Texas Probate Legal Questions

If he were to die without a will, you would be entitled to half of his community property (things acquired during your marriage), and his children would be entitled to the other half. For more information on what happens when you die without a will, or intestate, please go here: http://www.co.travis.tx.us/probate/pdfs/DnD_diagrams.pdf However, because you own a business, both you and your husband should make sure you have an estate plan in place. Depending on how your business is structured, you may want to make sure that certain things happen to your business assets and the business itself if either of you dies. Also, having a will gives you a chance to make your wishes known to your family and clear up any confusion about what your children and step children are entitled to as an inheritance (if anything). ... Read More

If the person who executed the will is still alive, he or she needs to have the will updated. If that person has already passed, the other living executor can act to dispose of the assets and liabilities of the deceased person's estate. Generally when more than one executor is placed on a will, it is assumed that if one of them is not available, the other person will be able to act as the executor. ... Read More

While the description you post is rather vague and missing facts, I think I understand the scenario.  Based upon exactly what you said, the answer is it could be, but probably not.  My opinion would be: No, it is not valid under those circumstances.  I have seen that scenario numerous times and it makes for a great will contest.  If the person is on their death bed and on meds, particularly, narcotic pain meds, then it would be almost impossible for that person to understand what a will is and the nature of the business it contains.   I sounds to me that, if what you describe happened, you would have a great will contest assuming you are entitled to take otherwise, either as an heir or through an earlier will and assuming there is enough in the Estate to fight about. I hope this answers your question. However, I am happy to talk with you about it further, if you are interested. Sincerely, Kevin Spencer (214) 630-4554... Read More

The easiest way to get a reset and more time to find an attorney is to simply file an Answer.  You can file a general denial or any attorney can file one for you, which will, essentially, function as a "contest" and will have to be taken off of the uncontested prove-up docket.  You will then receive notice of the next setting. All of this could depend upon what county you are in.  The scenario described above will be the case in all of the larger counties.  The smaller counties may take a different approach. Give me a call, if you have further questions; I am happy to answer them for you. Sincerely, Kevin Spencer Dallas, Texas (214) 630-4554... Read More

Your first step would probably be to go to the county clerk's office where your mother lived at the time she had her will prepared. It is possible the attorney had the will filed with the county clerk and made a public record. Otherwise, if your mother had a safe deposit box or other place where she stored important documents, you will want to look for the will there. Also, it is possible that someone has taken over that attorney's practice and may know where his files are stored. The State Bar of Texas may have that information. Their website is www.texasbar.com ... Read More

Start making an inventory of your possessions (if you own a home, car, stocks, antiques, jewelry, etc.) and think about what you would ultimately like to happen to them if you were to die. Would you leave everything to your spouse? Your children? Your parents? Your siblings? If you have minor children, you will also need to consider who you would like to care for them if you were to pass away. You can designate close friends or family members. Be sure to discuss this with them in advance of having your will created.  You have the right to leave your property to whomever you like, including religious organizations or charities. You simply need to think about where you'd like your belongings to go and memorialize it on paper. From there, a simple consultation with an attorney would be all you need to have your will created. ... Read More

You will need to have the will probated in order to transfer title to your sister for the sale of the home. Otherwise, the house will remain in your deceased mother's name. Because your mother left a valid will, you need to have that will probated; however, if your mother did NOT have a will and had owned less than $50,000 in assets (excluding her homestead, which I'm assuming is this house), you may have been able to do a small estate administration, which is like an abbreviated form of probate. This would allow you to sell your mother's property to your sister and collect on any money she may be entitled to (pensions, 401k accounts, etc.) Because your mother left behind a will, however, this is not an option for you. ... Read More

His wife is responsible for the maintenance, taxes, and insurance during her lifetime because she owns the home during her life. A life estate means the person who receives the interest (your father's wife) has the right to occupy and use the home during her lifetime and as such is responsible for the care and maintenance of the home during that time. Once she dies, the home belongs to all 4 siblings equally, and then the four of you will be responsible for the maintenance and related upkeep of the home. ... Read More

I do not know exactly why you are asking this question, but I assume you have a will of a decedent in your possession.  You ask if probating it is necessary and the answer is YES in order for it to be binding upon anyone.  It may be valid and, if so, it would be valid at the moment of death and would speak from the moment of death.  However, it is not binding on anyone because a Court has not signed an order saying that is the VALID Last Will & Testament of the decedent.  Once that is done it is binding upon the world.  If there is no need for an administration, then you can probate it as a muniment of title (meaning, as evidence of title), which would transfer title upon its probate, to all of the named beneficiaries.  A Will that is not probated is meaningless and serves no purpose.  You have to convert it to a meaningful legal document by having it probated by a court of proper jurisdiction. An Estate less than $700,000.00 is not insubstantial.  I would recommend spending a little to make sure title to such an Estate is properly transferred. Sincerely, Kevin Spencer www.spencerlawpc.com ... Read More

