Texas Probate Legal Questions

You need to look the deed to your house:  if it states that you are joint owners with rights of survivorship, then you do not need to do anything.  The house automatically became yours when your husband died.  When you sell it, you will need to provide the buyer with his death certificate to prove that you are the sole owner, but nothing needs to be done until then as far as the deed goes.  If you are tenants in common or the interests in the property are divided between you in some way, then there needs to be a personal representative of his estate appointed through the probate process who can transfer his interests.  These interests would be transferred pursuant to his Will or, if he did not leave a Will, to the law of intestacy for Texas. ... Read More

An executor usually does not deal with life insurance payouts - those are considered a contract between the insurance company and the insured, and the named beneficiary will be paid directly once they fill out the necessary claim forms.  If his wife has passed away, the insurance company will look to see whether your father named an alternate beneficiary - if so, they will pay out to that person.  If not, pay out depends on the insurance company's policy, but they probably will pay your father's estate.  Then, as executor of the estate (once you are appointed by the probate court), you would distribute these funds in accordance with your father's Will.  If his Will gives funds to his stepsons, then they are entitled.  If he does not, they are not because they are not considered to be his children.  The same applies to you, since you were not adopted.  ... Read More

You can place a demand upon your sister to deliver all originals or copies of Wllls to the court clerk and, if she refuses, you can file a Motion to Show cause requiring her to do so.  Otherwise, if she will not comply or do anything, you need to file an Application for Administration and an Application for Heirship. The first is to get control of the assets of the Estate and the second is to determine the heirs and theiir shares of the Estate - meaning, the amount (percentage) of title transferred to each heir. We can certainly help you out with this, but, obviously, it will require a retainer and the size of the retainer will depend upon the county where the Estate is located. Sincerely, Kevin Spencer (214) 965-9999 www.spencerlawpc.com ... Read More

No, you need two witnesses.  Ideally, you should have two witnesses and a notary. The witnesses can be anyone over the age of 14. An alternative is to do a "holographic" Will.  This requires that the entire Will be in your writing and signed by you.  No witnesses are required for holographic Wills.  ... Read More

In cases where retirement plans do not designate a beneficiary, the agreement with the financial entity administering the plan determines the default beneficiary.  It is usually a surviving spouse, but sometimes the default beneficiary is the estate of the deceased person.  For a surviving spouse, probate is not necessary.  For an estate, probate is required. Most savings accounts do not have default beneficiaries. Instead, they are estate assets that require probate.  Again, you can refer to the legal agreement with the financial entity holding the savings account to determine what happens to an account when an owner dies.  The bank may not be willing to give you specific information about this account, but should provide you with their policy or a copy of their typical agreement for that sort of account.   If the total estate assets are less than $50,000, you can use a simplified probate process.  If you search "small estate affidavit Texas" you will find details of this option.      ... Read More

It sounds like your wife's father passed away but his assets were not distributed until after your wife died and were distributed only among his living children.  If this is the case, your wife's estate may have a claim against her father's estate.  If you are the executor of your wife's estate, you can file this claim on behalf of her estate in the probate court where her dad's Will was probated.   It also may be the case that his assets were in trust and the terms of the trust apply to how they are distributed.  If an attorney was involved with your father-in-law's estate, you may be able to get some information from her or him.  Otherwise, you can contact the probate court and ask about fiing a claim against the estate or challenging how it was distributed.  Good luck.  ... Read More

There is a "Find a Lawyer" tab on this website that can help you find an estate planning attorney for your grandmother.   A "Living Will" is a document that sets forth someone's preferences for end-of-life care.  A "Will" is a legal document that provides for how someone's assets should be handled and distributed upon their death.  If an heir of someone who has died believes that their relative's Will is not legal - for instance, the person who signed the Will had dementia to the extent that they could not have understood what they were signing - then they can contest that Will by bringing an legal action in probate court.  I hope this explanation helps.  ... Read More

Based upon the facts you have conveyed, you can contest his Will, as long as you have the original or a copy of the previous one that includes you and as long as there is no question about the validity of the 2011 Will. The will contest will also depend upon what you are to receive under the 2011 Will. If it is a $10,000.00 bequest for instance, it may not be economically feasible to contest. So, there are questions that need to be answered to give you the best response to your inquiry. I would be happy to answer more of your questions, if you want to give me a call. Please visit my website at: www.spencerlawpc.com Kevin Spencer (214) 965-9999... Read More

