  If the Will has not been admitted, then your attorney can file a Show Cause action making demand of the person with the Will to produce the Will.  Under Texas Probate Code § 94 the Will has no effect until it has been admitted to probate.... Read More

Texas, I practice in Illinois so your state's laws on wills may vary a bit; however, I certainly can get you started with the basics.  You seem certain that you will be utilizing a will; however, you may realize during your meeting that a living trust is a better estate planning tool for you. In either event, be sure to bring the following lists: all of your assets-real property (bring copies of deeds and mortgages so titling matters can be ascertained), major personal property(especially anything with a title such as automobiles), financial, retirement & investment accounts numbers and how titled, insurance policies and how titled; the names of ALL your legal children including the ones no ones knows about because you've kept them secret - those are skeletons that come back to haunt (contest your will) if not specifically written out of the will; the names of your grandchildren; list of any child or grandchild who is disabled; the names of several well trusted individuals who you'd like to serve as your executor (and successor executor); copies of all marriage and divorce certificates and most importantly for the lawyer, your checkbook. In addition to the above, give some thoughts to whether or not you want to be an organ donor and also to your end of life wishes concerning whether or not you want to be kept on life support.  Hate to end on a somber note, but I hopes that helps you better prepare for your meeting....don't forget that checkbook.... Read More