Texas Probate Legal Questions

I would have to see the deed your mother signed in order to offer a better answer. However, it sounds like your mother sold the property for $60,000.00 or double that amount. (I can't tell if you and your sister got $60K each.) In any event, if you received the money for the land, you may not have any recourse. Again, I would need to see the documents and get clarity on the sale to offer a better answer.... Read Answer

The best thing for you to do is to contest the Will, if there are grounds for doing so and evidence to support them.  The most common grounds for contesting a Will is that the testator lacked testamentary capacity at the time the Will was signed or that he/she was unduly influenced to sign a Will, they would not otherwise have signed.  You can also contest based upon fraud or forgery.  There is a lot more to consider in making the decision about whether to contest or whether you can contest. If you are successful in setting aside the Will, then the Trust goes away and is eliminated as an issue. I would be happy to discuss your situation with you further, if you are interested.   Sincerely, Kevin Spencer (214) 965-9999 www.spencerlawpc.com... Read Answer

When a person lacks the mental capacity to sign a Will, they are said to lack testamentary capacity.  When a person lacks testamentary capacity, they are no longer capable of executing a new Will.  There are no options.  A person's right to make a Will cannot be abridged, so anyone can write a Will at any time.  But, if a Will is executed at a time when the testator (person signing the Will) lacks testamentary capacity, the Will is invalid and should not be probated.  If shown to be invalid, it cannot be probated. Wills do not have to be prepared by an attorney, but should be prepared by an attorney. Wills do not have to be notarized, but simply signed in the presence of two witnesses. I hope this answers your questions. Sincerely,  Kevin Spencer (214) 965-9999 www.spencerlawpc.com... Read Answer

You need to give your child control via a Durable Power of Attorney and a Medical Power of Attorney, properly executed.  The latter can be given to your child immediately or the authority can spring into existence WHEN you lose your capacity.  You can also specifically disqualify your husband from serving in that capacity. You also need to prepare a Will that excludes your spouse from inheriting anything from you. The best advice to you is to immediately get divorced.  You will still need to sign the cited documents, but a divorce will eliminate the spouse from all of these issues. Sincerely, Kevin Spencer www.spencerlawpc.com... Read Answer

I am sure the information you have given does not fully convey everything that is going on, so I cannot comment "globally" about the situation.  However, the answer to your most basic question, "which one (Will) would help me best", is impossible to answer without knowing the size of the Estate.  On the surface, assuming the Estate is worth more than $250,000.00, the Will that divided everything in half would be the better one for you.  If the Estate is worth less than $250,000, then the $125,000.00 specific bequest to you is better.  So you can see, the answer depends on the size of the Estate. You have also described non-probate assets, i.e., the POD accounts, life insurance, etc.  These (non-probate) assets are not governed by any Will, but rather, are governed by the contracts or agreements that created the interest.  In other words, whomever is named as the beneficiary of each of those, i.e., the designated beneficiary, is the one who takes those assets regardless of the language in the Will.   I will tell you that you should not just let the money your brother took go.  You are entitled to fight to establish your interest in the Estate and you also entitled to fight to get property that belonged to the Estate or that should be in the Estate back.  You have to decide to file suit against your brother to do all of the latter, so it is a decision you need to make.  We can potentially help you with the situation, depending on the size of the Estate and its location.  What county did your father reside in when he died? If you have any questions, please e-maill me at kevin@spencerlawpc.com or call my office and talk to me or any of my associates at (214) 965-9999. We wish you the best of luck. Sincerely, Kevin Spencer www.spencerlawpc.com... Read Answer

Yes, if the house is in your names Individually, then, upon each of your death, a probate will be required to transfer title to the house.  You can transfer your house into an inter vivos (made during your lifetime) trust to avoid probate.  A living trust is something different with a different purpose.  Really, there is no reason to avoid probate in Texas.  Our independent administration system is very efficient and easy, so, if avoiding probate is the motivation, I do not recommend it.  If you die a resident of Hawaii, California, Oklahoma, New York or other states, then avoid probate at all costs; but, do not need to in Texas. I recommend you write out a holographic (handwritten) will or hire an attorney to prepare a formal will for you, so you can get it executed properly. Kevin Spencer (214) 965-9999 www.spencerlawpc.com... Read Answer