Yes, you should hire your own attorney because "signing-up" to be an executor is an enormous task with high risk.  You should get proper advice before agreeing to accept the appointment.  Of course, as the ex-spouse, there are extra steps you will have to meet before becoming eligible to be appointed. I would be happy to answer your questions, if you want to call me. Please visit our website at: www.spencerlawpc.com Kevin Spencer (214) 965-9999... Read More

The answer to your question depends on exactly how the deed is worded. In any event, your parents can make provisions for their share of the property in their respective wills. Generally, a spouse leaves their share to the other spouse and then when the surviving spouse dies, they devise to the children. As to the son's interest, it would, again, depend on the exact wording of the deed. If he refuses to give up his interest by giving or selling it to the parents, he would own the property along with the surviving spouse and then the children.... Read More

If your father left everything he owned, via a Will, to his Wife, then nothing he said verbally about what he wanted her to do with the property matters.  Once the Will is probated, the entire Estate belongs to her and she can do with it as she wishes, including leaving it to someone else (outside your family) in her Will. You have the option of contesting that Will, if your father lacked testamentary capacity or was unduly influenced, but we would need to examine the facts surrounding his capacity, the execution of the Will and whether anyone had the ability to unduly influence him. There is the possiblity of arguing your father left it to his wife and, in the process, created a secret trust - meaning, he expected her to hold the property for her benefit and for your benefit and to provide for you all during her life or when she dies, depending on what he said. This is a very fact intensive case and requires good evidence of his intent to create the secret trust. If it was something he said before he executed the Will or just something he said in passing or you heard him say it once, then there may not be a non-frivolous case for asserting a secret trust.  We would need to know more and to analyze the facts more to determine whether such assertion could be made. Absent the ability to assert a secret trust, your father left everything to his Wife and, once the Will is probated, it is hers, absent a will contest or a secret trust. I hope this helps. Sincerely, Kevin Spencer (214) 965-9999 www.spencerlawpc.com ... Read More

THank you for your inquiry. In order to hold the Executor accountable, you should, initially, send a demand to the Executor for information and an accounting. Depending on the length of time the administration has been opened, you can compel the Executor, through the court, to prepare a formal, statutory accounting.  If you are aware of mismanagement, misappropriation or embezzlement or that the Executor is about to do any of them, then you can file for his, her or its removal; there are certain procedures that need to be followed in relation to the removal. If you discover the mismanagement or embezzlement and money is missing, then you will also sue the Executor for breach of fiduciary duties, among other possible causes of action, and seek damages. All of the above must be done in a lawsuit; meaning, you cannot remove the Executor or obtain damages against the Executor without taking the matter back to Court. You will be required to hire an attorney for this endeavor, for many reasons; one of which is, it is a very complicated process that requires strict compliance with the removal statute. Give us a call today, if you would like to discuss it further. Sincerely, Kevin Spencer (214) 965-9999 www.spencerlawpc.com... Read More

You should find a lawyer in Texas to handle recovering the funds for you. However, you will have to weight to cost of a lawyer compared to how much will be recovered. It may be better for you to file the paperwork yourself. The letter likely has some information on how to proceed or maybe there's a number to call to get more information.... Read More

There is no fraud on the community post-death; such a claim that may be made during the divorce to adjust property the "just and right" property division is converted, simply, to a claim for money damages.  The Executor should immediately demand return of the Estate's share of the funds and, if he refuses to return them, the Executor has a statutory duty to pursue (file suit against) him for the return of such funds.  Failing to pursue those funds is a breach of the Executor's fiduciary duties.   The Executor cannot wait until the surviving spouse's death because, if that occurs after the statute of limitations runs, the claim will have expired.  The statute of limitiations is tricky post-death, but, generally, it would be 2 or 4 years statute of limitations depending on the claims.  The date the deceased spouse knew about the claim and the date of the Executor's appointment comes into consideration in determining the statute of limitations as well. The only option regarding evading execution is for the Executor to determine if the surviving spouse is "judgment proof" - meaning, it will cost more to pursue and get the judgment and collect the judgment than can be recovered.  If the latter is a fact or everyone is in agreement that it is a fact, then the Executor should get all of the beneficiaries to agree that he or she can abandon such claim and release that Executor from the requirement to pursue it. You can see there are a lot of complicated issues here and an experienced estate litigator is required to help you or the Executor or both wade through all of them.   I am happy to discuss this further, if you are interested.  My number is: (214) 965-9999. Sincerely, Kevin Spencer www.spencerlawpc.com ... Read More