Wills are not officially "read".  Wills are offered for probate and, if not contested, are admitted to probate.  Once probated (found to be the valid last will and testament of the decedent), all named beneficiaries are entitled to receive notice under Texas Probate Code Section 128A.  The notice will include a copy of the Will and will tell you that it has been probated, that an executor has been appointed and that you are a beneficiary.  That is all the notice you will get.  If a later will was executed that excluded you, you will never receive notice.  No notice is required to be given to anyone directly prior to the Will being probated.  All that is required is that a Citation be posted on the bulletin board at the courthouse in the county in which the decedent resided at the time of death.  You need to continue to contact the county clerk of that particular county to see if a will for the decedent has been filed for probate.  You can then go to the courthouse and see what will has been offered and whether you are in it or whether you need to contest it.  This is the only way to protect your rights.  Once it is probated, you have two years from the date the order admitting it to probate was signed to file your will contest. I hope this helps you   Kevin Spencer www.spencerlawpc.com   ... Read More

If there is no beneficiary named on the insurance policy, then all proceeds would be payable to the Estate of the Decedent.  As a result, if you probate the Will as a Muniment of Title (essetially, meaning: evidence of title), you will be entitled to the insurance proceeds.  A muniment of title is the simplest way to probate a will as it does not open an administration, but merely serves a title document for all of the Decedent's property. Hope this helps. Sincerely, Kevin Spencer www.spencerlawpc.com ... Read More

If your father owned less than $50,000 in assets excluding his homestead, you may be able to file a small estate administration in the county where he last lived. This would allow you to claim that you are his only living relative. The paperwork is fairly straightforward. You would list all of his assets, all of his debts, all of his remaining relatives, and you would sign an affidavit of your relationship to him. Once the courts have processed your paperwork, you will get an Affidavit of Heirship that will be sufficient for you to claim his property and settle any of his debts. As far as the custody of your daughter issue, I would need more information here. Is your daughter's other parent in the picture? How did your father get custody of your daughter to begin with? You may need to return to family court to sort that issue out.   For more information, please contact Kimberly Moss at 713-574-8626 or visit my website at http://mosslawhouston.com/houston-wills-estate-planning/... Read More

First of all, I want to tell you I'm sorry to hear about your son's declining condition. Secondly, it sounds as if your son has the capacity to tell you what his needs are, which is good. You need to have a statutory durable power of attorney as well as a medical power of attorney drafted to protect his needs. Also, you may want to consider having a will drafted for him as well if he has any property or children. These documents are not very complicated or expensive to have done. Simply schedule an appointment with an attorney so that he or she may ask some questions about your son's needs and make sure his wishes are carried out. These documents will allow you to make medical decisions for him, pay his bills, cash his checks, do his taxes, and essentially act on his behalf during his illness. Although he is indigent, you did not mention your own financial status. You may be able to find an attorney willing to work on a payment plan or a reduced fee. For more information, please feel free to contact Kimberly Moss, Esq. at 713-574-8626 or visit my website at http://mosslawhouston.com/houston-wills-estate-planning/... Read More

Unless your parent held the property with you as Joint Tenants with Right of Survivorship, or deeded the property to you prior to death reserving a life estate, it will be necessary to rpobagte the will.     This is based on the facts you have provided.  Additional facts might well result in a different answer.  An attorney would have to revied the title to the property and the contents of the will in order to know how to proceed.   It is customary to probate the will in the county of your parent's residence at the time of death.  You might wish to consult an attorney in that area.   I hope this helps.   Russel l. Robinson... Read More

All of what you wrote sounds a little whacky and out of the ordinary.  But, to answer your questions, you can alter the content of an order depending upon when it was signed, what it did as an order and in what context it was done. The court would not have appointed your attorney as the mediator of your case.  Mediators, by definition, have to be neutral. How was the order altered?  Where is your case located?  Is it in a statutory probate court?  Time is of the essence with orders, so it is very important for you to move fast. Sincerely, Kevin Spencer www.spencerlawpc.com... Read More