You have to hire an attorney and I recommend hiring one in the area of estate and trust litigation; particularly one with experience with will contests.  You have to file a lawsuit claiming the Will is invalid, however, if no will has been produced or filed, then there are other mechanisms you can use to get control of the Estate and bank accounts.  I assume the Estate is in Texas.  We are happy to travel all over the state of Texas for this type of case. Sincerely, Kevin Spencer (214) 965-9999 www.spencerlawpc.com... Read Answer

In short, No.  An Executor/Executress of an estate has a duty to follow the instructions of the will as set out by the Testator (the person who died and left the will).  Before there can be a distribution of the assets of the decedent, the Will first needs to  be admitted to probate.  This means an "Application to Admit Will to Probate" needs to be submitted to the local probate courts.    ... Read Answer

No, you have equal rights - meaning, you are treated the same as any other child of the Decedent.  Biological children and adopted children are the same under Texas law.  In other words, you are not "punished" for being adopted.  You would be entitled to the same inheritance share you would receive if you were a biological child.  If you were not legally adopted, but you grew up as a child of the Decedent and the Decedent treated you as a child, then you also would be entitled to a share of the Estate, even though there was no actual, court-order, legal adoption.... Read Answer

I am sorry for your loss. The type of probate that is needed will depend on the type and amount of property needing to be transferred. In fact, probate is not even required if there are no probateable assets. You may want to contact an attorney to determine whether her estate even needs to be probated.... Read Answer

Probate is a legal proceeding that occurs to execute upon a decedent's will. Usually the executor files the application to probate. Sometimes other interested parties file the application, though. The probate is filed so that the assets in the decedent's estate can be legally transferred to the beneficiaries named in the will. Not all wills must be probated. In order to probate a will, there should be assets subject to probate. In other words, there are quite a few other ways to transfer the assets during the lifetime of the decedent. Additionally, depending upon the facts regarding the decedent's estate, there are different ways to administer the estate. Probating a will is merely one of them. You should contact an attorney for more specific information regarding your matter.... Read Answer

Absolutely, in Texas, everyone is entitled to prepare a holographic (handwritten) will.  The requirements are simply that the entire document be in the handwriting of the testator, signed and dated.  It is best to make sure nothing else is written on the page, if possible.  It is that simple and to the extent the holographic will changes a prior will, the later will changes or trumps the prior version as to that particular topic or conflict. Here is my Facebook post on the subject: A holographic will, i.e., a handwritten will, is valid in Texas. The only requirements are: (1) the entirety of the will must be solely in the handwriting of the testator (the person making the will) and (2) the handwritten will must be signed and dated by the testator. Witnesses are not required. TIP: Write your will on a clean sheet of paper - meaning, avoid letterhead, pre-printed paper or documents with other printing or writing. Good luck and make sure (a) to dispose of ALL of your property, (b) to appoint an Independent Executor and (c) if desired, that the Independent Executor serve without bond. If you have minor children, be sure to name a guardian of them in the event you are the second of their parents to die. Like my firm on Facebook: www.facebook.com/spencerlawpc  I hope this helps, but you can call us anytime. Sincerely, Kevin Spencer (214) 965-9999 www.spencerlawpc.com ... Read Answer

In Texas, because your father died without a Will, the State of Texas writes a Will for him.  His Estate will pass according to the Texas intestacy laws upon a Court signing a Judgment Declaring Heirship. You have to file same in a court and you have to be represented by an attorney; it will also require the appointment of an Attorney Ad Litem for Unknown Heirs (a statutory requirement).  So, unfortunately, this process is a little bit more expensive than probating a will, but it is the best and only way to ensure actual transfer of title to your father's assets from his Estate to each of his heirs in their respective intestate percentages. Sincerely, Kevin Spencer (214) 965-9999 www.spencerlawpc.com ... Read Answer