What you are describing sounds like a house owned by multiple people. The law calls this "co-tenancy." When people own property together, there are some tricky things that can happen. Texas law presumes that if two non-spouses are named as co-owners, and nothing more is said, then they are ¿tenants-in-common.¿ This means they each person owns an undivided one-half interest in the property but there is no automatic right of survivorship (meaning the others don't automatically inherit the deceased person's share of the property). When one co-owner dies, the interest of the deceased co-owner goes directly to that person¿s heirs ¿ either by will or by intestate succession (i.e., according to the Probate Code) ¿ not to the other co-owner. In order to remedy this, all of you are going to have to make some agreements about how the property will be divided when each of you dies and discuss this with your family (hopefully as a unified front). For more information about this issue, please go here: http://www.lonestarlandlaw.com/Joint-tenancy.html... Read More

A small estate affidavit is appropriate when someone died with $50,000 or less in assets, not including their homestead, which is usually where she or she lived. From what you have stated, it looks like you may be able to file a small estate affidavit in the county where your mother lived. The form is can be found on the county clerk's website in most Texas counties. The form is usually pretty easy to complete, but I would still recommend speaking to a local attorney about whether this option is appropriate for you and your family. If you could let me know where you are located, I'd be happy to help you find the forms and answer any questions you may have. For more information about me, please feel free to visit my website: www.mosslawhouston.com... Read More

Based upon the facts which you have given me it will be necessary for someone to apply to the probate court to be pointed administrator of your brother's estate.  Under Texas law, a person dying without a spouse or children will have his estate divided into to portions with one-half to go to his father and one-half to his mother.  If one or both of the parents are deceased that parent's share goes equally to brothers and sisters.   Until someone is appointed administrator there is no one with legal authority to deal with the property or the tenants.     My conclusions are based upon the facts you gave me.  If other material facts are discovered the result could be different. I hope this helps.   Russel L. Robinson... Read More

You cannot "gain full access to this money without being taxed."  Why on earth would you think you could avoid being taxed in this scenario?  All inheritance is taken subject to administration, which, by definition, includes dealing with and paying all taxes owed.  If the Estate or fund is consumed by taxes and other Estate expenses, then you get no inheritance.  All of the taxes and expenses of the Estate come first, you get whatever is left to the extent of your bequest. The Executor will give you the money, if it passes through the Estate.  If it is a non-probate asset, then it does not pass through the Estate, meaning, it passes according to the account agreement/contract.  In that instance, it is yours and title passes at the moment of death.  It would only be subject to taxes and other estate expenses, if the estate is insolvent.  THIS IS TEXAS LAW, NOT IOWA OR ILLINOIS LAW. I hope this answers your question(s). Sincerely, Kevin Spencer www.spencerlawpc.com... Read More

First thing to know is that the Will does not control the distributioon of the retirement account, unless it was payable to the Estate or became payable to the Estate as a result of a lapsed beneficiary designation.  If there was a viable, valid beneficiary designation, then it would control the retirement distribution rather than his Will.  In addition, if it is an ERISA retirement plan, this is even more true because the Federal ERISA law preempts (trumps) all state law in relation to the distribution. A question I have is: how did she get possession of his retirement money?  If it was payable to her after his death, then she owes you nothing and you cannot win.  The fact that she is making a "small settlement" offer indicates she either has a guilty conscience (has done something wrong) or, simply, that she wants to end any dispute before it starts. Based upon your basic question, it does not appear that you can do much about this situation, short of your father doing something when he was incapacitated or unduly influenced or some obvious fraud.  You also need to decide whether taking action is worth it.  You did not state the value of the retirement account, so the cost-benefit analysis could not be made.  If the retirement is relatively small in relation to litigation costs, it may not be worth it to throw your good money (in your pocket) chasing the "EVIL step-mother."  I cannot answer this question with the information you have provided. Sincerely, Kevin Spencer www.spencerlawpc.com... Read More

You are entitled to all of the rents from the condo from the date of death, but only if the Estate did not need that rent to fund the administration.  It is not as simple as that because the Estate has a particular hierarchy of what funds to use first and rents from a specific bequest wouuld be very low down on the list; this is established by Texas statute.  In other words, the Estate would have to exhaust other funds before it could use your rental income to pay Estate expenses.  Another issue is whether the Estate was properly and economically such that there was no unreasonable delay in completing the administration that would have caused the Estate to be exhausted, such that it needed to use your rental proceeds. The answer to your question is that you are entitled to those proceeds, but it can get complex in determining whether those proceeds could be used for Estate expenses and whether they were properly used for same.  This is all on the Executor or Administrator of the Estate, which has the burden to prove both of the latter issues. After the condo is transferred to you, you are the owner and have all of the rights of any owner to enforce leases, collect rents and evict, if necessary. I hope this answers your question(s). Sincerely, Kevin Spencer www.spencerlawpc.com... Read More